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

OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to usage might use but are mostly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to rapidly and cheaply train a model that's now practically as great.

The Trump administration's leading AI czar said this training procedure, called "distilling," totaled up to copyright theft. OpenAI, library.kemu.ac.ke meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not saying whether the business plans to pursue legal action, instead promising what a spokesperson described "aggressive, proactive countermeasures to protect our technology."

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

BI presented this concern to professionals in technology law, who stated challenging 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 setiathome.berkeley.edu copyright claim, these lawyers said.

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

That's because it's uncertain whether the answers ChatGPT spits out certify as "imagination," he stated.

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

"There's a big concern in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily unprotected realities," he included.

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

That's unlikely, the lawyers stated.

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

If they do a 180 and tell DeepSeek that training is not a fair use, "that might come back to sort of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you simply saying that training is reasonable usage?'"

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

"Maybe it's more transformative to turn news short 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 said to have actually done, Kortz said.

"But this still puts OpenAI in a pretty difficult situation with regard to the line it's been toeing relating to fair use," he added.

A breach-of-contract claim is most likely

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

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