will generative ai make the google antitrust case moot

By Dr. Jim Castagnera, Esq., Partner, Portum Group International, LLC

The whole world was watching, as the Google antitrust trial started this week in a U.S. federal court.  The New York Times called it “the most consequential trial over tech power in the modern Internet era.”  The Indian Express explained, “In the present case, the DoJ along with a coalition of 37 states, contends that Google is illegally stifling competition by making payments worth $10 billion annually to Apple and Mozilla Firefox, among others, to ensure its place as the default search provider on smartphones and web browsers.” [https://indianexpress.com/article/explained/explained-law/google-antitrust-trial-8940159/]

The case is grounded in the 1890 Sherman Antitrust Act, which states that “every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal”. The plaintiffs allege that Google enjoys a 90% share of the search-engine business.  That sure sounds like a monopoly.

But is it really?  In a 51-page filing with the federal court in the District of Columbia, Google notes that an increasing number of consumers are turning to specialized search engines, such as Amazon’s website for their shopping needs and Instagram for entertainment news.

A more acute point is the challenge being mounted against traditional Internet search engines, Google being no exception, by generative AI.  True, ChatGPT, the super-chatbot that’s been receiving most of the attention since its launch last November, has a problem its creator, OpenAI, calls “hallucinating.”  The prime example --- now an iconic story --- involves hapless attorneys, who filed a brief containing alleged legal precedents, which in fact ChatGPT had woven from whole cloth.   

A federal judge tossed a lawsuit and issued a $5,000 fine to the plaintiff's lawyers after they used ChatGPT to research court filings that cited six fake cases invented by the artificial intelligence tool made by OpenAI.

Lawyers Steven Schwartz and Peter LoDuca of the firm Levidow, Levidow, & Oberman "abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question," US District Judge Kevin Castel wrote in an order yesterday. The lawyers, Castel wrote, "advocated for the fake cases and legal arguments" even "after being informed by their adversary's submission that their citations were non-existent and could not be found."

[https://arstechnica.com/tech-policy/2023/06/lawyers-have-real-bad-day-in-court-after-citing-fake-cases-made-up-by-chatgpt/]

If you think that the folks at OpenAI [https://openai.com/] aren’t working furiously to end these “hallucinations,” you’d best think again.  GPT-4 is ChatGPT’s smarter younger sister.

We’ve created GPT-4, the latest milestone in OpenAI’s effort in scaling up deep learning. GPT-4 is a large multimodal model (accepting image and text inputs, emitting text outputs) that, while less capable than humans in many real-world scenarios, exhibits human-level performance on various professional and academic benchmarks. For example, it passes a simulated bar exam with a score around the top 10% of test takers; in contrast, GPT-3.5’s score was around the bottom 10%. We’ve spent 6 months iteratively aligning GPT-4 using lessons from our adversarial testing program as well as ChatGPT, resulting in our best-ever results (though far from perfect) on factuality, steerability, and refusing to go outside of guardrails.

[https://openai.com/research/gpt-4]

Thomson Reuters, the owner of Westlaw, seems comfortable with generative AI:  “Westlaw Precision will soon have Generative AI capabilities. By combining Gen AI with everything you already know and trust about Westlaw — including industry-leading legal content, unmatched editorial enhancements, and over 150 years of legal industry expertise — you will soon be able to find the answers you need faster and easier than you ever thought possible.”

At this point in this week’s Blog, a couple of definitions may be in order.  Let me google them for you:

• Generative AI: “Generative artificial intelligence is artificial intelligence capable of generating text, images, or other media, using generative models. Generative AI models learn the patterns and structure of their input training data and then generate new data that has similar characteristics.” [Wikipedia]

• ChatGPT: “ChatGPT, which stands for Chat Generative Pre-trained Transformer, is a large language model–based chatbot developed by OpenAI and launched on November 30, 2022, which enables users to refine and steer a conversation towards a desired length, format, style, level of detail, and language used.”[Wikipedia] 

Thus, ChatGPT is a subset of generative AI.  You may detect some irony in the fact that “GPT stands for generative pre-trained transformer. A transformer is a type of AI deep learning model that was first introduced by Google in a research paper in 2017.” [https://www.cio.com/article/474809/chatgpt-the-rise-of-generative-ai.html]  Now Google is scrambling to catch up with its competing “Bard”. “Bard is a conversational generative artificial intelligence chatbot developed by Google, based initially on the LaMDA family of large language models and later the PaLM LLM.” [Wikipedia]  This statement begs for one more definition:

• Large Language Model (LLM): “A large language model (LLM) is a specialized type of artificial intelligence (AI) that has been trained on vast amounts of text to understand existing content and generate original content.” [https://www.gartner.com/en/information-technology/glossary/large-language-models-llm]

Google, and for that matter OpenAI, are part of a growing crowd of what I call “super chatbots”.  Here are some others.  This list was compiled by Kaushik Pal in an article entitled “Who are the Competitors of ChatGPT? 10 Biggest Market Players”, which was published by Techopedia:

Microsoft Bing Chat

Another key competitor in the LLM market is Microsoft Bing Chat, an AI-powered version of Microsoft’s Bing search engine, which launched in February 2023….

