This argument comes up a lot. It would turn everyone whose device became part of a botnet into a criminal. There's a reason that intent is important in law.
People in "self-driving" cars getting into accidents are already put on trial for negligence. I don't see why people using self-driving computers can't be held to the same standards.
In this case, it's not even about the people driving self-driving cars. It's like someone launching a car into traffic just to see what would happen. Even Tesla puts a human in the car when they do their self-driving trials, it's almost impressive that AI companies have somehow managed to out-neglige Tesla.
There's a reason that negligence is important in law.
Could/should not every incident after the discovery of the first incident be considered criminal negligence? What happens when an agent eventually causes material damage to another company, government systems, banking, critical infrastructure etc, surely the source company is guilty of something and if not disclosed or a coverup is attempted is that not conspiracy. From the victims perspective they don't care if the source is OpenAI or Russian hackers.
Maybe this would force people to look what they are buying and demand better.
It's not the same. People owning routers don't publish self-serving articles about their routers having this capability which is very dangerous and scary. That is, becoming part of botnet is completely unintended outcome, and most people are not suspecting it's even happening. It's not advertised and it's not bought, used or sold for this reason.
Owning a gun, writing articles about how powerful and dangerous your gun is, then making deals based on ability of your gun to kill people, and then getting completely astonished that "my gun killed some people, completely bonkers! (invest now)". It's not possible for the selling point of your product to be unintended.