OpenAI and the White House have actually accused DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's terms of usage might apply however are largely unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.
In a flurry of press declarations, they said the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to rapidly and cheaply train a design that's now nearly as excellent.
The Trump administration's top AI czar stated this training process, called "distilling," amounted to intellectual home theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our designs."
OpenAI is not stating whether the business plans to pursue legal action, rather promising what a spokesperson termed "aggressive, proactive countermeasures to protect our technology."
But could it? Could it take legal action against DeepSeek on "you stole our material" grounds, similar to the grounds OpenAI was itself took legal action against on in an ongoing copyright claim filed in 2023 by The New York Times and other news outlets?
BI presented this concern to specialists in innovation law, who stated tough 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 showing a copyright or fraternityofshadows.com copyright claim, these attorneys said.
"The question is whether ChatGPT outputs" - indicating the answers it produces in response to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.
That's due to the fact that it's unclear whether the answers ChatGPT spits out certify as "imagination," he said.
"There's a doctrine that states imaginative expression is copyrightable, but realities and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.
"There's a big question in intellectual property law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always vulnerable realities," he included.
Could OpenAI roll those dice anyway and claim that its outputs are protected?
That's not likely, the attorneys 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 protection.
If they do a 180 and inform DeepSeek that training is not a fair usage, "that may return to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply stating that training is fair use?'"
There may be a distinction in between the Times and DeepSeek cases, Kortz added.
"Maybe it's more transformative to turn news short articles into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a model into another model," as DeepSeek is stated to have done, Kortz said.
"But this still puts OpenAI in a quite difficult circumstance with regard to the line it's been toeing relating to reasonable use," he added.
A breach-of-contract suit is more likely
A breach-of-contract lawsuit is much likelier than an IP-based suit, though it features its own set of problems, stated Anupam Chander, who teaches innovation law at Georgetown University.
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The regards to service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid using their content as training fodder for a competing AI design.
"So perhaps that's the lawsuit you might potentially bring - a contract-based claim, not an IP-based claim," Chander stated.
"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 contract."
There might be a hitch, Chander and links.gtanet.com.br Kortz said. OpenAI's regards to service require that many claims be fixed through arbitration, not claims. There's an exception for suits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."
There's a larger hitch, though, experts stated.
"You should understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are most 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 creator has in fact attempted to enforce these terms with financial penalties or injunctive relief," the paper states.
"This is likely for good reason: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part because design outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it states.
"I believe they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts usually will not enforce contracts not to compete in the lack of an IP right that would avoid that competition."
Lawsuits in between celebrations in various countries, 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 stated.
Here, OpenAI would be at the mercy of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that stretches back to before the founding of the US.
"So this is, a long, complicated, stuffed procedure," Kortz added.
Could OpenAI have secured itself much better from a distilling incursion?
"They could have used technical steps to obstruct repetitive access to their site," Lemley stated. "But doing so would likewise hinder normal customers."
He added: "I do not think they could, or should, have a valid legal claim against the browsing of uncopyrightable information from a public site."
Representatives for DeepSeek did not right away react to an ask for remark.
"We understand that groups in the PRC are actively working to use techniques, including what's known as distillation, to try to reproduce sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.
