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Elon Musk, owner of Tesla and the X (formerly Twitter) platform, attends a symposium on fighting antisemitism titled ‘Never Again : Lip Service or Deep Conversation’ in Krakow, Poland on January 22nd, 2024.

Beata Zawrzel | Nurphoto | Getty Images

When it comes to legal disputes, Elon Musk’s definition of victory may not always be winning in court.

Last week, Musk sued OpenAI and co-founders Sam Altman and Greg Brockman for breach of contract and fiduciary duty. Experts say the case is built on a questionable legal foundation, because the contract at the heart of the suit isn’t a formal written agreement that was signed by all parties involved.

Rather, Musk is alleging that the early OpenAI team had set out to develop artificial general intelligence, or AGI, “for the benefit of humanity,” but that the project has been transformed into a for-profit entity that’s largely controlled by principal shareholder Microsoft.

Musk used much of the 35-page complaint (plus attached exhibits) on Friday to tell his side of the story and to remind the world of his central position in the creation of a company that’s since become one of the hottest startups on the planet, (OpenAI ranked first on CNBC’s Disruptor 50 list in 2023) thanks largely to the viral spread of ChatGPT.

“It’s certainly a good advertisement for the benefit of Elon Musk,” Kevin O’Brien, partner at Ford O’Brien Landy LLP and former assistant U.S. attorney, told CNBC. “I’m not sure about the legal part though.”

O’Brien, who isn’t involved in any cases with Musk, added, “One thing that jumped right out at me is there’s no contract.”

In the suit, Musk’s lawyers say they want OpenAI to return to its work as a research lab and no longer exist for the “financial benefit” of Microsoft. Musk, who’s worth over $200 billion, is unconcerned about the legal costs of floating a suit that has no clear personal economic benefit and is of questionable merit.

Shannon Capone Kirk, global head of e-discovery and AI for Ropes & Gray LLP, told CNBC that Musk might just be seeking to force more information into the public realm about how OpenAI has been operating and how its business objectives have morphed in recent years.

Sam Altman, CEO of OpenAI, during an interview at Bloomberg House on the opening day of the World Economic Forum in Davos, Switzerland, on Jan. 16, 2024.

Chris Ratliffe | Bloomberg | Getty Images

It’s a “high-profile case with great public interest, a consequence of which might lead to OpenAI being available to everyone,” said Kirk, who isn’t working on any cases involving Musk. “Is that the real objective?”

In their complaint, Musk’s attorneys allege that OpenAI “has been transformed into a closed-source de facto subsidiary of the largest technology company in the world: Microsoft.” They also say the arrangement goes against a founding agreement and 2015 certification of incorporation that OpenAI established with Musk, who was a pivotal donor to OpenAI in its early years.

Musk’s attorneys said their client contributed over $15 million to OpenAI in 2016, which was “more than any other donor” and helped the startup build a team of “top talent.” The next year, Musk gave nearly $20 million to OpenAI, which the attorneys reiterated was more than other backers. In total, Musk invested over $44 million into OpenAI from 2016 through September 2020, according to the suit.

The lawsuit fits a pattern for Musk, who has frequently posted on X and commented in public forums about his importance to the creation of OpenAI.

In November, Musk told an audience at the The New York Times’ DealBook conference that OpenAI had deviated from its original mission.

“OpenAI should be renamed ‘super closed source for maximum profit AI,’ because this is what it actually is,” Musk said onstage at the event. He noted that it’s transformed from an “open source foundation” to multibillion-dollar “for-profit corporation with closed source.”

Read more CNBC reporting on AI

Is there injury?

In the suit, Musk’s attorneys allege that the inner workings of OpenAI’s GPT-4 AI model are “a complete secret except to OpenAI—and, on information and belief, Microsoft,” and that the secrecy is driven by commercial gain rather than safety. Musk has publicly beefed with Microsoft for a while, and in May 2023, Musk attorneys accused the company of using X (formerly Twitter) data in unauthorized ways.

Even if OpenAI’s mission has changed, that doesn’t mean Musk has a solid legal case.

“If he has any hopes to recover, he’s going to have to prove that there was this agreement – that the company be open and not for profit and all these other things, and that the failure to do so has caused him injury, which is a separate problem,” O’Brien said. “It’s hard to see where the injury is here.”

Musk’s attorneys didn’t respond to a request for comment.

Musk has an AI company of his own, X.AI, which introduced a competing chatbot called Grok in November after two months of training. In December, X.AI filed with the SEC to raise up to $1 billion in an equity offering. And Musk is also developing autonomous vehicle tech and humanoid robotics, which require AI advances, at Tesla.

He’s been known to hire bigwigs from OpenAI, poaching Andrej Karpathy, a former OpenAI software engineer, over to Tesla in 2017. More recently, Musk hired Kyle Kosic from OpenAI to join X.AI.

