The big winner in Elon Musk’s suit against OpenAI and Microsoft — hypocrisy

If ever there were a lawsuit in which a jury and judge should have ruled against both the accuser and the defendants, Elon Musk’s suit against OpenAI and Microsoft was it. 

The high-profile legal battle pitted the world’s richest man against a company worth more than $3 trillion, another that might soon launch a $1 trillion IPO, and tech execs claiming to have only the good of the world in mind, not mere filthy lucre, while they develop a technology some fear could eventually destroy humankind.

The lawsuit was eventually thrown out, but only on technical grounds. Meanwhile, unregulated AI marches on, with Musk, OpenAI and Microsoft all getting richer.

The only winner in this suit was hypocrisy. Here’s why.

Back to the beginning

To understand how this unfolded, we need to go back to OpenAI’s beginnings. The company was founded by current CEO Sam Altman, Musk and others in 2015 — back when AI was a niche technology, used primarily for image and speech recognition, robotics, and experiments in self-driving cars.

The founders funded OpenAI out of their own pockets as a nonprofit company aimed at developing AI for the good of the world. Then, as the technology evolved, Altman, Musk and others grew worried it might become so powerful that, without serious guardrails, it could pose a danger to humans. They feared what might happen if AI reached the level of a super-powerful artificial general intelligence (AGI) system, superior to humans on a variety of tasks, with general problem-solving skills rather than narrowly targeted ones – and the ability to think for itself rather than heeding humans. 

In an earlier version of Musk’s suit against OpenAI and Microsoft, Musk put their fears this way: “A.G.I. poses a grave threat to humanity — perhaps the greatest existential threat we have today.”

Early on, OpenAI wasn’t on many people’s radar. When Microsoft invested $1 billion in the company in 2019, few outside the tech industry took notice. Between 2021 and 2023 Microsoft invested $2 billion more, still without drawing a lot of attention.

Then in November 2022, OpenAI released ChatGPT, launching the generative AI (genAI) revolution — and all the disruption that has followed since. Eventually, as it became clear how important and valuable genAI technology would become, Microsoft’s investment ballooned to $13 billion.

Nonprofit no more

OpenAI insiders were convinced several years before ChatGPT’s release that the company could become tremendously profitable. With potentially trillions of dollars at stake, in 2017 they started looking for a way to turn the nonprofit operation into a for-profit company.

It was at that point, OpenAI says, that Musk pushed to gain majority equity in the company if it went public, take control of the board, and become CEO. When the other founders balked, Musk withheld funding.

Last year, OpenAI released copies of emails he sent to it during the height of their in-fighting. In one, in February 2018, he lobbied for the creation of a for-profit arm, pointing out that, “a for-profit pivot might create a more sustainable revenue stream over time and would, with the current team, likely bring in a lot of investment.” 

Musk then suggested that OpenAI “attach to Tesla as its cash cow.” When the other founders dismissed the idea, Musk threw a fit and quit the company. OpenAI went ahead and launched a for-profit arm, becoming a hybrid of a for-profit and nonprofit company in 2019.

Years later, in 2024, Musk filed suit, targeting OpenAI, Altman, OpenAI co-founder and president Greg Brockman, and Microsoft — accusing them of “stealing a charity” by creating the for-profit arm of OpenAI, and taking the $13 billion Microsoft investment. He claimed they had all illegally enriched themselves through the profit/nonprofit setup and sought $150 billion in damages. (OpenAI fired back last year with a counter suit.)

It took only two hours for the jury to rule against Musk, though the ruling didn’t address his actual claims. Rather, the suit was thrown out because it had been filed after the statute of limitations had run out.

Cynicism and hypocrisy win out

Everyone in this case was driven by venality. Altman portrayed himself as only wanting to develop AI to help humanity — and as evidence, pointed out he has no equity in OpenAI. What he neglected to add, though, is that he has more than a $2 billion stake in companies that have deals with OpenAI, and stands to gain billions more if those deals grow after any IPO.

Microsoft, meanwhile, has used its investments in OpenAI to become a multi-trillion-dollar company. And if, as expected, OpenAI becomes a trillion-dollar company when it files its IPO later this year, Microsoft’s 27% ownership stake in the company would make it $270 million richer. That’s not a bad payoff for turning a blind eye to the way in which OpenAI performed a bait-and-switch from nonprofit to for-profit company. 

As for Musk…, well, what can you say about someone who claims he wants to save humankind from the evils of AI, while at the same time lobbying for OpenAI to become a for-profit company and milking it like a cash cow? 

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