Elon Musk OpenAI Lawsuit: Navigating the Future of AI Ethics and Governance

Illustration of AI ethics and responsibilities

Introduction: The AI Paradigm Shift

In the heart of Silicon Valley, a legal battle unfolds that may well dictate the trajectory of artificial intelligence (AI) and its governance for generations to come. At the center of this battle is Elon Musk, a figure synonymous with technological innovation and foresight, who has filed a lawsuit against OpenAI, the very organization he helped to create. Musk’s lawsuit, lodged in the Superior Court of California, San Francisco, encompasses allegations of breach of contract, promissory estoppel, breach of fiduciary duty, unfair competition, and demands an accounting. This case is not merely a dispute over contractual obligations; it is emblematic of a deeper philosophical divide regarding the future of AI. Musk envisions a world where AI serves the greater good, advancing humanity while being accessible and open. In contrast, the allegations suggest a shift towards proprietary technology and profit-driven motives, diverging from the founding principles of OpenAI. As this legal drama unfolds, it holds the potential to shape not only the future of AI development but also the ethical framework within which it operates, making it a landmark case with far-reaching implications.

Musk’s Vision vs. OpenAI’s Path

Elon Musk, a trailblazer in multiple technology arenas, played a foundational role in the establishment of OpenAI, driven by a vision to democratize AI technology for the betterment of humanity. This vision was deeply rooted in the principles of openness, transparency, and the collective good, aiming to ensure that AI advancements remained accessible and not under the control of any single entity or for-profit motives. However, the lawsuit alleges a significant pivot from these founding ideals, accusing OpenAI of transitioning to a for-profit model, entering into exclusive agreements with Microsoft, and deviating from the open-source ethos. This shift represents not just a potential breach of contract but a departure from the envisioned path of using AI as a force for widespread benefit. The crux of Musk’s legal challenge lies in this divergence, highlighting a philosophical and operational rift that could have profound implications for the future of AI development and its impact on society. This section explores the genesis of OpenAI through Musk’s involvement, contrasting it with the current allegations that suggest a move towards proprietary technology, potentially sidelining the broader goals of AI safety and accessibility.

Legal Framework and Challenges

The lawsuit filed by Elon Musk against OpenAI introduces a complex legal framework encompassing breach of contract, promissory estoppel, breach of fiduciary duty, and unfair competition. These allegations shed light on the nuanced and often uncharted legal territory that emerging technologies like AI navigate. The case hinges on foundational agreements and Musk’s contention that OpenAI has strayed from its mission, potentially compromising the ethical and open-source principles that were supposed to guide its operations. This section delves into the legal intricacies of the dispute, examining the challenges of enforcing agreements in the rapidly evolving tech landscape. It also explores the significance of promissory estoppel in this context, highlighting the reliance on and the breach of foundational promises. The unfolding legal battle not only underscores the importance of clear, enforceable agreements in tech partnerships but also raises critical questions about fiduciary duties and the governance of technology entities aimed at serving the public good.

Case Summary

Page 1

– The complaint was filed by attorneys from IRELL & MANELLA LLP on behalf of Elon Musk. – The defendants include Samuel Altman, Gregory Brockman, Openai, Inc., and other related entities. – The complaint alleges breach of contract, promissory estoppel, breach of fiduciary duty, unfair competition, and requests an accounting. – The case is being filed in the Superior Court of California, County of San Francisco. – Musk is demanding a jury trial.
Page 2

– The complaint provides background information on the parties involved, including their state of residence and/or place of business. – Elon Musk is now a resident of Texas, but was a resident of California prior to 2019. – Samuel Altman and Gregory Brockman are both residents of San Francisco. – Openai, Inc. is a non-profit organization incorporated in Delaware, but registered as a foreign corporation in California. – Openai, L.P., Openai, L.L.C., Openai GP, L.L.C., and Openai OpCo, LLC are all registered in Delaware, but maintain their principal places of business in California.
Page 3

– The complaint identifies three additional entities related to Openai: Openai Global, LLC, OAI Corporation, LLC, and Openai Holdings, LLC. – “Openai, Inc.” is used to refer to the non-profit entity, while “Openai” is used to refer to all related entities collectively. – The complaint acknowledges that there are unknown defendants (Doe 1 through Doe 100) whose identities are not yet known. – The complaint asserts that jurisdiction and venue are appropriate in San Francisco, California, where most of the defendants reside or have their principal place of business. – The complaint begins to describe the risk of artificial general intelligence, noting the shift from a human labor-based economy to a human knowledge-based economy.
Page 4

