Elon Musk sues OpenAI and its CEO Sam Altman

Originally published at: https://boingboing.net/2024/03/01/elon-musk-sues-openai-and-its-ceo-sam-altman.html


That’s not how founding charters work…


It does rather come across as yet another ‘if I can’t have it, no one can have it’ tirade from Musk.


Musk did invest some in the beginning, but I wonder if his lawyers can prove that he has standing to sue them.

Now that he’s jumped into AI, he wants to hobble a competitor.


I am not a lawyer, but “something, something, standing?”


I’m reading the actual complaint now (and I reiterate my desire that links to the actual legal documents be included in stories on these lawsuits—this is freely available public information and it would be nice to not have to go search for it—and this complaint is not aimed at BB’s contributors because they aren’t journalists—I mean this for the source articles). The complaint doesn’t talk much about standing, but it does point out that Musk has continued donating money to the non-profit OpenAI foundation, and that might be enough to give him standing. I fully expect OpenAI’s attorneys to file a motion to dismiss for lack of standing, so we’ll see how that plays out.

As much as I hate Musk, I think he’s kind of got a point here. I don’t know if there’s a legal case, but OpenAI was founded with the idea that AI technology needed to be open and freely accessible, at least as far as the code goes, and creating a for-profit subsidiary and getting in bed with Microsoft feels like going against that mission. I’m going to keep reading the complaint and give some more thoughts later, but my initial impression is that, while a lot of the language in the complaint is probably overstating Musk’s role in the development of AI and comes across as bragging, I’m not sure the underlying complaint doesn’t have some merit.


Oh, another thing I came across in the complaint that’s not really relevant to the lawsuit, but that I found interesting is this little gem:

On March 14, 2023, OpenAI released a new generation of its model, GPT-4. This
generation was not just capable of reasoning but was better at reasoning than average humans. GPT-4 scored in the 90th percentile on the Uniform Bar Exam. It scored in the 99th percentile on the GRE Verbal Assessment. It even scored a 77% on the Advanced Sommelier examination. By OpenAI’s own objective measures, GPT-4 is already capable of intelligence that is superior to humans on a wide variety of economically valuable tasks.

This is such bullshit. It scored that high on those exams because those exams had already been given and graded and had the answers published online. I could score pretty damn high, too, if I had the answer key available when I took the exam!


Yeah, it doesn’t seem like Musk is the right person or entity to bring this suit, but just because Musk is an asshole we shouldn’t assume that what Altman and Open AI is doing is legally OK. A couple months back when the Board tried to fire Altman and then eventually reversed course due to employee revolt, I read a number of articles by tech reporters and legal experts about what went down. Many were concerned because of the weird way that the company was intentionally set up as a supposed “nonprofit” with the Board being set up with the intention of having a “kill switch” that could put a stop to things or even dissolve the company if the company started doing evil or harmful shit. The episode clearly demonstrated that the board didn’t really have the power that they were supposed to have.


HIs claim that "Open"AI is a de-facto Microsoft subsidiary with an eccentric ownership structure puts me in the uncomfortable position of substantially agreeing with Elon Musk about something; but I’m vastly less confident of either him having standing to whine about it; or of MS’ lawyers being sufficiently sloppy to be incapable of ensuring that the de-facto control doesn’t leave ugly de jure traces that might be a problem.


Here’s the substantive part of the complaint. I think it has merit. Whether Musk has standing is another issue. Maybe he can get someone who unquestionably has standing like a current board member. But I don’t think this is a frivolous lawsuit.

G. The Founding Agreement Is Breached In 2023
90. Having reached the threshold of AGI, which under the Founding Agreement they were to develop for the benefit of humanity rather than for any for-profit company or personal profit, Defendants instead radically departed from their mission in breach of the Founding Agreement. GPT-4 is an entirely closed model. The internal design of GPT-4 remains a secret and no code has been released. OpenAI has not published a paper describing any aspect of its internal design; it has simply issued press releases boasting about its performance. The internal details of GPT-4 are known only to OpenAI and, on information and belief, to Microsoft. GPT-4 is hence the opposite of “open AI.” And it is closed for propriety commercial reasons: Microsoft stands to make a fortune selling GPT-4 to the public, which would not be possible if OpenAI—as it is required to do—makes
the technology freely available to the public. Contrary to the Founding Agreement, Defendants have chosen to use GPT-4 not for the benefit of humanity, but as proprietary technology to maximize profits for literally the largest company in the world. Further, OpenAI’s entire development is now veiled in secrecy and the public only has rumors and isolated fragments of communications to understand what may be released next.


