TikTok’s parent company, ByteDance, has been secretly using OpenAI’s technology to develop its own competing large language model (LLM). “This practice is generally considered a faux pas in the AI world,” writes The Verge’s Alex Heath. “It’s also in direct violation of OpenAI’s terms of service, which state that its model output can’t be used ‘to develop any artificial intelligence models that compete with our products and services.’”
I doubt if it is clear-cut enough to bring down enforcement in any case. However, that does not mean that the clause is enforceable.
It is easy to circumvent such a ban. Eventually, the only option that MS has is suing. Then what?
Why would the clause be unenforceable? It doesn’t violate any of the general principles of contract law. If you intentionally contract around these terms that don’t violate any existing body of law and don’t run counter to public interest, a court would have no problem enforcing the terms of a contract. They probably wouldn’t sue you or me in our individual capacity if we circumvented. There’s a much greater chance of recovery if they go after a company which is pretty clearly using their service in a bad faith. If ByteDance wanted to use their LLM to train their own, they could’ve negotiated such a license.