One of Musk’s goals with this case, lawyers said, may be to shed light on details of OpenAI’s GPT-4 in the discovery process, should it get that far. O’Brien said it can be tough to keep intellectual property and other internal details private when a lawsuit is brought.

Elon Musk could face an uphill battle regarding his standing in the case: UCLA Law's Rose Chan Loui

Kirk agreed, saying that in the discovery stage, there may be “lots of document requests for all kinds of communication,” such as internal conversations, text messages and more. Some of the documents produced may come with protective orders that keep them out of the public.

A portion of Musk’s lawsuit rests on the idea that OpenAI has already reached AGI, typically defined as AI that can operate on the same level — or higher — than humans when completing a wide array of cognitive tasks. The suit claims that since GPT-4 is “better at reasoning than average humans” based on test scores on the Uniform Bar Exam, GRE Verbal Assessment and even the Advanced Sommelier exam.

As part of its contract with OpenAI, Microsoft only has rights to OpenAI’s “pre-AGI” technology, and it’s up to OpenAI’s board to determine whether the company has reached that milestone.

In a memo to employees on Friday following the lawsuit, OpenAI said that “GPT-4 is not an AGI.”

“Importantly, an AGI will be a highly autonomous system capable enough to devise novel solutions to longstanding challenges,” Chief Strategy Officer Jason Kwon wrote. “GPT-4 can’t do that.”

Much of the AI community is in agreement with Kwon.

Kirk said “part of what they’re going to be litigating” is the question of what is AGI.

Read the full complaint here:

Elon Musk wants OpenAI to break the Microsoft contract and be a nonprofit again: Walter Isaacson

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Shares in Chinese chipmaker SMIC drop nearly 7% after earnings miss

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 Shares in Chinese chipmaker SMIC drop nearly 7% after earnings miss

A logo hangs on the building of the Beijing branch of Semiconductor Manufacturing International Corporation (SMIC) on December 4, 2020 in Beijing, China.

Vcg | Visual China Group | Getty Images

Shares of Semiconductor Manufacturing International Corporation, China’s largest contract chip maker, fell nearly 7% Friday after its first-quarter earnings missed estimates.

After trading on Thursday, the company reported a first-quarter revenue of $2.24 billion, up about 28% from a year earlier. Meanwhile, profit attributable to shareholders surged 162% year on year to $188 million.

However, both figures missed LSEG mean estimates of $2.34 billion in revenue and $225.1 million in net income, as well as the company’s own forecasts.

During an earnings call Friday, an SMIC representative said the earnings missed original guidance due to “production fluctuations” which sent blended average selling prices falling. This impact is expected to extend into the second quarter, they added.

For the current quarter, the chipmaker forecasted revenue to fall 4% to 6% sequentially. Gross margin is also expected to fall within the range of 18% to 20%, compared to 22.5% in the first quarter.

Still, the first quarter saw SMIC’s wafer shipments increase by 15% from the previous quarter and by about 28% year-on-year.

In the earnings call, SMIC attributed that growth to customer shipment pull in, brought by changes in geopolitics and increased demand driven by government policies such as domestic trade-in programs and consumption subsidies.

In another positive sign for the company, its first-quarter capacity utilization— the percentage of total available manufacturing capacity that is being used at any given time— reached 89.6%, up 4.1% quarter on quarter.

Demand in China for chips is extremely strong, says Benchmark's Cody Acree

“SMIC’s nearly 90% utilization rate reflects strong domestic demand for semiconductors, likely driven by smartphone and consumer electronics production,” said Ray Wang, a Washington-based semiconductor and technology analyst, adding that the demand was also reflected in the company’s strong quarterly revenue growth.

Meanwhile, the company said in the earnings call that it is “currently in an important period of capacity construction, roll out, and continuously increasing market share.”

However, SMIC’s first-quarter research and development spending decreased to $148.9 million, down from $217 million in the previous quarter.

Amid increased demand, it will be crucial for SMIC to continue ramping up their capacity, Simon Chen, principal analyst of semiconductor manufacturing at Informa Tech told CNBC.

SMIC generates most of its revenue from older-generation semiconductors, often referred to as “mature-node” or “legacy” chips, which are commonly found in consumer electronics and industrial equipment.

The state-backed chipmaker is critical to Beijing’s ambitions to build a self-sufficient semiconductor supply chain, with the government pumping billions into such efforts. Over 84% of its first-quarter revenue was derived from customers in China.

“The localization transformation of the supply chain has been strengthened, and more manufacturing demand has shifted back domestically,” a representative said Friday.

However, chip analysts say the chipmaker’s ability to increase capacity in advance chips — used in applications that demand higher levels of computing performance and efficiency at higher yields — is limited.