Bing Chat uses GPT-4 as its underlying LLM, which gives it an advantage over ChatGPT which is based on the less powerful GPT-3.5. Bing Chat performs better at answering search queries and providing more relevant results at the time of writing.

Meta Llama 2

Llama 2 is Meta’s… open-source large language model…, which supports up to 70 billion parameters, and is trained on 40% more data than the original version of Llama….

[O]ne of Llama 2’s main selling points is the fact that its free for research and commercial use.

Claude

Claude is a next-generation AI assistant produced by Anthrophic that’s uses natural language processing to generate conversational text based on training data from up to December 2022.

Claude can summarise, search and create content and creative writing in a format that’s more conversational than ChatGPT….

GitHub CoPilot

GitHub Copilot is a AI-driven coding assistant designed to help software developers create code using the Codex LLM. The solution is designed to provide auto-complete suggestions for code and syntax while the user is typing….

Jasper AI

Jasper is an AI virtual assistant and copilot assistant that’s designed specifically to help produce marketing content with GPT-3.5….

Amazon’s new language model

Amazon is another big player in the generative AI marketplace. Earlier this year it proposed the multimodal chain of thought LLM, which was reportedly significantly more efficient than GPT 3.5….

Amazon Codewhisperer

Amazon Codewhisperer is an another AI tool that’s been designed specifically for developers. It uses NLP and ML algorithms to check code and provide real-time recommendations….

Character AI

Character AI is chatbot developed by ex-Google’s LaMDA developers that uses a neural language model to impersonate historical individuals like Charlie Chaplin and William Shakespeare or fictional characters like Oliver Twist and Sherlock Holmes….

Perplexity AI

Perplexity AI is an AI chatbot based on GPT-3 and GPT-4, that acts like search engine, scanning the internet to respond to user queries. Perplexity AI was originally released in August 2022.

One notable feature included with Perplexity AI is that it also shows the source of the information it provides to the user….

[https://www.techopedia.com/who-are-the-competitors-of-chatgpt]

So… let’s assume --- as I’m sure we reasonably can--- that super-chatbots such as ChatGPT and Bard learn not to “hallucinate” (aka fabricate or make up) fictitious “facts.”  And let’s further assume --- which I concede is less certain --- that Google’s Bard fails to pull out in front of the pack.  While not a certainty, this seems to me a sound assumption, given the presence of Microsoft and Amazon on the competitors’ list above.  

Add one further assumption:  we, the consumers, demonstrate a preference for using super-chatbots over old-fashioned search engines.  (Never thought I’d be calling Google “old fashioned”.)  Might that not blow Google’s apparent monopoly right out of the water?

The trial is expected to last ten weeks.  And an appeal seems inevitable, regardless of what the federal trial judge decides.  Above the U.S. Court of Appeals for the District of Columbia sit the Supremes.  I think a landmark antitrust case like this one, which goes to the heart of high-tech in the first quarter of the new century, will be irresistible to the nine justices.

This means it’ll be a couple of years before the case is resolved… unless it’s settled sooner.  Let’s hope that doesn’t happen, since the litigation raises profound issues that demand definitive resolutions.  

While the case is bulldozing its way through the federal court system, generative AI technology will not be standing still.  If anything, its progress will accelerate geometrically in the months and years immediately ahead.  And this robust development --- perhaps climaxing in “The Singularity”* --- may more or less moot the final, final judgment in the Google case.

*The Singularity: “The technological singularity is a hypothetical future event in which technological progress becomes so rapid and exponential that it surpasses human intelligence, resulting in a future in which machines can create and improve upon their own designs faster than humans can. This could lead to a point where machines are able to design and build even more advanced machines, leading to a runaway effect of ever-increasing intelligence and eventually resulting in a future in which humans are unable to understand or control the technology they have created.” [https://www.aiforanyone.org/glossary/technological-singularity]