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 recourse under intellectual residential or commercial property and contract law.
- OpenAI’s terms of use may apply but are mostly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press declarations, they stated the Chinese upstart had bombarded OpenAI’s chatbots with queries and hoovered up the resulting information trove to rapidly and inexpensively train a model that’s now nearly as excellent.

The Trump administration’s top AI czar said this training procedure, called “distilling,” amounted to intellectual home theft. OpenAI, meanwhile, told Business Insider and other outlets that it’s investigating whether “DeepSeek might have inappropriately distilled our designs.”

OpenAI is not stating whether the business prepares to pursue legal action, rather guaranteeing what a representative described “aggressive, proactive countermeasures to secure our technology.”

But could it? Could it sue DeepSeek on “you stole our material” grounds, much like 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 presented this concern to professionals in innovation law, setiathome.berkeley.edu who stated challenging 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 a copyright or asteroidsathome.net copyright claim, these attorneys stated.

“The question is whether ChatGPT outputs” - meaning the answers it produces in response to questions - “are copyrightable at all,” Mason Kortz of Harvard Law School said.

That’s since it’s unclear whether the responses ChatGPT spits out certify as “creativity,” he said.

“There’s a doctrine that states imaginative expression is copyrightable, but truths and ideas are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, said.

“There’s a huge concern in copyright law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily unguarded realities,” he added.

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

That’s unlikely, the attorneys stated.

OpenAI is already on the record in The New york city Times’ copyright case arguing that training AI is a permitted “reasonable use” exception to copyright protection.

If they do a 180 and inform DeepSeek that training is not a reasonable use, “that may come back to sort of bite them,” Kortz stated. “DeepSeek could say, ‘Hey, weren’t you just saying that training is fair usage?’”

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

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

“But this still puts OpenAI in a quite predicament with regard to the line it’s been toeing regarding reasonable use,” he included.

A breach-of-contract suit is most likely

A breach-of-contract suit is much likelier than an IP-based suit, though it comes with 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 using their material as training fodder for a completing AI model.

“So perhaps 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 took advantage of my design to do something that you were not permitted to do under our agreement.”

There might be a drawback, Chander and Kortz said. OpenAI’s regards to service require that many claims be solved through arbitration, [users.atw.hu](http://users.atw.hu/samp-info-forum/index.php?PHPSESSID=716cf8c2158f8ca5d18fb9c30e8016a0&action=profile