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

OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to use might apply however are mostly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and cheaply train a design that's now almost as great.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to intellectual residential or commercial property theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

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

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

BI positioned this concern to specialists in technology law, who said tough DeepSeek in the courts would be an uphill battle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time proving an intellectual residential or commercial property or copyright claim, these legal representatives stated.

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

That's since it's uncertain whether the answers ChatGPT spits out qualify as "imagination," he stated.

"There's a doctrine that states innovative expression is copyrightable, however facts and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a substantial concern in copyright law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unguarded realities," he included.

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

That's not likely, the lawyers stated.

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

If they do a 180 and tell DeepSeek that training is not a fair use, "that may return to kind of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you simply stating that training is fair use?'"

There may be a difference between the Times and DeepSeek cases, Kortz added.

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

"But this still puts OpenAI in a pretty predicament with regard to the line it's been toeing regarding fair use," he included.

A breach-of-contract suit is most likely

A breach-of-contract claim is much likelier than an IP-based claim, though it includes its own set of issues, stated Anupam Chander, king-wifi.win who teaches technology law at Georgetown University.

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The terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their content as training fodder for a completing AI design.

"So possibly that's the suit you may potentially 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 design to do something that you were not enabled to do under our contract."

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

There's a bigger drawback, though, experts stated.

"You should know that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Expert System Terms of Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Information Technology Policy.

To date, "no model developer has in fact tried to impose these terms with financial charges or injunctive relief," the paper says.

"This is most likely for good reason: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part because model outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted recourse," it states.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts generally will not impose arrangements not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, are constantly difficult, Kortz said.

Even if OpenAI cleared all the above hurdles and won a judgment from a United States court or arbitrator, "in order to get DeepSeek to turn over cash or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the grace of another very complex area of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, complicated, laden procedure," Kortz included.

Could OpenAI have protected itself much better from a distilling incursion?

"They could have used technical steps to block repetitive access to their website," Lemley stated. "But doing so would also interfere with typical consumers."

He added: "I don't believe they could, or should, have a legitimate legal claim versus the searching of uncopyrightable details from a public site."

Representatives for DeepSeek did not right away respond to a request for comment.

"We know that groups in the PRC are actively working to utilize methods, including what's understood as distillation, to attempt to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.