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

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 option under intellectual home and agreement law.
- OpenAI's terms of use might use but are mostly unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to rapidly and inexpensively 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, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our designs."

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

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

BI postured this concern to experts in technology law, who said tough DeepSeek in the courts would be an uphill struggle for OpenAI now that the is on the other foot.

OpenAI would have a tough time proving an intellectual home or copyright claim, these attorneys stated.

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

That's because it's uncertain whether the answers ChatGPT spits out certify as "creativity," he said.

"There's a teaching that says innovative expression is copyrightable, however truths and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a huge question in copyright law today about whether the outputs of a generative AI can ever constitute creative expression or if they are always vulnerable facts," he included.

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

That's not likely, qoocle.com the attorneys said.

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

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

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

"Maybe it's more transformative to turn news posts into a model" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a model into another model," 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 concerning reasonable usage," he included.

A breach-of-contract suit is most likely

A breach-of-contract lawsuit is much likelier than an IP-based lawsuit, though it includes 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 developed by OpenAI and Anthropic forbid using their material as training fodder for a competing AI model.

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

"Not, 'You copied something from me,' however that you benefited from my design to do something that you were not enabled to do under our contract."

There may be a hitch, Chander and Kortz stated. OpenAI's terms of service need that most claims be dealt with through arbitration, not suits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a bigger hitch, however, specialists said.

"You ought to know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander said. He was describing 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 engel-und-waisen.de Information Technology Policy.

To date, "no design creator has actually tried to enforce these terms with monetary penalties or injunctive relief," the paper says.

"This is likely for excellent reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains 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 states.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not enforce agreements not to complete in the lack of an IP right that would prevent that competition."

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

Even if OpenAI cleared all the above hurdles and won a judgment from a United States 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 area 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, made complex, filled process," Kortz included.

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

"They could have used technical procedures to obstruct repetitive access to their website," Lemley said. "But doing so would also interfere with regular consumers."

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

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

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