The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Battle of the Tech Titans, Musk v. Altman
Musk is also represented by I/P litigation titan Morgan Chu of Irell & Manella. You can read the Complaint; an excerpt:
Together with [Gregory] Brockman, [Musk and Altman] agreed that this new lab: (a) would be a nonprofit developing AGI for the benefit of humanity, not for a for-profit company seeking to maximize shareholder profits; and (b) would be open-source, balancing only countervailing safety considerations, and would not keep its technology closed and secret for proprietary commercial reasons (The "Founding Agreement"). Reflecting the Founding Agreement, Mr. Musk named this new AI lab "OpenAI," which would compete with, and serve as a vital counterbalance to, Google/DeepMind in the race for AGI, but would do so to benefit humanity, not the shareholders of a private, for-profit company (much less one of the largest technology companies in the world)….
OpenAI's initial research was performed in the open, providing free and public access to designs, models, and code. When OpenAI, Inc. researchers discovered that an algorithm called "Transformers," initially invented by Google, could perform many natural language tasks without any explicit training, entire communities sprung up to enhance and extend the models released by OpenAI, Inc. These communities spread to open-source, grass-roots efforts and commercial entities alike….
In 2023, Defendants Mr. Altman, Mr. Brockman, and OpenAI set the Founding Agreement aflame. In March 2023, OpenAI released its most powerful language model yet, GPT-4…. At this time, Mr. Altman caused OpenAI to radically depart from its original mission and historical practice of making its technology and knowledge available to the public. GPT-4's internal design was kept and remains a complete secret except to OpenAI—and, on information and belief, Microsoft. There are no scientific publications describing the design of GPT-4. Instead, there are just press releases bragging about performance. On information and belief, this secrecy is primarily driven by commercial considerations, not safety. Although developed by OpenAI using contributions from Plaintiff and others that were intended to benefit the public, GPT-4 is now a de facto Microsoft proprietary algorithm, which it has integrated into its Office software suite.
Furthermore, on information and belief, GPT-4 is an AGI algorithm, and hence expressly outside the scope of Microsoft's September 2020 exclusive license with OpenAI. In this regard, Microsoft's own researchers have publicly stated that, "[g]iven the breadth and depth of GPT-4's capabilities, we believe that it could reasonably be viewed as an early (yet still incomplete) version of an artificial general intelligence (AGI) system." Moreover, on information and belief, OpenAI is currently developing a model known as Q* (Q star) that has an even stronger claim to AGI.
As noted, Microsoft only has rights to certain of OpenAI's pre-AGI technology. But for purposes of the Microsoft license, it is up to OpenAI, Inc.'s Board to determine whether OpenAI has attained AGI, and a Board coup took place in November 2023. On November 17, 2023, OpenAI, Inc.'s Board fired Mr. Altman after losing "confidence in his ability to continue leading OpenAI" because "he was not consistently candid with the board." In a series of stunning developments spanning the next several days, Mr. Altman and Mr. Brockman, in concert with Microsoft, exploited Microsoft's significant leverage over OpenAI, Inc. and forced the resignation of a majority of OpenAI, Inc.'s Board members, including Chief Scientist Ilya Sutskever. Mr. Altman was reinstated as CEO of OpenAI, Inc. on November 21. On information and belief, the new Board members were hand-picked by Mr. Altman and blessed by Microsoft. The new Board members lack substantial AI expertise and, on information and belief, are ill equipped by design to make an independent determination of whether and when OpenAI has attained AGI—and hence when it has developed an algorithm that is outside the scope of Microsoft's license.
These events of 2023 constitute flagrant breaches of the Founding Agreement, which Defendants have essentially turned on its head. To this day, OpenAI, Inc.'s website continues to profess that its charter is to ensure that AGI "benefits all of humanity." In reality, however, OpenAI, Inc. has been transformed into a closed-source de facto subsidiary of the largest technology company in the world: Microsoft. Under its new Board, it is not just developing but is actually refining an AGI to maximize profits for Microsoft, rather than for the benefit of humanity. Its technology, including GPT-4, is closed-source primarily to serve the proprietary commercial interests of Microsoft. Indeed, as the November 2023 drama was unfolding, Microsoft's CEO boasted that it would not matter "[i]f OpenAI disappeared tomorrow." He explained that "[w]e have all the IP rights and all the capability." "We have the people, we have the compute, we have the data, we have everything." "We are below them, above them, around them."
This case is filed to compel OpenAI to adhere to the Founding Agreement and return to its mission to develop AGI for the benefit of humanity, not to personally benefit the individual Defendants and the largest technology company in the world.
I don't know whether the allegations are sound, but the lawsuit certainly bears watching.
