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

OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual residential or commercial property and agreement law.
- OpenAI's terms of usage may use but are mostly unenforceable, they say.
This week, lespoetesbizarres.free.fr OpenAI and the White House accused DeepSeek of something comparable 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 information trove to quickly and cheaply train a design that's now nearly as good.

The Trump administration's leading AI czar said this training process, called "distilling," amounted to copyright theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not saying whether the business plans to pursue legal action, instead guaranteeing what a representative called "aggressive, proactive countermeasures to safeguard our innovation."

But could it? Could it sue DeepSeek on "you stole our material" grounds, much like the grounds OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI presented this concern to experts in technology law, who stated difficult 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 copyright claim, these attorneys stated.

"The question is whether ChatGPT outputs" - suggesting the responses it in response 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 "creativity," he said.

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

"There's a substantial question in intellectual property law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are always unguarded facts," he included.

Could OpenAI roll those dice anyhow and declare that its outputs are safeguarded?

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 allowable "reasonable usage" exception to copyright security.

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

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

"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 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 claim is more likely

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

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

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

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

There may be a hitch, Chander and Kortz said. OpenAI's regards to service require that most claims be dealt with through arbitration, not claims. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or copyright violation or misappropriation."

There's a bigger drawback, however, professionals stated.

"You need to understand that the dazzling 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 Regards To 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 creator has in fact attempted to implement these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part since design outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and bytes-the-dust.com Abuse Act "deal limited option," it says.

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

Lawsuits in between parties in various nations, each with its own legal and enforcement systems, are constantly challenging, Kortz stated.

Even if OpenAI cleared all the above hurdles and won a judgment from an US court or arbitrator, "in order to get DeepSeek to turn over money or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another very complicated area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and nationwide sovereignty - that extends back to before the starting of the US.

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

Could OpenAI have secured itself better from a distilling incursion?

"They could have used technical steps to block repeated access to their website," Lemley said. "But doing so would likewise interfere with typical customers."

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

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

"We know that groups in the PRC are actively working to utilize methods, including what's called distillation, to try to duplicate advanced U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.