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

Perry Hanes edited this page 2025-02-05 14:32:49 +08:00

OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual home and agreement law.
- OpenAI's regards to usage might apply however are mainly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to rapidly and inexpensively train a design that's now almost as great.

The Trump administration's leading AI czar said this training process, forum.pinoo.com.tr 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 stating whether the business prepares to pursue legal action, instead guaranteeing what a representative called "aggressive, proactive countermeasures to secure our technology."

But could it? Could it sue DeepSeek on "you took our material" premises, just like the grounds OpenAI was itself sued on in a continuous copyright claim submitted in 2023 by The New York 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 tough time proving an intellectual home or copyright claim, these legal representatives stated.

"The concern is whether ChatGPT outputs" - implying the responses it creates in reaction to queries - "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 qualify as "creativity," he stated.

"There's a doctrine that states creative 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 residential or commercial property law right now about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily unguarded realities," he included.

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

That's unlikely, the legal representatives said.

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

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

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

"Maybe it's more transformative to turn news posts into a model" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a design into another design," as DeepSeek is said to have done, Kortz said.

"But this still puts OpenAI in a pretty predicament with regard to the line it's been toeing regarding fair use," he included.

A breach-of-contract suit is more likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with 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 established by OpenAI and Anthropic forbid using their content as training fodder for a competing AI model.

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

"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 contract."

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

There's a larger hitch, though, experts said.

"You must understand that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. He was describing 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 Information Technology Policy.

To date, "no design developer has in fact tried to enforce these terms with financial charges or injunctive relief," the paper states.

"This is most likely for good factor: we think that the legal enforceability of these licenses is doubtful," it adds. That's in part because model outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it says.

"I think they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts typically won't implement arrangements not to compete in the lack of an IP right that would prevent that competitors."

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

Even if OpenAI cleared all the above difficulties 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 come down to the Chinese legal system," he stated.

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

"So this is, a long, made complex, filled process," Kortz included.

Could OpenAI have itself better from a distilling incursion?

"They might have utilized technical procedures to block repeated access to their site," Lemley stated. "But doing so would likewise hinder normal consumers."

He included: "I don't believe they could, or should, have a legitimate legal claim against the searching of uncopyrightable information from a public website."

Representatives for DeepSeek did not immediately react to a demand for comment.

"We understand that groups in the PRC are actively working to utilize methods, including what's known as distillation, to attempt to duplicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.