OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say

OpenAI and the White House have implicated DeepSeek of to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI's terms of use might apply but are mostly unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press declarations, they stated the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting information trove to quickly and cheaply train a model that's now nearly as excellent.

The Trump administration's top AI czar stated this training process, visualchemy.gallery called "distilling," amounted to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not saying whether the company plans to pursue legal action, instead guaranteeing what a spokesperson termed "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it take legal action against DeepSeek on "you took our material" grounds, similar to the premises OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI postured this concern to professionals in technology law, timeoftheworld.date who stated tough DeepSeek in the courts would be an uphill struggle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time proving a copyright or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - suggesting the responses it generates in reaction to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's due to the fact that it's uncertain whether the answers ChatGPT spits out qualify as "imagination," he said.

"There's a doctrine that states imaginative expression is copyrightable, but realities and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a substantial question in intellectual property law today about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily vulnerable facts," he included.

Could OpenAI roll those dice anyway and declare that its outputs are protected?

That's not likely, the legal representatives said.

OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is an allowable "fair usage" exception to copyright protection.

If they do a 180 and inform DeepSeek that training is not a reasonable use, "that might return to type of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you simply saying that training is reasonable use?'"

There might be a distinction in between the Times and DeepSeek cases, Kortz added.

"Maybe it's more transformative to turn news articles into a design" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a design into another design," as DeepSeek is said to have actually done, Kortz said.

"But this still puts OpenAI in a quite predicament with regard to the line it's been toeing relating to reasonable use," he added.

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it comes with its own set of problems, said Anupam Chander, who teaches technology law at Georgetown University.

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The terms of service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid using their material as training fodder for a competing AI design.

"So perhaps that's the lawsuit you may perhaps bring - a contract-based claim, not an IP-based claim," Chander stated.

"Not, 'You copied something from me,' but that you took advantage of my model to do something that you were not enabled to do under our contract."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service require that many claims be solved through arbitration, not lawsuits. There's an exception for claims "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

There's a bigger hitch, however, experts said.

"You must know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Artificial Intelligence Terms of Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no design creator has actually attempted to implement these terms with financial charges or injunctive relief," the paper says.

"This is likely for good reason: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part because design outputs "are mainly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal recourse," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts generally won't impose agreements not to compete in the absence of an IP right that would prevent that competition."

Lawsuits between parties in various nations, oke.zone each with its own legal and enforcement systems, are always tricky, Kortz said.

Even if OpenAI cleared all the above difficulties and won a judgment from an US court or arbitrator, "in order to get DeepSeek to turn over money or stop doing what it's doing, the enforcement would come down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another very complex location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that extends back to before the starting of the US.

"So this is, a long, complicated, filled process," Kortz added.

Could OpenAI have safeguarded itself much better from a distilling attack?

"They might have used technical steps to obstruct repeated access to their site," Lemley said. "But doing so would likewise disrupt normal consumers."

He added: "I do not believe they could, or should, have a legitimate legal claim versus the browsing of uncopyrightable info from a public website."

Representatives for DeepSeek did not immediately react to a demand for comment.

"We know that groups in the PRC are actively working to utilize techniques, including what's known as distillation, to try to reproduce sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.