Takeaways from the trial

A pox on both houses

FOR THE PAST MONTH we have provided daily coverage of the Musk v. Altman lawsuit for the Bay City News wire service and for Local News Matters. The case was decided Monday, the jury finding that Elon Musk’s claims were barred by the statute of limitations.

With the verdict delivered and the jury discharged, we decided to conclude our reportage with personal reflections on the case, what it means, and how we view the outcome.

Jay Harris

After the attorneys in the Musk v Altman trial spun their closing arguments last Thursday, I texted with an attorney friend, an experienced litigator who’d been following the proceedings.

In his closing, Elon Musk’s attorney had punched hard at the questionable integrity of Sam Altman. The OpenAI team countered with an assault on Musk’s motives and timing. Both teams mustered ample evidence to back their cases. After giving detailed instructions to the jury, Judge Yvonne Gonzalez Rogers let the lawyers slug it out.

“What might the jury make of it all?” I wondered to my friend.

“Sounds like the jury may want to say a pox on both your houses,” he wrote.

Indeed, nearly three weeks of testimony and evidence might have gotten them there.

In his lawsuit, Musk argued that OpenAI’s leaders had breached their nonprofit trust — that they violated the nonprofit’s mission to develop artificial general intelligence (AGI) safely and “for the benefit of humanity.” He said their hugely successful for-profit subsidiary, the one building AI bots now being used by a billion people, should be unwound. Musk’s nonprofit expert, David Schizer, a Columbia law professor, was effective when he testified that OpenAI’s way of doing things had violated all sorts of norms for nonprofits.

Musk’s charges raised a reasonable question, but Musk is an OpenAI competitor in the race for AGI. It was easy for its lawyers to question his motives.

And Altman, Brockman and others from OpenAI proclaimed, “We love the mission. We’re holding true to the mission. It’s mission all the way down.” They asked the jury to admire the work of the OpenAI Foundation (now with a $200 billion stake in the for-profit): AI for Alzheimer’s research. Research into how Universal Basic Income might mitigate the coming social disruption of AI.

For OpenAI’s case, it was inconvenient that the largesse had all happened after Musk filed his lawsuit. (Musk filed suit in 2024; the OpenAI Foundation was only capitalized and staffed after a restructuring last fall.) But $200 billion is not exactly chump change.

To clap back on their sincerity about the mission, Musk’s attorney pointed to the testimony of several close colleagues and board members who’d felt misled or lied to by Altman. In fact, the jury might have witnessed, firsthand, a small example of his slipperiness. As Altman testified under oath last week, he said that he was “unaware” of what journalist Ronin Farrow wrote in the recent, deeply unflattering portrait of him in The New Yorker.

Really, Sam? I don’t believe you. Did the jury?

I also wonder how the jury weighed the competing claims of humanitarian concern being made by men with billions. They heard the richest man in the world say that he was all about AI safety. Yet the OpenAI lawyers used evidence to paint Musk as a petulant control freak who used his power and reputation to squeeze his co-founders at every turn. When he didn’t get his way, he started his own for-profit AI venture. Hmm…

And if the jury was inclined to question the motives of billionaires, OpenAI had them up and down their lineup, too.

In his journal notes from 2018, Greg Brockman wrote: “Financially, what will take me to $1B?” Musk’s attorney, Steven Molo, grilled Brockman on the $30 billion of OpenAI stock he now owns. Molo asked, in essence, if you’re so devoted to this existential, world’s-future-at-stake mission, then why didn’t you give that extra $29 billion to the charity?

Fair point. Think about it: $30 billion. Brockman is obscenely rich. Altman is filthy rich, too. It came out in the testimony that Altman made bank through investments in companies that had deals with OpenAI. Conflicts of interest? It was all done by the book, he swore.

I wonder how the jury weighed the competing claims of humanitarian concern being made by men with billions, when most appeared to be just regular ol’ folks, getting by in this economy on regular ol’ wages and salaries.

