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.”
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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.
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.
Microsoft owns lots of Nvidia graphics processing units, but it isn’t using them to develop state-of-the-art artificial intelligence models.
There are good reasons for that position, Mustafa Suleyman, the company’s CEO of AI, told CNBC’s Steve Kovach in an interview on Friday. Waiting to build models that are “three or six months behind” offers several advantages, including lower costs and the ability to concentrate on specific use cases, Suleyman said.
It’s “cheaper to give a specific answer once you’ve waited for the first three or six months for the frontier to go first. We call that off-frontier,” he said. “That’s actually our strategy, is to really play a very tight second, given the capital-intensiveness of these models.”
Suleyman made a name for himself as a co-founder of DeepMind, the AI lab that Google bought in 2014, reportedly for $400 million to $650 million. Suleyman arrived at Microsoft last year alongside other employees of the startup Inflection, where he had been CEO.
More than ever, Microsoft counts on relationships with other companies to grow.
It gets AI models from San Francisco startup OpenAI and supplemental computing power from newly public CoreWeave in New Jersey. Microsoft has repeatedly enriched Bing, Windows and other products with OpenAI’s latest systems for writing human-like language and generating images.
Microsoft’s Copilot will gain “memory” to retain key facts about people who repeatedly use the assistant, Suleyman said Friday at an event in Microsoft’s Redmond, Washington, headquarters to commemorate the company’s 50th birthday. That feature came first to OpenAI’s ChatGPT, which has 500 million weekly users.
Through ChatGPT, people can access top-flight large language models such as the o1 reasoning model that takes time before spitting out an answer. OpenAI introduced that capability in September — only weeks later did Microsoft bring a similar capability called Think Deeper to Copilot.
Microsoft occasionally releases open-source small-language models that can run on PCs. They don’t require powerful server GPUs, making them different from OpenAI’s o1.
OpenAI and Microsoft have held a tight relationship shortly after the startup launched its ChatGPT chatbot in late 2022, effectively kicking off the generative AI race. In total, Microsoft has invested $13.75 billion in the startup, but more recently, fissures in the relationship between the two companies have begun to show.
Microsoft added OpenAI to its list of competitors in July 2024, and OpenAI in January announced that it was working with rival cloud provider Oracle on the $500 billion Stargate project. That came after years of OpenAI exclusively relying on Microsoft’s Azure cloud. Despite OpenAI partnering with Oracle, Microsoft in a blog post announced that the startup had “recently made a new, large Azure commitment.”
“Look, it’s absolutely mission-critical that long-term, we are able to do AI self-sufficiently at Microsoft,” Suleyman said. “At the same time, I think about these things over five and 10 year periods. You know, until 2030 at least, we are deeply partnered with OpenAI, who have [had an] enormously successful relationship for us.
Microsoft is focused on building its own AI internally, but the company is not pushing itself to build the most cutting-edge models, Suleyman said.
“We have an incredibly strong AI team, huge amounts of compute, and it’s very important to us that, you know, maybe we don’t develop the absolute frontier, the best model in the world first,” he said. “That’s very, very expensive to do and unnecessary to cause that duplication.”
President Trump’s new tariffs on goods that the U.S. imports from over 100 countries will have an effect on consumers, former Microsoft CEO Steve Ballmer told CNBC on Friday. Investors will feel the pain, too.
Microsoft’s stock dropped almost 6% in the past two days, as the Nasdaq wrapped up its worst week in five years.
“As a Microsoft shareholder, this kind of thing is not good,” Ballmer said, in an interview with Andrew Ross Sorkin that was tied to Microsoft’s 50th anniversary celebration. “It creates opportunity to be a serious, long-term player.”
Ballmer was sandwiched in between Microsoft co-founder Bill Gates and current CEO Satya Nadella for the interview.
“I took just enough economics in college — that tariffs are actually going to bring some turmoil,” said Ballmer, who was succeeded by Nadella in 2014. Gates, Microsoft’s first CEO, convinced Ballmer to join the company in 1980.
