THE THIRD WEEK OF TRIAL in Elon Musk’s lawsuit against Sam Altman, Greg Brockman and OpenAI finished Thursday with closing arguments.
The nine-person jury — six women, three men — will begin deliberations on Monday and attempt to reach a unanimous verdict in the high-profile trial. Musk’s suit involves the governance of a frontier AI developer as the technology continues to advance toward artificial general intelligence, or AGI. AGI will be achieved when computers are as smart as people in virtually all endeavors.
Musk claims that his fellow OpenAI co-founders, Altman and Brockman, betrayed the company’s nonprofit mission by opening a for-profit arm for their own personal enrichment. Microsoft is a named defendant for what Musk alleges was aiding and abetting the “steal” of the charity.
Closing arguments
Closing arguments are an opportunity for the parties’ lawyers to assume the role of storytellers. The jury has heard all the evidence, but it has not come chronologically nor been organized by subject matter. In their closings, the lawyers from each side extract threads from the evidence to make their cases, weaving the fabric into a comprehensive vision of what it all means.
In their opening statements three weeks ago, each of the principal lawyers — Steven Molo for Musk, William Savitt for the OpenAI group, and Russell Cohen for co-defendant Microsoft — told the jurors their versions of what the evidence would show. In their presentations they hammered on key themes that would be shown in the evidence. In their closings, the lawyers returned to those themes.
For Musk the theme was that Altman and Brockman “stole a charity,” a phrase that encapsulates his claim that they used a charitable enterprise — OpenAI was formed as a nonprofit — to unjustly enrich themselves and co-defendant Microsoft.
OpenAI’s theme was “this suit is not about concern for humanity; it’s all about Musk.” They kept their focus on what they depict as Musk’s hypocrisy. They claim Musk styled himself as out to protect the world from the risk that AI could be under the control of one company, when he actually aimed to control the technology himself.
Microsoft’s theme was “we dotted the I’s and crossed the T’s.” Cohen didn’t use that precise phrase, but it reflects his argument that Microsoft did everything appropriately, conducted deep due diligence and never had reason to think that they could not make the investments that it made.
Molo speaks for Musk
After profusely thanking the jury for engaging attentively, Molo started swinging. His primary target was Altman, though Brockman was also pilloried.
Molo reviewed the evidence showing that Altman had a history of lying to and misleading the people he dealt with. He summarized points from his examination of Altman, reminding the jury that one trial witness after another — including three former board members of OpenAI — testified that Altman had lied to them and/or colleagues.
He used that testimony to pose a rhetorical question to the jury. He painted a scene where a person was about to cross a bridge over a deep chasm and asked, “If the bridge was built on Sam Altman’s version of truth, would you walk over that bridge?”
From there he walked through the main elements of Musk’s claim for breach of charitable trust — arguing that there was a charitable trust, and that it had been violated. He reminded the jury of evidence that the trust was created by the state charter that established nonprofit OpenAI and defined its mission, as well as by OpenAI’s statement on its website that shared the mission with the world.
He identified Musk’s contributions — $38 million in cash donations — and argued that the funds were directed not for general charitable purposes but to support something specific: the pursuit of safe AI for the purpose of benefiting humanity and not for the financial benefit of any individual. He reviewed Musk’s testimony about why these purposes were important to him, bringing out that Musk could have easily set up the company as a for-profit, as he had all the other companies he has formed over the years.
Molo reminded the jury that Musk has long been concerned about the risk that a single owner of super machine intelligence would be very dangerous. He recounted Musk’s meeting with then President Barack Obama to urge — unsuccessfully — for regulation, and his meeting with Larry Page, former CEO of Google, who called Musk a “species-ist” for being in favor of humankind.
Molo then turned to a delicate subject. Because of concerns about the statute of limitation, he wanted to explain to the jury why Musk was okay with transactions between OpenAI and Microsoft in 2019 and 2021, but not okay with a third transaction between those parties in 2023. He explained that the first two deals were not objectionable because Microsoft’s return on its investments was capped and the amounts were consistent with Musk’s idea of what was appropriate.
