Elon Musk’s lawsuit against OpenAI is hilariously bad

Elon Musk sued OpenAI today, claiming a wide range of seditious things, including that GPT-4 is actually an artificial general intelligence. It’s a nice complaint to read; it fundamentally accuses OpenAI and its CEO, Sam Altman, of pretending to run a nonprofit designed to benefit humanity, when in reality they are running a regular old tech company and trying to make a lot of money. That’s actually a pretty good critique of the whole OpenAI situation! Someone with some intellectual honesty and a competent lawyer should take a look at this.

Unfortunately, Musk isn’t that person, and his lawyers have figured out that letting the richest man in the world earn billable hours filing frivolous lawsuits is more lucrative than fitting the “facts” into the “law,” or whatever. regular lawyers do too.

Let’s just do the very first cause of action of the lawsuit, for example. It’s a breach of contract claim – a very, very simple claim that almost any first-year law student can assess, because step one asks whether there is an agreement, and step two is figuring it out what is in the contract. To have a valid contract, you need an offer, acceptance, and an exchange of value – what lawyers are trained to call “consideration,” in an ongoing effort to make simple concepts sound confusing and increase fees.

Most importantly, contracts should be written down – Proving that an unwritten contract exists, what its terms are and whether they are enforceable is extremely difficult, and courts do not like to do it, especially for ultra-sophisticated parties with a long history of doing business.

My friends, Musk flat out claims that OpenAI breached a contract that does not exist. It’s just nothing! The complaint refers to an “Incorporation Agreement,” but no such Establishment Agreement is included in evidence, and the breach of contract claim admits that the “Incorporation Agreement” is in fact a vibe that everyone caught in some emails. Seriously, this is what Musk’s lawyers wrote:

This founding agreement is commemorated, among other things, in the founding articles of OpenAI, Inc. and in numerous written communications between plaintiff and defendants over a period of several years.

(Lawyers use “remembered” as a fancy way of saying “written down,” because again, impenetrable language pays the bills.)

It then goes on to quote the ‘Articles of Association’, which are not a contract, which Elon Musk did not sign, and which simply say the following:

The specific purpose of this company is to provide financing for research, development and distribution of technology related to artificial intelligence. The resulting technology will benefit the public and the company will seek to open the source technology for the public benefit, if appropriate. The company is not organized for the private benefit of anyone.

There is no agreement there – maybe it’s true that OpenAI’s byzantine corporate structure, where a non-profit organization owns a for-profit corporation, undermines the ideals set forth in this document, but Musk can’t sue over that, because it does. no contract.

The breach of contract claim further references an email from Sam Altman to Elon Musk stating that the technology OpenAI is developing would be used for “the good of the world,” to which Musk responded, “Agreed with everything.”

I asked some lawyer friends if that looked like a contract, and most of them just made surprised faces. This ties in with Musk’s increasingly vague understanding of how contracts work; just now yesterday a judge told

This entire complaint seems more like a 1L exam question than an actual lawsuit – so much so that the second cause of action is something called “promissory estoppel,” a concept that has set the hearts of law professors on fire and ignites and emerges in the real world. almost never. The important thing to know is that the richest person in the world is now trying to tell a court that he somehow harmfully relied on the promises of a nonprofit when he donated millions of dollars to it without a written contract. This is extremely funny to say the least.

From there the complaint further blurs into a wet fart – there are some general state claims and then a last ditch cause of action for ‘accounting’, which has two elements under California law, one of which is that OpenAI owes Musk is. money. This is an unusual expectation, to say the least, for donations to a nonprofit organization.

Regardless, I suspect this case will remain a goldmine for law schools across the country, because it’s almost certain that OpenAI’s response will be another 1L favorite: a 12(b)(6) motion that must are rejected for “failure”. file a claim.”

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