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

Adrienne Huff edited this page 2025-02-13 23:44:39 +00:00

OpenAI and wiki.eqoarevival.com the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI's terms of usage might apply but are mainly unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press declarations, they said the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and cheaply train a model that's now practically as good.

The Trump administration's top AI czar stated this training process, called "distilling," amounted to intellectual property theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek might have wrongly distilled our models."

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

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

BI positioned this question to specialists in innovation law, who said tough 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 a copyright or copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - suggesting the answers it creates in action to queries - "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 says innovative expression is copyrightable, however realities and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a big question in intellectual property law right now about whether the outputs of a generative AI can ever make up creative expression or if they are always unguarded facts," he added.

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

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 "reasonable usage" exception to copyright defense.

If they do a 180 and inform DeepSeek that training is not a fair use, "that may return to type of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you just 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 articles into a model" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is stated 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 usage," he included.

A breach-of-contract suit is most likely

A breach-of-contract lawsuit is much likelier than an IP-based lawsuit, though it features its own set of problems, stated Anupam Chander, who 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 content as training fodder for a completing AI model.

"So maybe that's the lawsuit you might 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 allowed to do under our agreement."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service require that a lot of claims be dealt with through arbitration, not suits. There's an exception for claims "to stop unapproved use or abuse of the Services or copyright violation or misappropriation."

There's a larger drawback, however, professionals said.

"You need to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable," Chander said. 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 Infotech Policy.

To date, "no model creator has really tried to impose these terms with financial charges or injunctive relief," the paper states.

"This is likely for great reason: we believe that the legal enforceability of these licenses is doubtful," it includes. That's in part because design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," it states.

"I believe they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts generally won't enforce agreements not to compete in the lack of an IP right that would prevent that competition."

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

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

Here, OpenAI would be at the grace of another exceptionally complicated location of law - the enforcement of foreign judgments and the balancing of specific and business rights and national sovereignty - that extends back to before the founding of the US.

"So this is, a long, complicated, laden process," Kortz included.

Could OpenAI have secured itself better from a distilling incursion?

"They might have used technical procedures to block repeated access to their site," Lemley stated. "But doing so would also hinder regular consumers."

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

Representatives for DeepSeek did not immediately react to a request for remark.

"We understand that groups in the PRC are actively working to utilize methods, including what's called distillation, to attempt to reproduce sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.