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Comment by miki123211 | Hacker News Reader

> This is obviously extremely silly, because that's exactly how OpenAI got all of its training data

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.

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> DeepSeek has explicitly consented to a license that doesn't allow them to do this.

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 figured those contracts with an intermediary would extend to anyone they re-sell to, or prohibit them from re-selling...

You are free to publish your conversations with ChatGPT on the Internet, where they can be picked up by scrapers. US ruled that they are not covered by copyright...

>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.

I have some news for you

> DeepSeek has explicitly consented to a license that doesn't allow them to do this.

By existing in USA, OpenAI consented to comply with copyright law, and how did that go?

training is either fair use, or it isn't

OpenAI can't have it both ways

Right, but it was never about doing the right thing for humanity, it was about doing the right thing for their profits.

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.

The issue here is breach of contract, not copyright.

It's quite unlikely that OpenAI didn't break any TOS with all the data they used for training their models. Not just OpenAI but all companies that are developing LLMs.

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.

Interesting that Trump signalled positively for deepseek. Said something like 'american companies need to wake up'. Has Sam not paid the piper yet?

Similar to how a patent contract becomes void when a patent expires regardless of what the terms of the contract says, it's not clear to me OpenAI can enforce a contract provision for an API output they own no copyright in.

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.

What makes you think they had a contract with them in the first place? You can use openAI through intermediaries/proxies.

I assume all those intermediaries have to pass on the same ToS to their customers otherwise that seems like a very unusual move.

How many thousands or millions of contracts has OpenAI breached by scraping data off of websites that have terms of service explicitly saying not to scrape data off their websites?

They can sure try though, and I would be damned surprise if this wasn’t related to Sam’s event with trump last week.

"Free for me, not for thee!" - Sam Altman /s

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.

Did OpenAI abide by my service’s terms of service when it ingested my data?

Did OpenAI have to sign up for your service to gain access?

It probably ignored hundreds of thousands of "by using this site you consent to our Terms and Conditions" notices, many of which probably would be read as prohibiting training. But that's also a great example of why these implicit contracts don't really work as contracts.

OpenAI scrapped my blog so aggressively that I had to ban their IPs. They ignored the robots.txt (which is kind of ToS) by 2 orders of magnitude, they ignored the explicit ToS that I copypasted blindly from somewhere but turns out it forbids what they did (something like you can't make money with the content). Not that I'm going to enforce it, but they should at least shut up.

Civil law is only available to deep pockets.

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?

solution: live in a country OpenAI can't get to you

e.g China

Are you suggesting it's easier to successfully sue OpenAI for copyright infringement if you live in China?

No, they're suggesting that deepseek avoids getting sued by openAI

No, but some of the data is licensed.

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.

> So, by scraping my webpages, they agree to my licensing of my data.

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.

At this point, what I'm afraid is the justice system will be just an instrument in this all Us vs. Them debate, so their decisions will not be bound by law or legality.

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.

> 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

"Something like this" as in what DeepSeek allegedly did, or the web-scraping done by both of them?

For what DeepSeek allegedly did, OpenAI wouldn't have a copyright infringement case against them because the US copyright office determined that AI-generated content is not protected by copyright - and so there's no need here for DeepSeek to invoke fair use. It'll instead be down to whether they agreed to and breached OpenAI's contract.

For the web-scraping it's more complicated. Fair use is determined by the weighing of multiple factors - commercial use and market impact are considered, but do not alone preclude a fair use defense. Machine learning models do seem, at least to me, highly transformative - and "the more transformative the new work, the less will be the significance of other factors".

Additionally, since the market impact factor is the effect of the use of the copyrighted work on the market for that work, I'd say there's a reasonable chance it does not actually include what you may expect it to. For instance if you're a translator suing Google Translate for being trained on your translated book, the impact may not be "how much the existence of Google Translate reduced my future job prospects" nor even "how many fewer people paid for my translated book because of the existence of Google Translate" but rather "how many fewer people paid for my translated book than would have had that book been included in the training data" - which is likely very minor.

They probably did to access the NYTimes articles.

That isn't required to be in violation of copyright

Actually, yes, they actively agreed to them. Clicked the button and everything.

Have their scraping bots consented to cookies?

Can you steal someone else’s laptop if they stood up to get a drink?

OpenAI itself has argued, to the degree that your analogy applies, that if the goal of stealing the laptop is to train AI then the answer is Yes.

Wouldn't this analogy be more like, "can you read my laptop screen if I stood up to get a drink?"

And steal the ip from your startup and then go public.

If their OS is open to the internet and you can scrape it and copy it off while they’re gone, then that would be about the right analogy. And OpenAi and DeepSeek have done the same thing in that case.

Yes, if you can pay off any witnesses.

What?

TOS are not contracts.

Citation? My understanding was that they are provided that someone has to affirmatively accept them in order to use your site. So Terms of Service stuck at the bottom in the footer likely would not count as a contract because there's no consent, but Terms of Service included in a check box on a login form likely would count.

But IANAL, so if you have a citation that says otherwise I'd be happy to see it!

You don’t need a citation.

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.

IANAGL, but in Germany a ToS is not a contract and can be declared void if it's deemed by courts to be unfair.

Yes, though this is especially true when it's consumers 'agreeing' to the TOS. Anything even somewhat surprising within such a TOS is basically thrown out the window in European courtrooms without a second look.

For actual, legally binding consent, you'll need to make some real effort to make sure the consumer understands what they are agreeing to.

People here will argue that. But the Chinese DNGAF.

Legally, I understand your point, but morally, I find it repellent that a breach of contract (especially terms-of-service) could be considered more important than a breach of law. Especially since simply existing in modern society requires us to "agree" to dozens of such "contracts" daily.

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.

It's not hard to get someone else to submit queries and post the results, without agreeing to the license.

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