story
IANAL, but It is worth noting here that DeepSeek has explicitly consented to a license that doesn't allow them to do this. That is a condition of using the Chat GPT and the OpenAI API.
Even if the courts affirm that there's a fair use defence for AI training, DeepSeek may still be in the wrong here, not because of copyright infringement, but because of a breach of contract.
I don't think OpenAI would have much of a problem if you train your model on data scraped from the internet, some of which incidentally ends up being generated by Chat GPT.
Compare this to training AI models on Kindle Books randomly scraped off the internet, versus making a Kindle account, agreeing to the Kindle ToS, buying some books, breaking Amazon's DRM and then training your AI on that. What DeepSeek did is more analogous to the latter than the former.
You actually don’t know this. Even if it were true that they used OpenAI outputs (and I’m very doubtful) it’s not necessary to sign an agreement with OpenAI to get API outputs. You simply acquire them from an intermediary, so that you have no contractual relationship with OpenAI to begin with.
I have some news for you
By existing in USA, OpenAI consented to comply with copyright law, and how did that go?
OpenAI can't have it both ways
Like I’ve said time and time again, nobody in this space gives a fuck about anyone that isn’t directly contributing money to their bottom line at that particular instant. The fundamental idea is selfish, damages the fundamental machinery that makes the internet useful by penalizing people that actually make things, and will never, ever do anything for the greater good if it even stands a chance of reducing their standing in this ridiculously overhyped market. Giving people free access to what is for all intents and purposes a black box is not “open” anything, is no more free (as in speech) than Slack is, and all of this is obviously them selling a product at a huge loss to put competing media out of business and grab market share.
IMO, it would look bad for OpenAI to push strongly with this story, it would look like they're losing the technological edge and are now looking for other ways to make sure they remain on top.
Since they have no intellectual property rights in the output, it's not clear to me they have a cause of action to sue over how the output is used.
I wonder if any lawyers have written about this topic.
But in all reality I'm happy to see this day. The fact that OpenAI ripped off everyone and everything they could and, to this day pretend like they didn't, is fantastic.
Sam Altman is a con and it's not surprising that given all the positive press DeepSeek got that it was a full court assault on them within 48 hours.
Contracts are enforceable to the degree to which you can pay lawyers to enforce them.
I will run out of money trying to enforce my terms of service against openAI, while they have a massive war chest to enforce theirs.
Ain’t libertarianism great?
For example, my digital garden is under GFDL, and my blog is CC BY-NC-SA. IOW, They can't remix my digital garden with any other license than GFDL, and they have to credit me if they remix my blog, and can't use it for any commercial endeavor, which OpenAI certainly does now.
So, by scraping my webpages, they agree to my licensing of my data. So they're de-facto breaching my licenses, but they cry "fair-use".
If I tell that they're breaching the license terms, they'd laugh at me, and maybe give me 2 cents of API access to mock me further. When somebody allegedly uses their API with their unenforcable ToS, they scream like an agitated cuckatoo (which is an insult to the cuckatoo, BTW. They're devilishly intelligent birds).
Drinking their own poison was mildly painful, I guess...
BTW, I don't believe that Deepseek has copied/used OpenAI models' outputs or training data to train theirs, even if they did, "the cat is out of the bag", "they did something amazing so they needed no permissions", "they moved fast and broke things", and "all is fair-use because it's just research" regardless of how they did it.
Heh.
If the fair use defense holds up, they didn't need a license to scrape your webpage. A contract should still apply if you only showed your content to people who've agreed to it.
> and "all is fair-use because it's just research"
Fair use is a defense to copyright infringement, not breach of contract. You can use contracts, like NDAs, to protect even non-copyright-eligible information.
Morally I'd prefer what DeepSeek allegedly did to be legal, but to my understanding there is a good chance that OpenAI is found legally in the right on both sides.
But IANAL, so if you have a citation that says otherwise I'd be happy to see it!
You just need to read OpenAI’s arguments about why TOS and copyright laws don’t apply to them when they’re training on other people’s copyrighted and TOS protected data and running roughshod over every legal protection.
For actual, legally binding consent, you'll need to make some real effort to make sure the consumer understands what they are agreeing to.
I hope voters and governments put a long-overdue stop to this cancer of contract-maximalism that has given us such benefits as mandatory arbitration, anti-benchmarking, general circumvention of consumer rights, or, in this case, blatantly anti-competitive terms, by effectively banning reverse-engineering (i.e. examining how something works, i.e. mandating that we live in ignorance).
Because if they don't, laws will slowly become irrelevant, and our lives governed by one-sided contracts.