In late 2022, Musk learned the terms of a proposed third transaction with Microsoft. He recognized that this deal would be different from the earlier transactions both in its size and in the scope of the grant of rights to OpenAI’s technology. It was so different, he believed, that it amounted to “stealing the charity.”
Molo used Brockman as the poster boy to illustrate the results of the breach. Brockman, he reminded the jury, had promised $100,000 in donations — hoping to induce other donors to the nonprofit — but he did not actually make any contributions. Instead, Brockman got a share of equity in the for-profit corporation formed after Musk left OpenAI’s board. Though Brockman did not invest any money, his share today is worth $30 billion, an amount that Molo repeated multiple times to emphasize its enormity.
OpenAI’s closing
The legal team for the OpenAI defendants — OpenAI, Brockman and Altman — divided their time between Sarah Eddy and Savitt. While the argument was shared, both lawyers went hard at Musk’s credibility.
Eddy began by saying that Musk now claims that he had “strings” on his donations that go on “forever” and can be used to “tie OpenAI in knots.” She went through Musk’s primary contentions, characterizing each one as unsupported by the evidence or completely “made-up.”
Eddy went through document after document with granularity, using those exhibits to contradict Musk’s claims. She painted Musk as the only person who testified at the trial — on either side — who supported his story about the conditions of his donations. She said that Musk made up his claim that a for-profit had to be “a small adjunct” to the nonprofit, one that occupied a “subservient” role. She supported it with exhibits that showed Musk had no objection to raising sums as large as $10 billion.
She used the discussions among the co-founders in August and September 2017 as a way to reframe Musk’s contentions that the other founders — Brockman, Altman and Ilya Sutskever — were scheming to steal the charity. She said that the three ultimately rejected Musk’s demands to prevent Musk from obtaining “absolute control” over AGI.
Savitt took up where Eddy stopped and savaged Musk’s credibility and his motives.
He also spoke up for Altman, addressing claims that Altman was a liar. Savitt acknowledged that harsh things were said about Altman by other members of the board in November 2023 and that there were problems at OpenAI that had to be addressed, but he suggested that those things were not about safety as Molo had suggested.
“We are here because Mr. Musk didn’t get his way,” Savitt told the jury.
He concluded by noting that his clients were in court for the closing statements because the case is important to them. He noted that Musk was not present and had only come to court when he testified. He said that Musk was “off somewhere” likely a reference to reports that Musk was in China.
Microsoft’s counsel Cohen
After thanking the jury, Russell Cohen began by stating, “Microsoft was responsible at every step and did its due diligence.” He went on to repeat the core argument from his opening statement that Microsoft never knew that there were any conditions on Musk’s donations.
Cohen told the jury, “Now you know why. Because they do not exist.”
Cohen then walked through Microsoft’s contributions to OpenAI and explained how they have helped the company achieve its mission. He said they were creating success — not substantially assisting in a breach of a trust. He asked the jury to recall Sutskever’s testimony that the difference in the technology between 2018 and 2024 was the difference between an ant and a cat, showing a graphic of a very small ant and a very large cat. Cohen noted that the period included much of Microsoft’s involvement.
In his telling, Microsoft’s involvement has led to a “virtuous cycle” in which Microsoft’s funding fueled success, creating demand for more capital. Microsoft supplied the capital, which in turn spurred more success. He said Microsoft has spent or will spend $100 billion to fulfill its commitments to OpenAI.
He closed with the statute of limitations. Given the date of suit against Microsoft in 2024, the key date was Nov. 14, 2021. If Musk knew or should have known of its claim before that date, his claim is barred. Cohen pointed out that in September 2020, well before the relevant date, Musk tweeted that Microsoft had “captured” OpenAI.
What it means, Cohen said, is that Musk is out of time.
He told the jury that when they deliberate, “Just remember the tweet.”
Molo Rebuttal
Molo had much to accomplish during his minutes of rebuttal, and he scrambled to hit as many points as he could in his limited time.
He finished by telling the jury that “everybody has rights, even a very rich guy like Elon Musk.”
He added that the jury had an opportunity to do something that “not many people in life get a chance to do: right a wrong.”
At the end of the day, he said, “We are asking for justice.”
When he finished, the judge gave the jury their instructions and excused them until Monday.