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Opened Feb 04, 2025 by Elmo Craig@elmocraig6877
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OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say


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 option under intellectual home and contract law.
- OpenAI's regards to usage may apply but are mostly unenforceable, they say.
Today, OpenAI and the White House implicated of something similar to theft.

In a flurry of press statements, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to rapidly and cheaply train a design that's now almost as excellent.

The Trump administration's leading AI czar stated this training procedure, called "distilling," amounted to copyright theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not saying whether the company plans to pursue legal action, rather promising 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 material" grounds, similar to the premises OpenAI was itself took legal action against on in an ongoing copyright claim filed in 2023 by The New York Times and users.atw.hu other news outlets?

BI presented this concern to experts in technology law, who said difficult 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 tough time proving a copyright or copyright claim, these legal representatives said.

"The question is whether ChatGPT outputs" - meaning the answers it creates in action to queries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's due to the fact that it's unclear whether the answers ChatGPT spits out certify as "imagination," he said.

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

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

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

That's unlikely, the lawyers stated.

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

If they do a 180 and tell DeepSeek that training is not a fair use, "that might come back to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is fair use?'"

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

"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 model into another model," as DeepSeek is said to have actually done, Kortz stated.

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

A breach-of-contract claim is more most likely

A breach-of-contract lawsuit is much likelier than an IP-based lawsuit, though it features its own set of issues, said Anupam Chander, who teaches innovation 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 material as training fodder for a completing AI design.

"So perhaps that's the suit you might possibly bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' but that you took advantage of my design to do something that you were not enabled to do under our contract."

There might be a hitch, Chander and ratemywifey.com Kortz said. OpenAI's regards to service need that a lot of claims be dealt with through arbitration, not claims. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or copyright violation or misappropriation."

There's a larger hitch, however, professionals said.

"You ought to understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of use are 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 demo.qkseo.in Information Technology Policy.

To date, "no model creator has really attempted to implement these terms with financial charges or injunctive relief," the paper says.

"This is likely for excellent reason: we think that the legal enforceability of these licenses is doubtful," it adds. That's in part since model outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal option," it states.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically will not enforce contracts not to compete in the absence of an IP right that would prevent that competitors."

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, are always challenging, Kortz said.

Even if OpenAI cleared all the above hurdles 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 boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the grace of another incredibly complex area of law - the enforcement of foreign judgments and the balancing of specific and business rights and national sovereignty - that extends back to before the starting of the US.

"So this is, a long, complicated, stuffed process," Kortz included.

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

"They might have utilized technical steps to block repetitive access to their website," Lemley said. "But doing so would likewise disrupt normal clients."

He added: "I do not believe they could, or should, have a valid legal claim against the browsing of uncopyrightable details from a public site."

Representatives for DeepSeek did not immediately react to an ask for remark.

"We understand that groups in the PRC are actively working to utilize techniques, including what's called distillation, to attempt to duplicate innovative U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.

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Reference: elmocraig6877/psicologoelsopini#7