OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's terms of use may apply however are mostly unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something comparable to theft.

In a flurry of press statements, they said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting information trove to rapidly and cheaply train a design that's now almost as excellent.

The Trump administration's leading AI czar said this training procedure, called "distilling," totaled up to intellectual residential or commercial property theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our designs."

OpenAI is not stating whether the business plans to pursue legal action, rather promising what a spokesperson called "aggressive, proactive countermeasures to protect our innovation."

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

BI presented this concern to professionals in innovation law, who stated difficult DeepSeek 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 tough time showing a copyright or copyright claim, these attorneys stated.

"The question is whether ChatGPT outputs" - implying the answers it creates in action to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

"There's a doctrine that says creative expression is copyrightable, but 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 constitute innovative expression or if they are always unguarded realities," he included.

Could OpenAI roll those dice anyhow and bryggeriklubben.se claim that its outputs are safeguarded?

That's unlikely, the legal representatives stated.

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

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 state, 'Hey, weren't you simply saying that training is reasonable usage?'"

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

"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 stated to have actually done, Kortz stated.

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

A breach-of-contract lawsuit is most likely

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

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

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

"Not, 'You copied something from me,' but that you benefited from my design to do something that you were not allowed to do under our contract."

There may be a hitch, Chander and Kortz stated. OpenAI's terms of service require that the majority of claims be resolved through arbitration, not claims. There's an exception for claims "to stop unauthorized usage or abuse of the Services or copyright infringement or misappropriation."

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