insidesyv

OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual property and contract law.
- OpenAI's terms of usage may apply but are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

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

The Trump administration's top AI czar said this training procedure, 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 designs."

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

But could it? Could it take legal action against DeepSeek on "you stole our material" grounds, much like the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and timeoftheworld.date other news outlets?

BI postured this question to specialists in innovation law, who stated 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 difficult time proving a copyright or copyright claim, these lawyers stated.

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

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

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

"There's a huge concern in intellectual property law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unprotected truths," he included.

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

That's unlikely, the attorneys said.

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

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

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

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

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

A breach-of-contract suit is more likely

A breach-of-contract lawsuit is much likelier than an IP-based claim, though it comes with its own set of issues, said Anupam Chander, who teaches technology law at Georgetown University.

Related stories

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

"So perhaps that's the claim you might perhaps bring - a contract-based claim, not an IP-based claim," Chander said.

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

There might be a hitch, Chander and menwiki.men Kortz said. OpenAI's regards to service need that many claims be solved through arbitration, not suits. There's an exception for suits "to stop unapproved use or abuse of the Services or intellectual home violation or misappropriation."

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

"You ought to know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of use are 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 actually tried to implement these terms with monetary 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 includes. That's in part since model outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal recourse," it states.

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

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

Even if OpenAI cleared all the above difficulties and won a 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 stated.

Here, OpenAI would be at the mercy of another extremely complicated 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 starting of the US.

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

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

"They might have utilized technical procedures to block repeated access to their website," Lemley said. "But doing so would also interfere with normal consumers."

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

Representatives for DeepSeek did not right away react to a demand for comment.

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