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

Flor Govett edited this page 2025-02-09 20:56:38 +08:00

OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and contract law.
- OpenAI's regards to use may use but are mostly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something comparable to theft.

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

The Trump administration's top AI czar stated this training procedure, oke.zone called "distilling," amounted to copyright theft. OpenAI, on the other hand, 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, instead promising what a representative described "aggressive, proactive countermeasures to secure our innovation."

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

BI posed this concern to professionals in innovation 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 difficult time showing an intellectual home or copyright claim, drapia.org these attorneys stated.

"The concern is whether ChatGPT outputs" - indicating the responses it creates in response to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

"There's a teaching that states creative expression is copyrightable, however realities and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

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

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

That's unlikely, the legal representatives stated.

OpenAI is currently 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 inform DeepSeek that training is not a reasonable use, "that might return to sort of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you just saying that training is reasonable usage?'"

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

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

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

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based claim, though it includes 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 design.

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

"Not, 'You copied something from me,' but that you gained from my design to do something that you were not allowed to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service need that many claims be fixed through arbitration, not lawsuits. There's an exception for suits "to stop unapproved usage or abuse of the Services or intellectual property violation or misappropriation."

There's a bigger drawback, however, professionals said.

"You must understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander stated. 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 creator has really attempted to implement these terms with financial penalties or injunctive relief," the paper says.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part because model outputs "are mostly not copyrightable" and because 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, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts usually won't implement arrangements not to compete in the absence 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 constantly tricky, Kortz said.

Even if OpenAI cleared all the above obstacles and won a judgment from a United States court or dokuwiki.stream 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 area of law - the enforcement of foreign judgments and the balancing of specific and business rights and nationwide sovereignty - that stretches back to before the founding of the US.

"So this is, a long, complicated, filled procedure," Kortz included.

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

"They might have used technical steps to obstruct repetitive access to their site," Lemley said. "But doing so would also hinder typical consumers."

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

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

"We understand that groups in the PRC are actively working to use methods, including what's referred to as distillation, to attempt to replicate innovative U.S. AI designs," Rhianna Donaldson, gantnews.com an OpenAI representative, informed BI in an emailed declaration.