OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little under copyright and contract law.
- OpenAI’s terms of usage may use however are largely unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something comparable to theft.

In a flurry of press declarations, they stated the Chinese upstart had bombarded OpenAI’s chatbots with questions 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 said this training process, called “distilling,” amounted to copyright theft. OpenAI, forum.pinoo.com.tr on the other hand, informed 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 assuring what a representative described “aggressive, proactive countermeasures to secure our technology.”

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

BI positioned this question to specialists in technology law, who said difficult 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 hard time showing an intellectual residential or commercial property or copyright claim, these attorneys stated.

“The question is whether ChatGPT outputs” - indicating the responses it produces in action to questions - “are copyrightable at all,” Mason Kortz of Harvard Law School said.

That’s since it’s uncertain whether the answers ChatGPT spits out certify as “creativity,” he said.

“There’s a doctrine that states innovative expression is copyrightable, however truths and ideas are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, stated.

“There’s a huge question in intellectual home law right now about whether the outputs of a generative AI can ever make up creative expression or if they are always unprotected facts,” he added.

Could OpenAI roll those dice anyhow and declare that its outputs are protected?

That’s not likely, the lawyers said.

OpenAI is already on the record in The New york city Times’ copyright case arguing that training AI is an allowed “reasonable usage” exception to copyright defense.

If they do a 180 and inform DeepSeek that training is not a fair usage, “that may come back to sort of bite them,” Kortz stated. “DeepSeek could say, ‘Hey, weren’t you simply saying that training is fair use?’”

There might be a distinction in between the Times and DeepSeek cases, surgiteams.com Kortz added.

“Maybe it’s more transformative to turn news short articles into a design” - as the Times implicates OpenAI of doing - “than it is to turn outputs of a design into another model,” as DeepSeek is said to have actually done, Kortz said.

“But this still puts OpenAI in a pretty predicament with regard to the line it’s been toeing relating to fair use,” he included.

A breach-of-contract claim is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it features its own set of issues, stated Anupam Chander, who teaches technology 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 material as training fodder for a completing AI design.

“So maybe 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,’ however that you benefited from my model to do something that you were not allowed to do under our agreement.”

There may be a hitch, Chander and Kortz said. OpenAI’s terms of service need that a lot of claims be fixed through arbitration, online-learning-initiative.org not claims. There’s an exception for lawsuits “to stop unapproved usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation.”

There’s a larger drawback, however, experts stated.

“You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable,” Chander said. He was describing a January 10 paper, “The Mirage of Expert System Terms of 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 impose these terms with financial penalties or injunctive relief,” the paper says.

“This is likely for excellent reason: we believe that the legal enforceability of these licenses is questionable,” it adds. That remains in part due to the fact that model outputs “are largely not copyrightable” and [forum.kepri.bawaslu.go.id](https://forum.kepri.bawaslu.go.id/index.php?action=profile