OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual property and agreement law.
- OpenAI's regards to use may apply however are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and inexpensively train a model that's now almost as great.

The Trump administration's leading AI czar said this training procedure, called "distilling," amounted to intellectual property theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not saying whether the company plans to pursue legal action, instead guaranteeing what a spokesperson termed "aggressive, proactive countermeasures to secure our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our content" grounds, bytes-the-dust.com just like the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI positioned this concern to experts in innovation law, who stated tough 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 tough time showing an intellectual property or copyright claim, these attorneys said.

"The concern is whether ChatGPT outputs" - suggesting the responses it generates in action to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's because it's unclear whether the responses ChatGPT spits out qualify as "imagination," he stated.

"There's a doctrine that says innovative expression is copyrightable, but truths and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a big concern in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are always vulnerable facts," he added.

Could OpenAI roll those dice anyhow and claim that its outputs are safeguarded?

That's unlikely, the lawyers stated.

OpenAI is already on the record in The New Times' copyright case arguing that training AI is a permitted "fair use" exception to copyright security.

If they do a 180 and inform DeepSeek that training is not a reasonable usage, "that may return to kind of bite them," Kortz said. "DeepSeek could state, '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 posts into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a design into another design," as DeepSeek is stated to have actually done, Kortz stated.

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

A breach-of-contract suit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it comes with 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 content as training fodder for [mariskamast.net](http://mariskamast.net:/smf/index.php?action=profile