– The document discusses the development of artificial intelligence (AI) and the early successes of AI programs. – It notes that early AI programs were limited in scope, but that the advent of “deep learning” algorithms allowed for a significant increase in performance across a wide range of tasks. – The document discusses the concept of artificial general intelligence (AGI) and the potential risks it poses to humanity. – Elon Musk is described as being concerned about the threat posed by AGI, with his concerns mirroring those of other prominent figures.
Page 5

– The document discusses Google’s acquisition of DeepMind, a research group focused on deep learning. – It describes the development of AlphaZero, a chess playing algorithm that uses “reinforcement learning” to improve its performance. – The document notes that AlphaZero rapidly became the strongest chess playing system in the world, and was also able to excel at two other difficult games. – The document discusses Elon Musk’s concerns about the potential dangers posed by AGI, particularly in the hands of a for-profit company like Google. – The document introduces the founding agreement of OpenAI, Inc., which was created in response to these concerns.
Page 6

– Elon Musk, Samuel Altman, and Gregory Brockman agreed to form a non-profit AI lab called OpenAI, Inc. – The Founding Agreement stipulates that the lab will be open-source and will not keep its technology closed for proprietary reasons. – The Certificate of Incorporation reaffirms that the lab is not organized for the private gain of any person. – Musk was a key figure in the creation of OpenAI, Inc., contributing funding, advising on research, and recruiting scientists and engineers.
Page 7

– Musk continued to contribute to OpenAI, Inc. until September 2020. – OpenAI, Inc. initially conducted research openly, providing free access to designs, models, and code. – OpenAI, Inc. researchers discovered that the “Transformers” algorithm could perform many natural language tasks without explicit training. – Samuel Altman became CEO of OpenAI, Inc. in 2019. – OpenAI, Inc. entered into an agreement with Microsoft in September 2020, licensing the GPT-3 language model to Microsoft. – In 2023, OpenAI, Inc. released GPT-4, which is capable of reasoning better than average humans. – OpenAI, Inc. kept the design of GPT-4 secret, which Musk alleges is a breach of the Founding Agreement.
Page 8

– GPT-4 is now a Microsoft proprietary algorithm, which it has integrated into its Office software suite. – Musk alleges that GPT-4 is an AGI algorithm, and therefore outside the scope of Microsoft’s license with OpenAI. – OpenAI is developing a model known as Q* that has an even stronger claim to AGI. – A Board coup took place in November 2023, resulting in the firing of Samuel Altman. – Altman and Brockman, in concert with Microsoft, forced the resignation of a majority of OpenAI’s Board members. – Altman was reinstated as CEO of OpenAI, and the new Board members were hand-picked by him. – Musk alleges that the new Board members lack substantial AI expertise and are ill-equipped to make an independent determination of whether OpenAI has attained AGI. – Musk alleges that OpenAI has been transformed into a closed-source de facto subsidiary of Microsoft, and is developing AGI to maximize profits for Microsoft, rather than for the benefit of humanity.
Page 9

– Musk is concerned about the potential dangers of AI, specifically the possibility of it surpassing human intelligence and threatening humanity. – Musk’s concerns stem from a conversation with Demis Hassabis, the co-founder of DeepMind, in 2012. – Musk has attempted to discuss the dangers of AI with others, such as Larry Page, but has been met with indifference or dismissal. – Musk is filing this case to compel OpenAI to adhere to the Founding Agreement and return to its mission of developing AGI for the benefit of humanity.
Page 10

– Musk is concerned about Google’s acquisition of DeepMind, one of the most advanced AI companies in the industry. – Musk and Luke Nosek attempted to buy DeepMind to prevent it from falling into Google’s hands, but were unsuccessful. – Musk continued to advocate for safe AI practices, even reaching out to President Obama to discuss regulation. – Musk found a potential ally in Sam Altman, the president of Y Combinator, who shared his concerns about AI.
Page 11

– Altman has publicly expressed concerns about artificial general intelligence (AGI) and “superhuman machine intelligence” in blog posts dating back to 2014. – Altman and Musk began drafting an open letter to the US government to call for regulation of AI. – Demis Hassabis, the founder of DeepMind, reached out to Musk after hearing about the letter, but Musk defended the need for regulation. – Shortly after, Hassabis announced the first meeting of the Google DeepMind AI Ethics Board.
Page 12