Gates, Ballmer and Nadella attended proceedings at Microsoft’s Redmond, Washington, campus on Friday to celebrate its first half-century.
Between the tariffs and weak quarterly revenue guidance announced in January, Microsoft’s stock is on track for its fifth straight month of declines, which would be the worst stretch since 2009. But the company remains a leader in the PC operating system and productivity software markets, and its partnership with startup OpenAI has led to gains in cloud computing.
“I think that disruption is very hard on people, and so the decision to do something for which disruption was inevitable, that needs a lot of popular support, and nobody could game theorize exactly who is going to do what in response,” Ballmer said, regarding the tariffs. “So, I think citizens really like stability a lot. And I hope people — individuals who will feel this, because people are feeling it, not just the stock market, people are going to feel it.”
Ballmer, who owns the Los Angeles Clippers, is among Microsoft’s biggest fans. He said he’s the company’s largest investor. In 2014, shortly after he bought the basketball team for $2 billion, he held over 333 million shares of the stock, according to a regulatory filing.
“I’m not going to probably have 50 more years on the planet,” he said. “But whatever minutes I have, I’m gonna be a large Microsoft shareholder.” He said there’s a bright future for computing, storage and intelligence. Microsoft launched the first Azure services while Ballmer was CEO.
Earlier this week Bloomberg reported that Microsoft, which pledged to spend $80 billion on AI-enabled data center infrastructure in the current fiscal year, has stopped discussions or pushed back the opening of facilities in the U.S. and abroad.
JPMorgan Chase’s chief economist, Bruce Kasman, said in a Thursday note that the chance of a global recession will be 60% if Trump’s tariffs kick in as described. His previous estimate was 40%.
“Fifty years from now, or 25 years from now, what is the one thing you can be guaranteed of, is the world needs more compute,” Nadella said. “So I want to keep those two thoughts and then take one step at a time, and then whatever are the geopolitical or economic shifts, we’ll adjust to it.”
Gates, who along with co-founder Paul Allen, sought to build a software company rather than sell both software and hardware, said he wasn’t sure what the economic effects of the tariffs will be. Today, most of Microsoft’s revenue comes from software. It also sells Surface PCs and Xbox consoles.
“So far, it’s just on goods, but you know, will it eventually be on services? Who knows?” said Gates, who reportedly donated around $50 million to a nonprofit that supported Democratic nominee Kamala Harris’ losing campaign.
AppLovin CEO Adam Foroughi provided more clarity on the ad-tech company’s late-stage effort to acquire TikTok, calling his offer a “much stronger bid than others” on CNBC’s The Exchange Friday afternoon.
Foroughi said the company is proposing a merger between AppLovin and the entire global business of TikTok, characterizing the deal as a “partnership” where the Chinese could participate in the upside while AppLovin would run the app.
“If you pair our algorithm with the TikTok audience, the expansion on that platform for dollars spent will be through the roof,” Foroughi said.
The news comes as President Trump announced he would extend the deadline a second time for TikTok’s Chinese-owned parent company ByteDance to sell the U.S. subsidiary of TikTok to an American buyer or face an effective ban on U.S. app stores. The new deadline is now in June, which, as Foroughi described, “buys more time to put the pieces together” on AppLovin’s bid.
“The president’s a great dealmaker — we’re proposing, essentially an enhancement to the deal that they’ve been working on, but a bigger version of all the deals contemplated,” he added.
AppLovin faces a crowded field of other interested U.S. backers, including Amazon, Oracle, billionaire Frank McCourt and his Project Liberty consortium, and numerous private equity firms. Some proposals reportedly structure the deal to give a U.S. buyer 50% ownership of the company, rather than a complete acquisition. The Chinese government will still need to approve the deal, and AppLovin’s interest in purchasing TikTok in “all markets outside of China” is “preliminary,” according to an April 3 SEC filing.
Correction: A prior version of this story incorrectly characterized China’s ongoing role in TikTok should AppLovin acquire the app.