This is due to U.S.-led export controls, which prevent it from accessing some of the world’s most advanced chip-making equipment from the Netherlands-based ASML. 

Nevertheless, the chipmaker appears to be making some breakthroughs. Advanced chips manufactured by SMIC have reportedly appeared in various Huawei products, notably in the Mate 60 Pro smartphone and some AI processors.

In the earnings call, the company also said it would closely monitor the potential impacts of the U.S.-China trade war on its demand, noting a lack of visibility for the second half of the year.

Phelix Lee, an equity analyst for Morningstar focused on semiconductors, told CNBC that the impacts of U.S. tariffs on SMIC are limited due to most of its revenue coming from Chinese customers.

While U.S. customers make up about 8-15% of revenue on a quarterly basis, the chips usually remain and are consumed in Chinese products and end users, he said.

“There could be some disruption to chemical, gas, and equipment supply; but the firm is working on alternatives in China and other non-U.S. regions,” he added.

SMIC’s Hong Kong-listed shares have gained over 32.23% year-to-date.

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Amazon adds pet prescriptions to its online pharmacy

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Amazon adds pet prescriptions to its online pharmacy

Close-up of a hand holding a cellphone displaying the Amazon Pharmacy system, Lafayette, California, September 15, 2021. 

Smith Collection | Gado | Getty Images

Amazon is expanding its online pharmacy to fill prescription pet medications, the company announced Thursday.

The company said it has added “hundreds of commonly prescribed pet medications” to its U.S. site, ranging from flea and tick solutions to treatments for chronic conditions.

Prescriptions are purchased via Amazon’s storefront and must be approved by a veterinarian. Online pet pharmacy Vetsource will oversee the dispensing and delivery of medications, said Amazon, adding that items are typically delivered within two to six days.

Amazon launched its digital drugstore in 2020 with the added perk of discounts and free delivery for Prime members. The company has been working to speed up prescription shipments over the past year, bringing same-day delivery to a handful of U.S. cities. Last October, Amazon set a goal to make speedy medicine delivery available in nearly half of the U.S. in 2025.

The new pet medication offerings puts Amazon into more direct competition with online pet pharmacy Chewy, as well as Walmart, which offers pet prescription delivery.

Amazon Pharmacy is part of the company’s growing stable of healthcare offerings, which also includes One Medical, the primary care provider it acquired for roughly $3.9 billion in July 2022. Amazon’s online pharmacy was born out of the company’s 2018 acquisition of online pharmacy PillPack.

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Here's a first look at Vulcan, Amazon's new stowing robot that can feel what it touches

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Coinbase acquires crypto derivatives exchange Deribit for $2.9 billion

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Coinbase acquires crypto derivatives exchange Deribit for .9 billion

The Coinbase logo is displayed on a smartphone with stock market percentages on the background.

Omar Marques | SOPA Images | Lightrocket | Getty Images

Coinbase agreed to acquire Dubai-based Deribit, a major crypto derivatives exchange, for $2.9 billion, the largest deal in the crypto industry to date.

The company said Thursday that the cost comprises $700 million in cash and 11 million shares of Coinbase class A common stock. The transaction is expected to close by the end of the year.

Shares of Coinbase rose nearly 6%.

The acquisition positions Coinbase as an international leader in crypto derivatives by open interest and options volume, Greg Tusar, vice president of institutional product, said in a blog post – which could allow it take on big players like Binance. Coinbase operates the largest marketplace for buying and selling cryptocurrencies within the U.S., but has a smaller share of the global crypto market, where activity largely takes place on Binance.

Deribit facilitated more than $1 trillion in trading volume last year and has about $30 billion of current open interest on the platform.

“We’re excited to join forces with Coinbase to power a new era in global crypto derivatives,” Deribit CEO Luuk Strijers said in a statement. “As the leading crypto options platform, we’ve built a strong, profitable business, and this acquisition will accelerate the foundation we laid while providing traders with even more opportunities across spot, futures, perpetuals, and options – all under one trusted brand. Together with Coinbase, we’re set to shape the future of the global crypto derivatives market.”

Tusar also noted that Deribit has a “consistent track record” of generating positive adjusted EBITDA the company believes will grow as a combined entity.  

“One of the things we liked most about this deal is that it’s not just a game changer for our international expansion plans — it immediately diversifies our revenue and enhances profitability,” Tusar told CNBC.

The deal comes at a time when the crypto industry is riding regulatory tailwinds from the first ever pro-crypto White House. Support of the industry has fueled crypto M&A activity in recent weeks. In March, crypto exchange Kraken agreed to acquire NinjaTrader for $1.5 billion, and last month Ripple agreed to buy prime broker Hidden Road.

Don’t miss these cryptocurrency insights from CNBC Pro:

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