With global regulators examining Microsoft Corp.âs $13 billion investment in OpenAI, the software giant has a simple argument it hopes will resonate with antitrust officials: It doesnât own a traditional stake in the buzzy startup so canât be said to control it.
When Microsoft negotiated an additional $10 billion investment in OpenAI in January, it opted for an unusual arrangement, people familiar with the matter said at the time. Rather than buy a chunk of the cutting-edge artificial intelligence lab, it cut a deal to receive almost half of OpenAIâs financial returns until the investment is repaid up to a pre-determined cap, one of the people said. The unorthodox structure was concocted because OpenAI is a capped for-profit company housed inside a non-profit organization.
Itâs not clear regulators see a distinction, however. On Friday the UK Competition and Markets Authority said it was gathering information from stakeholders to determine whether the collaboration between the two firms threatens competition in the UK, home of Googleâs AI research lab DeepMind. The US Federal Trade Commission is also examining the nature of Microsoftâs investment in OpenAI and whether it may violate antitrust laws, according to a person familiar with the matter.
The inquiries are preliminary and the agency hasnât opened a formal investigation, according to the person, who asked not to be named discussing a confidential matterâŚThe move by the UK raises the question of whether antitrust regulators in other regions, namely the European Union and the US, will launch similar probes. When asked to comment on the CMAâs move, a European Commission spokesperson said the regulator had been âfollowing the situation of control over OpenAI very closely.â
âŚMicrosoft didnât report the transaction to the agency because the investment in OpenAI doesnât amount to control of the company under US law, the person said. OpenAI is a non-profit and acquisitions of non-corporate entities arenât reported under US merger law, regardless of value. Agency officials are analyzing the situation and assessing what its options are.
âWhile details of our agreement remain confidential, it is important to note that Microsoft does not own any portion of OpenAI and is simply entitled to a share of profit distributionsâ, a Microsoft spokesperson said in a statement. Earlier Friday, Microsoft President Brad Smith said âthe only thing that has changed is that Microsoft will now have a non-voting observer on OpenAIâs board.â He described its relationship with OpenAI as âvery differentâ from Googleâs outright acquisition of DeepMind in the UK.
âOur partnership with Microsoft empowers us to pursue our research and develop safe and beneficial AI tools for everyone, while remaining independent and operating competitively. Their non-voting board observer does not provide them with governing authority or control over OpenAIâs operationsâ, said an OpenAI spokesperson in a statement.