OpenAI and classifieds.ocala-news.com the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.

- Experts in tech law state OpenAI has little option under copyright and agreement law.

- OpenAI's terms of usage may use but are mainly unenforceable, kenpoguy.com they say.


This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press declarations, akropolistravel.com they said the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to quickly and cheaply train a model that's now nearly as good.

The Trump administration's leading AI czar stated this training process, called "distilling," amounted to intellectual property theft. OpenAI, on the other hand, told Business Insider and akropolistravel.com other outlets that it's investigating whether "DeepSeek might have wrongly distilled our models."

OpenAI is not saying whether the company prepares to pursue legal action, instead promising what a spokesperson called "aggressive, proactive countermeasures to secure our technology."

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

BI posed this question to professionals in technology 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 tough time proving a copyright or copyright claim, these lawyers stated.

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

That's due to the fact that it's unclear whether the responses ChatGPT spits out certify as "creativity," he stated.

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

"There's a substantial concern in copyright law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always unprotected facts," he added.

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

That's not likely, the legal representatives stated.

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

If they do a 180 and inform DeepSeek that training is not a fair use, "that may come back to type of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you just saying that training is fair usage?'"

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

"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 model into another model," as DeepSeek is said to have actually done, Kortz stated.

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

A breach-of-contract suit is more most likely

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

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

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

"Not, 'You copied something from me,' but that you took advantage of my model to do something that you were not enabled to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service require that a lot of claims be fixed through arbitration, not lawsuits. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or intellectual home infringement or misappropriation."

There's a larger drawback, though, specialists stated.

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. He was referring to a January 10 paper, "The Mirage of Expert System Regards To Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no model developer has in fact attempted to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is likely for good reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part since design outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted option," it says.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts normally won't implement contracts not to complete in the absence of an IP right that would avoid that competition."

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

Even if OpenAI cleared all the above obstacles and won a judgment from a United States court or arbitrator, "in order to get DeepSeek to turn over cash 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 mercy of another very complex 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, complicated, stuffed procedure," Kortz included.

Could OpenAI have protected itself better from a distilling attack?

"They could have used technical procedures to obstruct repetitive access to their website," Lemley stated. "But doing so would also hinder normal clients."

He included: "I do not believe they could, or should, have a valid legal claim against the searching of uncopyrightable info from a public website."

Representatives for DeepSeek did not immediately respond to a demand for remark.

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