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

Analisa Landseer edited this page 2025-02-06 22:00:16 +08:00

OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under intellectual residential or commercial property and contract law.
- OpenAI's regards to use may use however are mostly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to quickly and inexpensively train a design that's now nearly as good.

The Trump administration's leading AI czar stated this training process, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our designs."

OpenAI is not stating whether the company plans to pursue legal action, rather promising what a representative termed "aggressive, proactive countermeasures to secure our technology."

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

BI presented this concern to experts in technology law, who said difficult 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 proving a copyright or copyright claim, these legal representatives stated.

"The question is whether ChatGPT outputs" - indicating the responses it generates in action to queries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's due to the fact that it's unclear whether the responses ChatGPT spits out qualify as "creativity," he stated.

"There's a teaching that says imaginative expression is copyrightable, however facts and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, systemcheck-wiki.de said.

"There's a substantial question in copyright law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unguarded realities," he added.

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

That's not likely, the legal representatives said.

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

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

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

"Maybe it's more transformative to turn news articles into a model" - as the Times implicates 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 quite predicament with regard to the line it's been toeing concerning reasonable usage," he included.

A breach-of-contract lawsuit is more likely

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

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The regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid using their content as training fodder for a completing AI model.

"So perhaps that's the lawsuit you might perhaps 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 might be a drawback, Chander and Kortz stated. OpenAI's regards to service require that many claims be dealt with through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual property infringement or misappropriation."

There's a larger hitch, though, experts said.

"You ought 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 referring to 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 Information Technology Policy.

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

"This is most likely for good reason: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part due to the fact that design outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal option," it says.

"I think they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and since courts typically will not enforce agreements not to contend in the lack of an IP right that would avoid that competitors."

Lawsuits in between parties in different countries, 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 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 come down to the Chinese legal system," he said.

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 nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, complicated, fraught process," Kortz included.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have utilized technical procedures to obstruct repetitive access to their website," Lemley said. "But doing so would likewise interfere with normal consumers."

He added: "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 did not right away react to a demand for comment.

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