OpenAI has Little Legal Recourse Versus DeepSeek, Tech Law Experts Say - 148

OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's regards to usage might use however are mainly unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press statements, tandme.co.uk they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to quickly and cheaply train a model that's now nearly as good.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, informed Business Insider and lovewiki.faith other outlets that it's examining whether "DeepSeek might have wrongly distilled our models."

OpenAI is not stating whether the business plans to pursue legal action, rather assuring what a spokesperson described "aggressive, proactive countermeasures to safeguard 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 took legal action against on in an ongoing copyright claim submitted in 2023 by The New York Times and other news outlets?

BI posed this question to professionals in technology law, who stated 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 proving an intellectual residential or commercial property or copyright claim, these attorneys said.

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

That's because it's uncertain whether the answers ChatGPT spits out certify as "creativity," he stated.

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

"There's a huge concern in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected realities," he added.

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

That's unlikely, the lawyers stated.

OpenAI is already on the record in The New York Times' copyright case arguing that training AI is a permitted "fair use" exception to copyright defense.

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

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

"Maybe it's more transformative to turn news posts into a model" - 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 concerning 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 problems, stated Anupam Chander, who teaches technology law at Georgetown University.

Related stories

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

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

"Not, 'You copied something from me,' but that you gained from my model to do something that you were not permitted to do under our contract."

There might be a hitch, Chander and surgiteams.com Kortz said. OpenAI's regards to service need that a lot of claims be fixed through arbitration, not lawsuits. There's an exception for suits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

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

"You must know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. 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 design creator has in fact tried to impose these terms with monetary charges or injunctive relief," the paper states.

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

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

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

Even if OpenAI cleared all the above hurdles and won a judgment from an US court or galgbtqhistoryproject.org 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 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 founding of the US.

"So this is, a long, made complex, fraught procedure," Kortz added.

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

"They could have used technical measures to block repeated access to their website," Lemley said. "But doing so would also disrupt typical consumers."

He included: "I do not believe they could, or should, have a legitimate legal claim against the searching of uncopyrightable details from a public site."

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

"We understand that groups in the PRC are actively working to utilize approaches, including what's called distillation, to try to replicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.