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

Abe Spangler edited this page 2025-02-06 22:11:54 +08:00

OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual residential or commercial property and agreement law.
- OpenAI's terms of usage might use but are mostly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something similar 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 design that's now nearly as good.

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

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

But could it? Could it take legal action against DeepSeek on "you took our content" premises, similar to the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI posed this question to specialists in innovation law, who said 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 tough time proving an intellectual home or copyright claim, these legal representatives said.

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

That's since it's unclear whether the responses ChatGPT spits out qualify as "creativity," he said.

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

"There's a substantial concern in copyright law today about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily unprotected realities," he included.

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

That's not likely, the legal representatives stated.

OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is a permitted "fair use" exception to copyright protection.

If they do a 180 and inform DeepSeek that training is not a reasonable usage, "that may come back to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is fair usage?'"

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

"Maybe it's more transformative to turn news articles into a design" - 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 quite predicament with regard to the line it's been toeing relating to fair usage," he added.

A breach-of-contract suit is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with its own set of issues, 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 completing AI model.

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

"Not, 'You copied something from me,' but that you benefited from my design to do something that you were not permitted to do under our agreement."

There may be a hitch, Chander and Kortz stated. OpenAI's regards to service need that the majority of claims be resolved through arbitration, not suits. There's an exception for suits "to stop unauthorized usage or abuse of the Services or intellectual home violation or misappropriation."

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

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander stated. 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 Infotech Policy.

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

"This is likely for good factor: we believe that the legal enforceability of these licenses is questionable," it adds. That remains in part due to the fact that design outputs "are mainly not copyrightable" and online-learning-initiative.org because laws like the Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," 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 usually won't enforce contracts not to complete in the absence of an IP right that would prevent that competitors."

Lawsuits between parties in different nations, each with its own legal and enforcement systems, are always tricky, Kortz said.

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 boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another exceptionally complicated location of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that stretches back to before the starting of the US.

"So this is, a long, made complex, laden procedure," Kortz added.

Could OpenAI have protected itself much better from a distilling incursion?

"They could have utilized technical procedures to obstruct repeated access to their website," Lemley said. "But doing so would also hinder typical consumers."

He included: "I don't think they could, or should, have a valid legal claim versus the searching of uncopyrightable information from a public site."

Representatives for DeepSeek did not instantly react to an ask for remark.

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