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1 OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say

OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual property and agreement law.
- OpenAI's regards to usage may apply however are largely unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something comparable to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and inexpensively train a model that's now practically as excellent.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to copyright theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's investigating whether "DeepSeek might have wrongly distilled our designs."

OpenAI is not stating whether the business prepares to pursue legal action, accc.rcec.sinica.edu.tw rather promising what a spokesperson termed "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it take legal action against DeepSeek on "you took our content" grounds, just like the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI positioned this concern to specialists in technology law, who stated difficult 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 an intellectual property or copyright claim, these lawyers stated.

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

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

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

"There's a big question in copyright law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always vulnerable truths," he included.

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

That's not likely, the lawyers stated.

OpenAI is currently on the record in The New york city Times' copyright case arguing that training AI is a permitted "fair usage" exception to copyright protection.

If they do a 180 and inform DeepSeek that training is not a fair usage, "that may return to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you just saying that training is fair use?'"

There may be a difference in 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 stated to have actually 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 claim is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it features 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 contending AI design.

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

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

There might be a drawback, Chander and Kortz said. OpenAI's terms of service need that many claims be dealt with through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

There's a bigger hitch, though, specialists said.

"You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander stated. 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 Information Technology Policy.

To date, "no model developer has actually attempted to implement these terms with financial penalties or injunctive relief," the paper says.

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

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts typically will not impose agreements not to compete in the lack of an IP right that would prevent that competition."

Lawsuits in between celebrations in different countries, each with its own legal and enforcement systems, are always tricky, Kortz stated.

Even if OpenAI cleared all the above hurdles and systemcheck-wiki.de 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 come down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another extremely complex area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that stretches back to before the founding of the US.

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

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

"They might have used technical procedures to obstruct repetitive access to their site," Lemley stated. "But doing so would likewise disrupt normal customers."

He added: "I do not believe they could, or should, have a valid legal claim against the browsing of uncopyrightable information from a public site."

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

"We know that groups in the PRC are actively working to use techniques, including what's called distillation, to try to replicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.