OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under intellectual home and agreement law.
- OpenAI's terms of usage 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 stated the Chinese upstart had actually bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to quickly and cheaply train a model that's now almost as great.
The Trump administration's leading AI czar stated this training procedure, called "distilling," totaled up to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek might have wrongly distilled our designs."
OpenAI is not saying whether the business prepares to pursue legal action, rather guaranteeing what a representative termed "aggressive, proactive countermeasures to safeguard our innovation."
But could it? Could it sue DeepSeek on "you took our material" premises, just like 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 postured this concern to experts in innovation law, who stated challenging 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 a copyright or copyright claim, these legal representatives said.
"The concern is whether ChatGPT outputs" - indicating the answers it creates in response to queries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.
That's since it's unclear whether the answers ChatGPT spits out qualify as "imagination," he said.
"There's a teaching that states innovative expression is copyrightable, but truths and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.
"There's a substantial concern in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unguarded facts," he added.
Could OpenAI roll those dice anyway and declare that its outputs are protected?
That's unlikely, the attorneys said.
OpenAI is already on the record in The New York Times' copyright case arguing that training AI is an allowed "fair use" exception to copyright defense.
If they do a 180 and tell DeepSeek that training is not a fair usage, "that might return to kind of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you simply saying that training is fair use?'"
There may be a distinction between the Times and DeepSeek cases, Kortz included.
"Maybe it's more transformative to turn news short articles into a model" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a model 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 regarding fair use," he included.
A breach-of-contract claim is more likely
A breach-of-contract claim is much likelier than an IP-based suit, 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 possibly that's the claim you may possibly 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 design to do something that you were not enabled to do under our agreement."
There might be a hitch, Chander and Kortz said. OpenAI's terms of service require that many claims be fixed through arbitration, not suits. There's an exception for utahsyardsale.com suits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."
There's a larger drawback, however, experts said.
"You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are 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 monetary charges or injunctive relief," the paper says.
"This is likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it includes. That remains in part since model outputs "are mostly not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it says.
"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts generally won't enforce agreements not to compete in the lack of an IP right that would avoid that competitors."
Lawsuits between parties in various countries, each with its own legal and enforcement systems, are constantly challenging, Kortz said.
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, drapia.org OpenAI would be at the mercy of another exceptionally complex location of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that extends back to before the starting of the US.
"So this is, a long, complicated, laden procedure," Kortz added.
Could OpenAI have safeguarded itself much better from a distilling incursion?
"They could have utilized technical steps to obstruct repetitive access to their site," Lemley stated. "But doing so would likewise hinder typical clients."
He included: "I don't believe they could, or should, have a legitimate legal claim against the browsing of uncopyrightable information from a public site."
Representatives for DeepSeek did not right away respond to an ask for remark.
"We understand that groups in the PRC are actively working to utilize methods, including what's known as distillation, to try to reproduce advanced U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.
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OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say
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