There is something especially thrilling about watching two of the world’s richest and most influential tech CEOs go at it.
Both Elon Musk and Sam Altman have attracted their share of extreme lovers and haters, making the cage fight a true spectacle. Digging beneath the surface to understand what this fight is really about is no less engaging, notwithstanding the earnest legal principles at play.
The official framing, pressed by Musk’s lawyer in his opening statement, is a story of stolen charity – Altman and co-founder Greg Brockman reneged on a solemn promise to keep OpenAI a nonprofit dedicated to the benefit of humanity, and instead engineered a conversion that made them fabulously rich. “You can’t just steal a charity,” said Musk dramatically, leaving little doubt that this was a well-rehearsed statement.
It is a grand claim, possibly even a noble one. It is also, on closer examination, fragile (at best) and dishonest (at worst).
The origins of this kerfuffle are now Silicon Valley mythology.
OpenAI was founded in 2015 as a non-profit AI research lab, with Musk, Altman and others presenting it as a counterweight to Google DeepMind. Musk had long worried about artificial general intelligence, and in court he testified that he had created OpenAI to prevent AI from being concentrated in one corporate empire. Reuters reported that he told jurors OpenAI relied on his money, his recruiting power and his connections to Microsoft and Nvidia. My fuzzy memory of those days was that the arrangement looked like genuine enlightened philanthropy.
By 2017, Altman’s influence had grown while Musk’s had not. Escalating compute costs made it clear a commercial structure was necessary. According to OpenAI’s own contemporaneous documents, now in evidence, in 2017 Musk demanded majority equity, absolute control, and the CEO title of any new for-profit entity. He also proposed that OpenAI be merged into Tesla.
The other founders balked. Their written response was precise: “The goal of OpenAI is to make the future good and to avoid an AGI dictatorship. It is a bad idea to create a structure where you could become a dictator if you chose to.” This strikes me as amusingly understated – by 2017 everyone was aware of Musk’s dictatorial managerial style.
Captured the mood
Musk resigned from the board in February 2018. Greg Brockman’s diary entry from the preceding autumn captured the mood: “This is the only chance we have to get out from Elon” – he clearly did not like him very much. In any event, after Musk’s departure, OpenAI launched a capped-profit subsidiary, Microsoft invested $13 billion, ChatGPT launched in late 2022, and the company became one of the most valuable enterprises in history – currently valued at over $850 billion.
Every commentator has quietly done the arithmetic on that number. Musk’s lawyers argue that his contributions accounted for 50 to 75 per cent of OpenAI’s early value.
Assuming a founder-level equity position of 15 to 20 per cent – comparable to what Altman holds – and OpenAI’s current $850 billion valuation, Musk’s stake had he remained would conservatively sit somewhere between $80 billion and $130 billion today. His own legal filings have sought up to $134 billion in “wrongful gains”, which amounts to an inadvertent acknowledgement of exactly what he forfeited.
He donated only $38 million during the time he was there. He could now have been sitting on a position worth the GDP of a mid-sized country. He walked away because he could not get everything. And now he is suing for the value of what he chose not to have.
This is why Musk’s “charity” rhetoric feels so strained. In court he repeatedly framed the case as the defence of charitable giving, saying that if “looting a charity” is allowed, the foundation of American philanthropy is at risk. But if the judge agrees, he gets over $100 billion, which sort of erases the altruism from his sanctimony.
There were originally eight claims filed by Musk, but the judge threw most of them out.
What remains is narrow – breach of charitable trust and unjust enrichment against OpenAI/Altman/Brockman, and an aiding-and-abetting claim against Microsoft. That narrowing matters. Charitable trust law is technical. It asks not merely whether Musk feels betrayed, but whether there was a legally enforceable charitable purpose, whether OpenAI breached it, whether Musk has standing, and what remedy a court can plausibly impose on a business now intertwined with Microsoft, employees, investors, public-benefit governance and a global AI infrastructure buildout. All very dry.
The first week of testimony was not kind to Musk’s credibility.
Contradictions emerged
Under cross-examination, a series of contradictions emerged. He testified he never wanted permanent control – now disproved by the documents produced by OpenAI. He described 2017 discussions about a for-profit structure as mere “brainstorming” – yet records show he had already filed paperwork to incorporate a for-profit entity called “Open Artificial Intelligence Technologies, Inc.” He claimed not to have understood OpenAI’s Microsoft entanglement until it disturbed him – yet a 2020 post on his own platform read, “OpenAI is essentially captured by Microsoft”, cited by OpenAI’s lawyers as proof he knew years before filing suit.
Then came the admission that really caused a collective eyebrow raise. Asked whether his own AI company, xAI, had used OpenAI’s models to train its Grok chatbot – a practice banned by OpenAI’s terms of service – Musk answered: “Partly.” The man suing OpenAI for betraying its principles was, it emerged, violating them.
I wanted to check what the public thinks of Musk’s chances in court, and what better metric than Polymarket, which has priced in a likely Musk loss. On Polymarket, the contract “Will Elon Musk win his case against Sam Altman?” sits at 35 per cent probability of a Musk victory as of early May, down from higher levels before testimony began.
A separate contract on whether Musk wins a settlement of $10 billion or more gives him just 11 per cent. Settlement itself is priced at 30 per cent – with no visible signals from either party that they want one (although there is now a report that an attempted settlement was made a week before the trial).
The law
Of course, public betting markets are not juries and the law has still to have its say. But outside of the Oakland, California courtroom, what is really going on with Musk and Altman?
The charitable version is that two founders disagree about what OpenAI promised the world. The harsher, more convincing version is that Musk saw one of the most important companies of the AI age escape his orbit, become enormously valuable, and crown someone else as its prophet-king. That can’t have sat well.
[Image: ChatGPT]
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