OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual home and contract law.
- OpenAI's regards to use might apply however are largely unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something comparable to theft.
In a flurry of press declarations, they said the Chinese upstart had actually bombarded OpenAI's chatbots with questions and hoovered up the resulting information trove to quickly and inexpensively train a model that's now almost as good.
The Trump administration's top AI czar said this training procedure, called "distilling," amounted to intellectual property 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 business plans to pursue legal action, rather guaranteeing what a spokesperson termed "aggressive, proactive countermeasures to safeguard our technology."
But could it? Could it sue DeepSeek on "you stole our content" premises, much like the grounds OpenAI was itself sued on in an ongoing copyright in 2023 by The New York Times and other news outlets?
BI posed this concern to professionals in innovation law, who said 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 hard time showing a copyright or copyright claim, these lawyers said.
"The question is whether ChatGPT outputs" - suggesting the responses it produces in response to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.
That's since it's uncertain whether the answers ChatGPT spits out certify as "imagination," he stated.
"There's a doctrine that states creative expression is copyrightable, however facts and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, systemcheck-wiki.de stated.
"There's a huge concern in intellectual property law right now about whether the outputs of a generative AI can ever make up creative expression or if they are always unguarded realities," he added.
Could OpenAI roll those dice anyway and claim that its outputs are secured?
That's unlikely, the legal representatives said.
OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is an allowable "fair use" exception to copyright protection.
If they do a 180 and tell DeepSeek that training is not a fair usage, "that might come back to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you just saying that training is reasonable use?'"
There may be a distinction in between the Times and DeepSeek cases, Kortz included.
"Maybe it's more transformative to turn news posts 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 pretty predicament with regard to the line it's been toeing regarding reasonable usage," he added.
A breach-of-contract lawsuit is more most likely
A breach-of-contract suit is much likelier than an IP-based lawsuit, though it includes its own set of problems, stated Anupam Chander, who teaches innovation 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 competing AI design.
"So possibly that's the lawsuit you may potentially 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 enabled to do under our contract."
There might be a drawback, Chander and Kortz said. OpenAI's terms of service require that the majority of claims be fixed through arbitration, not lawsuits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."
There's a larger hitch, however, professionals said.
"You should understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable," Chander stated. 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 really tried to enforce these terms with monetary charges or injunctive relief," the paper says.
"This is most likely for good factor: we think that the legal enforceability of these licenses is doubtful," it adds. That's in part due to the fact that model outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it states.
"I believe 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 agreements not to compete in the absence of an IP right that would prevent that competitors."
Lawsuits between celebrations in different countries, each with its own legal and enforcement systems, are constantly difficult, Kortz stated.
Even if OpenAI cleared all the above hurdles 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 grace of another incredibly complex location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and nationwide sovereignty - that stretches back to before the founding of the US.
"So this is, a long, complicated, fraught process," Kortz added.
Could OpenAI have secured itself better from a distilling attack?
"They might have utilized technical procedures to block repetitive access to their site," Lemley said. "But doing so would likewise disrupt normal clients."
He included: "I do not believe they could, or should, have a legitimate legal claim against the browsing of uncopyrightable info from a public website."
Representatives for DeepSeek did not right away react to a demand for remark.
"We understand that groups in the PRC are actively working to use approaches, including what's known as distillation, to attempt to reproduce sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed declaration.
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OpenAI has Little Legal Recourse Versus DeepSeek, Tech Law Experts Say
elijahbenn1304 edited this page 2025-02-07 20:54:49 +08:00