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.
Speculations aside, from what I understood, something like this shouldn't hold a drop of water under fair-use doctrine, because there's a disproportional damage, plus a huge monopolistic monetary gain because of what they did and how they did.
On the other hand, I don't believe that Deepseek used OpenAI (in any capacity or way or method) to develop their models, but again, it doesn't matter how they did it in this current conjecture.
What they successfully did was to upset a bunch of high level people, regardless of the technical things they achieved.
IMHO, AI war has similar dynamics to MAD. The best way is not to play, but we are past the Rubicon now. Future looks dirty.