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Ok, I finished reading it. I encourage everyone to go read it. It’s not full of legalese. It’s very digestible. The link is in my first comment.

Again, I think the core complaint, that OpenAI is no longer doing what it promised to do in keeping AI technology open to the public, has merit. GPT-4 is proprietary and licensed exclusively to Microsoft. This is legitimately problematic, regardless of the legal merits of the case, but I think it has merit. Whether Musk has standing is going to be the issue, but he was an original board member and he donated millions of dollars to get the project off the ground. He may have standing.

But Musk is also seeking a declaration from the court that GPT-4 constitutes Artificial General Intelligence, and I think that’s ridiculous. He’s basically arguing that we’ve crossed the singularity. He’s out of his tree.


I mean that’s not what’s happened, though. They aren’t suing someone who used the source code. And Musk isn’t suing them for them suing someone else. The core issue, again, is that they locked the source code up, made it proprietary, and licensed it only to Microsoft. That does seem to directly violate the terms of their incorporation as a non-profit. But I’m not an expert in this, or really any, legal area (yet), so we’ll just have to wait and see.


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I know that the Free Software foundation has won cases of violation to the GPL, so… if something is under a GPL-type license (I don’t know if that’s the case or not?), then they could win on that…so, from what you’re saying here, the big stumbling block is standing (whether Musk has it)?


Yeah, I don’t know. That’s going to be the important details that will have to come out in discovery. Personally, I think the core problem is that non-profits are even allowed to form for-profit subsidiaries. That seems more than slightly problematic, but apparently it’s perfectly legal. That’s just me, though, and I’m a flaming lefty, so make of that what you will.


Okay! Thanks for your analysis!

I do wonder if this is a “let them fight” scenario, as I have no love lost for either asshole and think they’re both making the world worse (and it doesn’t help that Microsoft is involved either!).


The notion of what is “open” (or “open source”) in AI circles is different from the standard definition as applied to open-source software such as Linux, anyway. The typical definitions of “open source” for software stipulate that you essentially receive anything you need to make the program run on your computer (plus the right to give whatever you received, possibly with your modifications, to third parties under the same stipulations).

The problem with this as far as typical AI applications are concerned is that the actual program code tends to be much less interesting than the makeup (let alone concrete content) of the datasets that were used to train them – and even if people are reasonably forthcoming about the code, when it comes to the datasets they tend to become very cagey indeed. In the case of GPT-4 and friends, the training datasets are also monstrously huge and require significant processing power to use. All of this means that when you hear “open” AI, you shouldn’t think “oh, it’s like Linux, anyone can use it” because that is emphatically not the case. Not even people with the wherewithal to rebuild such an application from scratch from published sources generally can pull it off.

(Some people are offering ready-made AI models which you can extend with reasonable – as opposed to impossibly humongous – effort to support your own applications but even then it is often not entirely clear exactly what went into the original model.)


Yeah, I don’t believe for a second that Musk has altruistic motives. I think he’s mad he’s not getting a cut.


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That dickhead doesn’t have a altrustic bone in his body… but neither does Altman or Microsoft, they’re just better at cosplaying like they are…


I didn’t read through the whole complaint, but I found the text of Articles 3 and 5 of the Articles of Incorporation as stated in the complaint. Based on what is actually stated in plain English here, I agree with you that the case has merit. If Musk still owns shares, I think that would give him standing as well.

It would seem to me that everything hinges on how much leeway the second half of this sentence in Article 3 gives them: “The resulting technology will benefit the public and the corporation will seek to open source technology for the public benefit when applicable.”

Since, as you mentioned, non-profits are somehow allowed to form for-profit subsidiaries, I think that it comes down to a matter of whether the resulting technology can then be used by the for-profit subsidiary, and whether or not that and “public benefit” are mutually exclusive.

ETA: Wow, the more I think about it, this could actually go to trial. And the trial would be absolutely bonkers!

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