Closing arguments are complete in Elon Musk vs. Sam Altman et al. But even as the nine-person jury began deliberations in a federal courthouse in Oakland, Calif., there was nothing normal about this case.
Thanks to Judge Yvonne Gonzalez Rogers, who will decide the future of OpenAI, the tech world’s trial of the century may yet have a few surprises up its sleeve.
In case you missed it, this trial was convened to determine the outcome of Musk’s 2023 lawsuit, which claimed that his fellow OpenAI cofounders defrauded him. Even before it began, this case had all the hallmarks of a catfight between Silicon Valley frenemies.
The scratching turned out to be fierce. Elon Musk’s testy testimony included him being forced to admit his co-parenting relationship with OpenAI executive Shivon Zilis, his eyes and ears at the company. Meanwhile, Sam Altman implied Musk cared more about memes than the company he co-founded.
Will Musk be sanctioned for skipping town?
Just when it seemed the drama couldn’t get messier, Musk skipped town when he’d told the judge he’d stick around in case he was needed.
We don’t know yet whether Judge Rogers, who runs a tight ship and has brooked no nonsense in this trial, will warn or sanction Musk for a rule violation. Neither the court nor Musk’s team has yet officially confirmed that no paperwork was filed prior to Musk’s departure to join the U.S. delegation in China.
OpenAI’s lawyers made hay out of Musk’s absence. “Mr. Musk isn’t here today,” said the company’s lead counsel, William Savitt, during closing arguments. “My clients are here. They’re here because they care about this.”
It was left to Musk’s attorney, Steven Molo, to apologize for his client’s absence, and to assure the jury that “this is something he’s passionate about.”
Molo went on to trash Altman and OpenAI president and cofounder Greg Brockman by comparing them to people standing by a rickety bridge, ensuring hikers of its safety. The bridge, in case you don’t get the metaphor, is “built on Sam Altman’s version of the truth.”
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But the jury may well see Musk, in this metaphor, as a cynical businessman who didn’t even show up at the bridge — or worse, wanted to move the bridge to Tesla and make a profit on it himself, back in 2017.
Musk “never cared about the nonprofit structure” of OpenAI, a company attorney said. “What he cared about was winning.”
While Molo repeatedly characterized OpenAI’s actions as “stealing a charity,” OpenAI’s lawyers repeated an equally memorable phrase about Musk: “sour grapes.”
How the judge and jury will decide what happens next
Luckily for Musk, the jury’s decision in this case is only advisory. Unluckily for Musk, it’s the judge who holds all the power at the moment. Not only is she free to disagree with the jury, but she also has the crucial task of deciding what, if anything, Musk is owed by OpenAI.
Rogers will convene additional hearings to discuss remedies that might apply if she and the jury agree that OpenAI breached the terms of its charitable trust. They will also need to agree that Musk filed suit within the three-year statute of limitations.
The TL;DR on that bit: if Musk believed OpenAI’s terms had been breached before August 2021, he has no standing.
Musk is asking for a remedy of $150 billion. Rogers isn’t bound to give him anything close to that. And of course, no matter what happens, both sides may appeal her verdict to a higher court.
A Musk tweet that might haunt him
Amid the Musk-Altman drama, not to mention Brockman’s drama-filled diary, in which he said it would be nice to be making billions, it’s important to remember that Musk is also suing Microsoft.
The company’s $10 billion investment in OpenAI was a catalyst for Musk’s lawsuit; Musk’s lawyer says that’s when OpenAI’s standing as a charitable organization was doomed. It was “a horse of a different color” compared to previous Microsoft investments, Molo said.
Microsoft’s closing argument essentially boiled down to: you guys, leave us out of it. The company says none of its due diligence at OpenAI turned up any restrictions against its investment.
Ironically, however, it is Microsoft’s presence that might doom Musk. OpenAI’s lawyers pointed to a Musk tweet from 2020 that read “OpenAI is essentially captured by Microsoft.”
The idea of a nonprofit being “captured” by a for-profit company seems like the very essence of a breach of charitable trust. So why did Musk wait another three years to take legal action? Thanks to the statute of limitations, that may end up being the $150 billion question.