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

Bradley Musgrove edited this page 2025-02-05 04:52:46 +01:00

OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual home and agreement law.
- OpenAI's terms of usage may apply however are mainly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

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

The Trump administration's top AI czar stated this training process, called "distilling," amounted to copyright theft. OpenAI, meanwhile, told 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 spokesperson described "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it take legal action against DeepSeek on "you took our material" premises, much like the grounds OpenAI was itself took legal action against on in a continuous copyright claim filed in 2023 by The New York Times and links.gtanet.com.br other news outlets?

BI posed this concern to experts in technology law, who stated tough DeepSeek in the courts would be an uphill battle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a hard time proving a copyright or copyright claim, drapia.org these legal representatives stated.

"The concern is whether ChatGPT outputs" - meaning the responses it creates in reaction to queries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

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

"There's a big concern in intellectual property law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unprotected realities," he added.

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

That's unlikely, the legal representatives stated.

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

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

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

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

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

A breach-of-contract lawsuit is most likely

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

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The terms of service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid utilizing their content as training fodder for a contending AI model.

"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,' however that you took advantage of my model to do something that you were not enabled to do under our agreement."

There might be a drawback, Chander and Kortz said. OpenAI's regards to service require that the of claims be solved through arbitration, not claims. There's an exception for wiki.vst.hs-furtwangen.de claims "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a larger hitch, however, professionals said.

"You ought to know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Artificial Intelligence Terms of 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 actually tried to enforce these terms with monetary charges or injunctive relief," the paper says.

"This is most likely for excellent factor: we think that the legal enforceability of these licenses is doubtful," it includes. That's in part since model outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited recourse," it says.

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

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, are always challenging, Kortz stated.

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

Here, OpenAI would be at the mercy of another exceptionally complex location of law - the enforcement of foreign judgments and the balancing of private and business rights and nationwide sovereignty - that stretches back to before the founding of the US.

"So this is, a long, complicated, stuffed process," Kortz added.

Could OpenAI have protected itself better from a distilling attack?

"They could have used technical measures to block repeated access to their site," Lemley said. "But doing so would likewise interfere with typical consumers."

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

Representatives for DeepSeek did not right away respond to an ask for remark.

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