(Photo by Apu Gomes/Getty Images)
Elon Musk sued OpenAI claiming that he’d been duped when he invested in the folks behind ChatGPT. Musk asserted that he thought he was investing in a non-profit and OpenAI’s business partnership with Microsoft — through a for-profit subsidiary — amounts to a bait-and-switch. On the eve of a hearing on the motion to dismiss, Musk dropped the suit.
Which is probably for the best before someone has to walk into a courtroom with arguments like these:
“Imagine donating to a non-profit whose asserted mission is to protect the Amazon rainforest, but then the non-profit creates a for-profit Amazonian logging company that uses the fruits of the donations to clear the rainforest. That is the story of OpenAI, Inc.,” Musk said.
Well, more like the non-profit creates a for-profit eco-tourism company using the fruits of a protected rainforest. And while a hypothetical environmentalist might still object to that, it’s a far cry from a pivot to clear-cutting.
OpenAI’s for-profit ventures are still controlled by the non-profit entity. Essentially, the non-profit decided that a limited for-profit business would best serve the non-profit mission by bringing funds to the greater charitable mission.
As explained in the Columbia Law School Blue Sky Blog:
In short, Nonprofit-OpenAI’s charitable purposes were meant to guide the whole operation. Those purposes, found in Nonprofit-OpenAI’s Delaware certificate of incorporation, are “to provide for research, development and distribution of technology related to artificial intelligence. The resulting technology will benefit the public and the corporation will seek to open source technology for the public when applicable.”
“When applicable” is open to a lot of interpretation but at the very least contemplates that, in some cases, OpenAI would not be making the technology open source.
OpenAI — the non-profit — has fiduciary duties to ensure that the for-profit work is oriented toward furthering the non-profit goals. And if the board is breaching those duties, regulators can get involved. Given the events of the last several months — CEO Sam Altman’s whirlwind ouster and return — those agencies probably should start poking around. But a donor to an entity that explicitly says in its governing documents that it’s not always going to make its products open source doesn’t present the strongest legal challenge.
What, exactly, did Musk think OpenAI would do with the AI tools it built? This is a guy whose primary claim to fame is charging $70K to make cars for eco-minded consumers so spare the “environmentalism should be a charity” narrative. At a certain point the hippy-dippy non-profit was going to make a product with a business application and then it was supposed to… what? Zealously guard its IP from ever seeing the light of day? We’re not talking about the HAL 9000 here — it’s a Clippy redux.
To belabor the analogy a bit longer, the rainforest has value in being left alone. Artificial intelligence does not. Whatever tool OpenAI developed would have some application. The organization can control what it releases to the public with its twin edicts to be “safe and beneficial” and to try to provide tech to the masses when it can in mind, but at some point it would have a technology that could be and is in fact better utilized by a business.
Say what you will about private enterprise, but unleashing artificial intelligence to the public domain isn’t necessarily “safe and beneficial” either.
With the lawsuit dropped, Mr. “Why Aren’t We Preserving the Rainforest” here can get back to trying to build his own rival AI manufacturer to compete with OpenAI.
It’s almost as though the idea that AI should be shielded from the vagaries of capitalism isn’t a real priority for him at all.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.