OpenAI and genbecle.com the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual property and contract law.
- OpenAI's terms of use might apply but are mainly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

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

The Trump administration's top AI czar said this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not stating whether the company plans to pursue legal action, instead guaranteeing what a representative termed "aggressive, proactive countermeasures to secure our technology."

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

BI presented this concern to experts in technology law, who said challenging DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing a copyright or copyright claim, these attorneys said.

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

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

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

"There's a huge question in copyright law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always unprotected truths," he added.

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

That's not likely, the attorneys said.

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

If they do a 180 and tell DeepSeek that training is not a fair usage, "that may come back to kind of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you just stating that training is fair usage?'"

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

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

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

A breach-of-contract suit is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it features its own set of issues, said Anupam Chander, 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 using their content as training fodder for a contending AI design.

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

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

There might be a drawback, Chander and Kortz said. OpenAI's regards to service require that a lot of claims be solved through arbitration, not lawsuits. There's an exception for claims "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a larger hitch, though, specialists stated.

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander said. He was referring to 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 really attempted to enforce these terms with financial charges or injunctive relief," the paper states.

"This is likely for good reason: we believe that the legal enforceability of these licenses is questionable," it adds. That's in part due to the fact that design outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal option," it states.

"I think they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not impose agreements not to contend in the lack of an IP right that would prevent that competitors."

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

Even if OpenAI cleared all the above obstacles and won a judgment from an US court or wiki-tb-service.com 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 mercy of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that extends back to before the starting of the US.

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

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

"They could have used technical procedures to block repetitive access to their site," Lemley stated. "But doing so would also interfere with typical clients."

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

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

"We understand that groups in the PRC are actively working to use techniques, including what's understood as distillation, to try to reproduce advanced U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.