OpenAI and the White House have of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to use might apply but 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 stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to rapidly and cheaply train a model that's now almost as great.

The Trump administration's top AI czar stated this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our models."

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

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

BI positioned this concern to professionals in innovation law, who said difficult 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 hard time showing a copyright or copyright claim, these attorneys said.

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

That's since it's unclear whether the responses ChatGPT spits out certify as "creativity," he stated.

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

"There's a huge question in copyright law today about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily unguarded truths," he included.

Could OpenAI roll those dice anyhow and claim that its outputs are secured?

That's not likely, the lawyers said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is an allowed "fair usage" exception to copyright defense.

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

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

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

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

A breach-of-contract claim is more most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it includes its own set of issues, stated 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 utilizing their content as training fodder for a competing AI model.

"So possibly that's the suit you might potentially bring - a contract-based claim, not an IP-based claim," Chander stated.

"Not, 'You copied something from me,' however that you gained from my design to do something that you were not permitted to do under our agreement."

There might be a drawback, Chander and Kortz stated. OpenAI's regards to service require that most claims be dealt with through arbitration, not claims. There's an exception for claims "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a bigger drawback, though, specialists said.

"You must know that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander stated. He was describing 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 Infotech Policy.

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

"This is likely for great factor: we believe that the legal enforceability of these licenses is questionable," it adds. That's in part since design outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and oke.zone Abuse Act "offer minimal recourse," it states.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically will not implement arrangements not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits between parties in various countries, each with its own legal and enforcement systems, are always tricky, Kortz stated.

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

Here, OpenAI would be at the grace of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, made complex, stuffed process," Kortz included.

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

"They might have used technical measures to obstruct repetitive access to their website," Lemley stated. "But doing so would likewise disrupt regular clients."

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

Representatives for DeepSeek did not instantly react to an ask for comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's understood as distillation, to attempt to duplicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed statement.