Elon Musk’s suit against OpenAI — right idea, wrong messenger

Loose cannon, always-looking-for-attention Elon Musk has again thrust himself into the public eye, this time by suing OpenAI and CEO Sam Altman for breaching its founding agreement by turning the company away from its non-profit roots and cashing in on the billions of dollars available in the generative AI (genAI) gold rush.

At stake in the suit is Microsoft’s $13 billion investment in the company. Musk claims that OpenAI was originally founded to share its wares with the world by open sourcing its technologies, something it abandoned thanks to the relationship with Microsoft.

The lawsuit is blunt: “OpenAI has been transformed into a closed-source de facto subsidiary of the largest technology company, Microsoft.”

At the heart of Musk’s suit is his claim that the latest version of ChatGPT, ChatGPT-4, is an artificial general intelligence (A.G.I.) system — a system that thinks as well or better than human beings on a wide variety of cognitive tasks and exhibits general problem-solving skills. In other words, it thinks much like humans, unlike the more limited capabilities of genAI like earlier versions of ChatGPT, and Microsoft’s Copilot.

Musk and others believe A.G.I. is a potentially dangerous form of AI because of its ability to think independently. His suit claims an A.G.I. algorithm is “expressly outside the scope of Microsoft’s September 2020 exclusive license with OpenAI,” so the license should be voided.

OpenAI denies all of Musk’s claims and launched a counterattack, portraying him in part as a spurned suitor who left OpenAI after trying to wrest control of it from the hands of Altman and others.

There’s a lot of truth behind Musk’s claims — and a lot of bombast and misinformation. To see who’s right, let’s start by looking at Musk’s role in founding the company, why he parted ways with it, and where things might go from here.

Musk’s relationship with OpenAI — it’s complicated

Musk co-founded OpenAI with Altman and other tech heavyweights in 2015 as a non-profit, in large part because in 2014 Google acquired the Deep Mind AI research group. Musk and the others worried that Google’s pursuit of profit would prevent AI from being used for good and could be a threat to humanity if developed unchecked.

OpenAI founders agreed to initially fund it out of their own pockets and stressed that they wanted OpenAI to be “used in the way that is most likely to benefit humanity as a whole, unconstrained by a need to generate financial return

Musk was particularly concerned about the downside of unchecked use of AI. His suit against OpenAI claims he “has long recognized that A.G.I. poses a grave threat to humanity — perhaps the greatest existential threat we have today.”

Although OpenAI’s founding was altruistic, when it became clear just how profitable AI could be, it turned itself into “a capped” for-profit company. That move was something of a legal bait-and-switch (that if we lived in the right kind of world would be outlawed). Under its terms, Microsoft can reap up to $13 trillion in profits from its $13 billion investment — and make even more by licensing Open AI technology.

The move unleashed OpenAI to pursue profit rather than the good of humankind.

Musk’s suit doesn’t take issue with OpenAI’s move to become a for-profit company. In fact, as OpenAI points out in a blog post attacking him, Musk wanted to get in on the action. In late 2017, the post claims, when Musk, Altman and others at OpenAI decided the company should turn into a for-profit one, “Elon wanted majority equity, initial board control, and to be CEO. In the middle of these discussions, he withheld funding.”

When Musk’s takeover bid failed, OpenAI claims, Musk suggested OpenAI be merged into Tesla, writing in an email that OpenAI should “attach to Tesla as its cash cow.” The other founders disagreed, and Musk quit OpenAI in a huff.

It’s all about A.G.I.

So, if the suit isn’t about profit, what is it about? A.G.I. The New York Times notes that, according to OpenAI’s founding agreement, “If OpenAI ever built something that met the definition of A.G.I. — as determined by OpenAI’s nonprofit board — Microsoft’s license would no longer apply, and OpenAI’s board could decide to do whatever it wanted to ensure that OpenAI’s A.G.I. benefited all of humanity. That could mean many things, including open-sourcing the technology or shutting it off entirely.

Musk claims that OpenAI’s GPT-4 “is better at reasoning than average humans,” has achieved A.G.I., and — because OpenAI is refusing to open-source its technology and continues to license the technology to Microsoft —  “flagrantly breaches” the founding agreement.

His suit doesn’t ask the court to take only his word for GPT-4 achieving A.G.I. He points to an in-depth 155-page research paper from Microsoft, “Sparks of A.G.I.” that concludes, “We believe that [GPT-4] could reasonably be viewed as an early (yet still incomplete) version of an artificial general intelligence (AGI) system.”

Musk’s suit adds that OpenAI’s board won’t agree that GPT-4 has achieved A.G.I. because then it will no longer reap massive profits from its technology, and it will have to share its technology with others.

The upshot

It’s unclear whether Musk will win the suit. The Times notes that Microsoft’s research paper “was not peer-reviewed, and its results cannot be reproduced because it was conducted on early versions of GPT-4 that were closely guarded at Microsoft and OpenAI.” Many AI experts don’t believe GPT-4 exhibits A.G.I. Even some members of the team that wrote the paper, the Times wrote, didn’t think GPT-4 has achieved A.G.I.

Beyond that, some lawyers don’t believe Musk has legal standing to bring the suit. A law professor at Boston College, Brian Quinn, put it this way to the Times, “If he were a member of the board of directors, I would say, ‘Ooh, strong case.’…But he doesn’t have standing. He doesn’t have a case.”

Given the vagaries of the law, the lawsuit might well go to trial. At that point, it would be up to a jury to decipher whether GPT-4 has achieved A.G.I., and if so, what should be done about it.

Despite Musk’s self-serving hypocrisy and greed, the suit should proceed. But even if it does, there’s a larger issue being ignored. OpenAI should never have been allowed to transforms itself from a non-profit into a for-profit company. Other companies shouldn’t be allowed to do it either. But don’t expect that to change. When billions of dollars are at stake, tech titans will always decide that humankinds’ future isn’t so important after all.