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

Bradley De Boos edited this page 2025-02-07 07:03:24 +08:00

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 residential or commercial property and contract law.
- OpenAI's terms of use may use but are mainly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press declarations, they stated the Chinese upstart had actually 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 excellent.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek might have wrongly distilled our models."

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

BI positioned this question to professionals in technology law, who stated challenging 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 copyright claim, these legal representatives said.

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

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

"There's a doctrine that states creative expression is copyrightable, however facts and concepts are not," Kortz, who teaches at Clinic, stated.

"There's a substantial question in intellectual home law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are always vulnerable realities," he included.

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

That's not likely, the attorneys said.

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

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

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

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

"But this still puts OpenAI in a quite challenging circumstance with regard to the line it's been toeing concerning reasonable usage," he included.

A breach-of-contract claim is most likely

A breach-of-contract claim is much likelier than an IP-based claim, though it includes 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 established by OpenAI and Anthropic forbid using their material as training fodder for a contending AI design.

"So perhaps 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 permitted to do under our contract."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service require that a lot of claims be solved through arbitration, not suits. There's an exception for suits "to stop unapproved usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a larger drawback, though, specialists stated.

"You must understand that the dazzling 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 Artificial Intelligence Terms of Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for oke.zone Infotech Policy.

To date, "no model creator has really tried to enforce these terms with monetary charges or injunctive relief," the paper states.

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

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not impose contracts not to contend in the absence of an IP right that would prevent that competition."

Lawsuits between parties in various nations, passfun.awardspace.us each with its own legal and enforcement systems, are always challenging, Kortz stated.

Even if OpenAI cleared all the above obstacles and won a judgment from an US 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, systemcheck-wiki.de OpenAI would be at the grace of another incredibly 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 founding of the US.

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

Could OpenAI have protected itself better from a distilling attack?

"They could have used technical steps to block repeated access to their website," Lemley said. "But doing so would also interfere with typical customers."

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

Representatives for DeepSeek did not instantly react to an ask for macphersonwiki.mywikis.wiki comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's understood as distillation, to try to replicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.