Nine California jurors are now deliberating over the future of OpenAI, the world-leading artificial intelligence lab.
While the trial exploring Elon Musk’s case against OpenAI’s other cofounders and Microsoft has covered territory ranging from the breakup of the founders in 2018 to Altman’s firing and rehiring in 2023, the jurors will be considering a set of fairly narrow questions.
Breach of charitable trust — essentially, did OpenAI and cofounders Sam Altman and Greg Brockman violate a specific agreement with Musk to use his donations to OpenAI for a specific, charitable purpose and not general use by the non-profit?
Unjust enrichment — did the defendants use Musk’s donations to enrich themselves through OpenAI’s for-profit arm, instead of for charitable purposes?
Aiding and abetting breach of charitable trust — Did Microsoft, through its interactions with OpenAI, know that Musk had specific conditions on its donations, and play a significant role in causing harm to Musk?
OpenAI has also made three arguments in its defense that the jury will weigh:
Statute of limitations — a legal deadline by which a lawsuit must be filed. Here, if OpenAI can prove that any harms to Musk happened before August 5, 2021 for the first count; August 5, 2022 for the second count; and November 14, 2021 for the first count, then his claims will be moot.
Unreasonable delay — Musk, by filing his lawsuit in 2024, delayed his claim in a way that made his request for damages unreasonable.
Unclean hands — a legal doctrine holding that Musk’s conduct related to his claims against OpenAI was unconscionable and renders them invalid.
If Musk wins out, it could mean the end of OpenAI as a for-profit company, but it’s not entirely clear what will result. Next week, the judge will begin a set of new hearings where lawyers from both sides will debate what the consequences of a verdict in favor of the plaintiffs might be. That process could be rendered moot by a negative verdict, however.
Breach of charitable trust
Musk’s attorneys say the defendants clearly understood that Musk wanted to support a non-profit that would ensure the benefits of AI to the world, and prevent it from being controlled by any one organization. In particular, they say a $10 billion investment from Microsoft in 2023 into OpenAI’s for-profit affiliate—the first to happen after the statute of limitations—was the event that turned Musk’s concern into conviction.
That deal, Musk’s lawyers say, was different from previous investments and led to OpenAI’s investors being enriched by the company’s commercial products, at the expense of the charitable mission of AI safety that Musk promoted.
OpenAI’s attorneys have asked every witness to describe specific restrictions put on Musk’s donations, and none have, including his financial adviser Jared Birchall, his chief of staff Sam Teller, or his special adviser Shivon Zilis. They say everyone involved agreed that private fundraising would be required to achieve its goals, and note that Musk himself attempted to launch an OpenAI-affiliated for-profit he would personally control, and later to merge OpenAI into his company Tesla. They also note the organization’s other donors haven’t said their charitable trust was violated.
Importantly, a forensic accountant hired by OpenAI testified that all of Musk’s donations had been used by OpenAI well before the key date of August 5, 2021. That is evidence that Musk’s donations were already used for their purpose well before he brought his lawsuit, invalidating any charitable trust that may have existed.
Mainly, they insist that the for-profit affiliate that conducts most of OpenAI’s actual activity continues to fulfill the organization’s mission, and has generated nearly $200 billion in equity value to support the non-profit foundation. Notably, Sam Altman argued that providing ChatGPT for free helps fulfill the mission of sharing the benefits of AI with the world.
Unjust enrichment
The plaintiffs point to the multibillion-dollar valuations of stakes held by OpenAI founders like Brockman and Ilya Sutskever, as well as Microsoft itself, as a sign that Musk’s donations were ultimately used for personal benefit, as opposed to supporting the mission of the charity. They argue that the work at OpenAI’s for-profit was commercially focused, while the foundation itself was left essentially dormant, without full-time employees, and, ultimately, not even in control of the for-profit.
OpenAI says all of Musk’s contributions were used by the foundation by 2020, and that equity distributions came well after he left the organization in 2018. Even beforehand, evidence shows the key players agreed that being able to compensate researchers with stock was key to developing AGI, the hypothetical form of AI capable of performing any intellectual task a human can. OpenAI executives maintain that the for-profit’s work meaningfully advanced the foundation’s mission, including safety activities. They say the non-profit board continues to control the for-profit, and instituted new governance controls following “the blip,” when Altman was fired by OpenAI’s non-profit board in 2023 for lack of candor and then rehired just days later.
Aiding and abetting
Musk’s case focused on the events of the blip, when Microsoft CEO Satya Nadella, whose company depended on OpenAI’s tech, was personally involved with helping to bring Altman back and creating a new board to govern OpenAI. They note that Microsoft executives wondered if their commercial agreement might conflict with the non-profit’s goals, and suggest that Microsoft’s commercial priorities led OpenAI away from its mission. They’ve focused attention on a clause in Microsoft’s agreement with OpenAI that gave Microsoft veto rights over major corporate decisions at OpenAI.
Microsoft’s witnesses have insisted that the company’s executives didn’t know of any specific conditions on Musk’s donations despite extensive due diligence, and never vetoed any decision by OpenAI. They note that the company’s investments and compute power allowed OpenAI to achieve its biggest triumphs.
Statute of Limitations
Musk has suggested that his skepticism of his cofounders grew over time, until in the fall of 2022 he finally decided they had betrayed him when he found out about Microsoft’s plans for a new $10 billion investment that took place in 2023. He wouldn’t file his lawsuit until mid-2024.
OpenAI’s attorneys argue that the terms of that deal were spelled out in a term sheet for a previous fundraising round in 2018, which Musk received and his advisers reviewed, but Musk said he didn’t read in detail. They also note numerous blog posts and other communications from over the years that show Musk could have known what OpenAI was doing well before he brought them to court, including tweets where Musk criticized the company years before the suit. Zilis, Musk’s adviser, even voted to approve these transactions as a member of the OpenAI board.
Ultimately, the OpenAI attorneys emphasize that Musk’s formal role in the organization ended in 2018 and his last donations took place in 2020.
Unreasonable delay
OpenAI’s attorneys say the real reason that Musk filed his suit was he realized that he was wrong about OpenAI, after its launch of ChatGPT revolutionized the business of artificial intelligence. They argue that OpenAI has operated under its current structure since its first Microsoft investment in 2018, and that forcing the organization to restructure eight years later is unreasonable.
Unclean hands
There is evidence that Musk was planning his own competing AI efforts while he was still the chair of OpenAI, and hired OpenAI employees to work on AI at Tesla. OpenAI’s attorneys argue that these efforts undermined OpenAI at a time when it was using Musk’s donations to pursue its mission. They noted that Zilis, the mother of three of Musk’s children, didn’t disclose her personal relationship to other OpenAI board members for years. And they argue that Musk withheld his donations in 2017 in an effort to win control of a planned for-profit affiliate of OpenAI. Finally, “Mr. Musk abandoned OpenAI for dead in 2018,” Bill Savitt, OpenAI’s lead attorney, told the jury.
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