Meanwhile, the jury appeared to be just regular ol’ folks, getting by in this economy on regular ol’ wages and salaries.

Outside the courtroom, there was so much more to question about what the trial’s AI billionaires are doing. There’s the Brockmans’ $25 million contribution to MAGA Inc., for instance, and his $50 million gift to a tech PAC formed to fight AI regulation. A person might worry about OpenAI’s agreement with “Secretary of War” Pete Hegseth opening the use of AI models for surveillance of American citizens. As far as that goes, what about Musk’s chainsaw-wielding adventure in “government efficiency”? None of that was mentioned in this trial — Gonzalez Rogers wouldn’t allow it in the courtroom. But how much of it was already there, pre-trial, in the minds of the jury?

“There are a lot of people out there who don’t like your client,” the judge explained to Musk’s lawyer during jury selection. “And there are plenty who don’t like Mr. Altman.”

A pox on both their houses.

“What happens then?” I texted my friend.

“Sometimes, if a jury is split on the big issues,” he wrote, “they may go to a less controversial, technical issue to agree on.”

Called it! The jury decided that Musk’s complaint was barred by the statute of limitations, and — poof! — the Big Issues and any chance for ambitiously imagined remedies were gone.

Post verdict, all of us punters facing AI-mageddon are left only with the hope that the OpenAI board of directors and public pressure will keep the OpenAI Foundation and its public benefit corporation subsidiary focused on meaningful work for the public’s interest. I’m glad the trial has put Altman and the others on record as committed to AI safety and “the transition” needed to ease the social disruption of their awesomely powerful tech. It’s something. But it’s a thin reed.

Faded hope aside, it has been fascinating to have had this third row, reserved-for-media seat at a live episode of Silicon Valley meets Game of Thrones. It was a scene, and I was in it. But after all the fuss, perhaps Musk v. Altman will have amounted to no more than an extravagant, well-covered spat among billionaires — a cockfight, just as my colleague Joe Dworetzky and ChatGPT rendered it. The world’s least sympathetic plaintiff vs. the world’s most devious defendant.

I find little comfort that devious won.

Joe Dworetzky

When I became interested in Elon Musk’s lawsuit against Sam Altman, Greg Brockman and OpenAI, I had been reading a great deal about advances in AI technology and — despite my generally cheerful, tech-forward, disposition — was falling into doomerism.

I worried that our institutions would not be able to restrain the risks of advanced artificial intelligence when money and power were lined up in opposition. My concern wasn’t based on a hypothetical. OpenAI’s corporate governance had been put to a very public test in November 2023 when the board of directors of the nonprofit OpenAI removed Altman and Brockman from their seats on the board and fired Altman, the CEO of the for-profit subsidiary.

Five days later, Altman and Brockman were back in the saddle.

That did not seem a good reason for confidence, but I believe in the courts. And as the case progressed, I had increasing confidence that the trial would tell us something about whether we have it in us, as a society, to forgo or restrain a technology that will have the capacity to deliver us many benefits but also may inflict great pain and misery.

If any of our institutions could do that, I thought, it would be the courts.

In our system, it is the courts — particularly the federal courts with lifetime appointments and judicial candidates who are more often than not accomplished people — that have stood tall even when the pressure is great.

I also believe in juries. Not just the audacious idea that a cluster of ordinary folks can come together to listen and use their common sense and life wisdom to find the truth in the midst of a legal fistfight; I believe that juries usually get it right. Not always of course, but usually.

As Jay Harris notes above, when we wrote the background pieces for our trial coverage, we framed the case as pitting the world’s least sympathetic plaintiff versus the most devious defendant. I loved that framing, for it was basically a prediction that a jury would find it a pox-on-both-houses situation. But if, as Jay suspects, that is what led to the jury blowing the case out on statute of limitations in two hours, it makes me realize that courts and juries will not be the ones to figure out how the coming artificial intelligence will be constrained.

For that, we will need to look to our leaders in the executive and legislative branches.

Fortunately, we can be confident that they have it under control.