ChatGPT, Microsoft and Competition Law – Nemesis or Fresh Chance for Digital Markets Enforcement?

Abstract

ChatGPT is one of the current mega topics, on users’ computer screens, in the public debate, but also already in the courtrooms. At the same time, Microsoft is pushing ChatGPT to a new level by integrating it into its Copilot software. The resulting “Chatpilot” may become a very important driver of innovation and efficiency, but it should also, early on, be a monitoring object for competition law enforcers and digital regulators. In case competition risks materialize, Chatpilot could also become a laboratory for the combined application of the EU’s new Digital Markets Act (DMA) and general competition law, for their respective adaptability to novel technologies, and for the design of appropriate remedies. Especially regarding the latter aspect, EU competition law has already gathered some thorny experiences, not least in cases concerning Microsoft. History doesn’t repeat itself, but it rhymes, and Chatpilot may show whether competition law has learned something from these experiences. This contribution explores these topics by sketching the workings of ChatGPT and Chatpilot, by discussing potential theories of harm to competition, by assessing whether the DMA may be applicable to Chatpilot and – if so – whether it contains helpful rules of conduct, by pointing out general competition law doctrines potentially helpful at least in a gap-filling function, and by addressing, as an important remedies aspect, the preferability of unbundled alternatives or selection mechanisms. A concluding section will look at the comparative relevance of general competition law and the DMA in a potential Chatpilot case, including their interim measure provisions.

Keywords: ChatGPT, Microsoft, AI, algorithms, data, competition law, towercast, ilumina, grail, essential facilities doctrine