– Mr. Musk is asked to be a member of the Google DeepMind AI Ethics Board, but quickly realizes it is not a serious endeavor. – The Open Letter is published and signed by over eleven thousand individuals, including Mr. Musk, Stephen Hawking, and Steve Wozniak. – Mr. Altman and Mr. Musk discuss the idea of starting a “Manhattan Project” for AI, with the goal of creating the first general AI. – Mr. Altman proposes a governance structure and Mr. Musk agrees to it. – Mr. Altman recruits Gregory Brockman to help with the project.
Page 13

– Mr. Musk expresses optimism about the possibility of a neutral AI research group focused on humanity rather than profit. – Mr. Musk comes up with the name “Open AI Institute” or “OpenAI” for the new lab. – Mr. Musk is actively involved in the project, advising on compensation packages for employees. – A Certificate of Incorporation for OpenAI, Inc. is filed, which memorializes the Founding Agreement. – The Founding Agreement stipulates that the corporation is organized exclusively for charitable and/or educational purposes, and that no part of the net income or assets will benefit any private person.
Page 14

– OpenAI, Inc. is publicly announced on December 11, 2015. – Mr. Musk, Mr. Altman, and Mr. Brockman are named as co-chairs and CTO, respectively. – The announcement emphasizes that OpenAI is designed to benefit humanity and is free from financial obligations. – Mr. Musk plays a crucial role in getting OpenAI off the ground, focusing on recruiting the best people. – Mr. Musk’s involvement is instrumental in OpenAI’s recruiting efforts, particularly in the face of Google/DeepMind’s counter-recruiting. – Mr. Musk convinces Ilya Sutskever to join OpenAI as Chief Scientist. – Mr. Musk continues to actively recruit for OpenAI, urging the team to go higher in order to get the top talent.
Page 15

– Mr. Musk is heavily invested in OpenAI, contributing over $44 million between 2016 and September 2020. – Mr. Musk also leases OpenAI’s initial office space and pays the monthly rental expenses. – Mr. Altman and Mr. Brockman reaffirm the founding agreement to keep OpenAI as a non-profit.
Page 16
– Mr. Musk stepped down as co-chair of OpenAI in February 2018, but continued to contribute to the organization. – Mr. Altman sent Mr. Musk a draft OpenAI Charter in April 2018, which outlined the organization’s mission to ensure that artificial general intelligence (AGI) benefits all of humanity. – OpenAI announced the creation of a for-profit subsidiary in March 2019, but emphasized that the subsidiary’s primary duty is to the mission of the non-profit. – Mr. Musk requested clarification that he had no financial interest in the for-profit subsidiary, but continued to support the non-profit. – OpenAI licensed certain pre-AGI technology to Microsoft in September 2020, but excluded AGI from the agreement.
Page 17

– OpenAI’s corporate structure has become increasingly complex over time, with multiple entities formed in Delaware. – OpenAI, L.L.C. is the sole member of OpenAI OpCo, LLC, which in turn is the sole member of OpenAI Global, LLC. – OpenAI Global, LLC has two members: Microsoft Corporation and OAI Corporation, LLC. – OAI Corporation, LLC is owned by OpenAI Holdings, LLC, which has multiple members including OpenAI, Inc., Aestas, LLC, and various individual members. – OpenAI, Inc. manages OpenAI, L.P. and OpenAI Global, LLC through its general partner, OpenAI GP, L.L.C. – OpenAI GP, L.L.C. is controlled by the non-profit’s Board of Directors, which has a fiduciary duty to humanity. – OpenAI initially focused on reinforcement learning to play video games, but has since shifted to developing artificial general intelligence (AGI).
Page 18

– OpenAI researchers developed a new model that surpassed the world champion team in a difficult task. – Google’s Transformer algorithm was created to address issues with deep learning in understanding long sequences of text. – OpenAI continued this research and released the Generative Pre-Trained Transformer (GPT) in January 2018. – OpenAI released GPT-2 in 2019, which was able to perform well across many domains and datasets. – OpenAI released the full version of GPT-2 despite concerns about misuse, in order to benefit developers of future models.
Page 19

– OpenAI’s GPT-3 model was released in 2020 and was significantly more powerful than previous models. – Google researchers improved on GPT-3 by introducing chain-of-thought prompting. – OpenAI released GPT-4 in 2023, which surpassed human performance on a variety of tasks. – Microsoft researchers noted that GPT-4 was able to solve difficult tasks across a wide range of domains.
Page 20

– The document discusses the differences between GPT-4 and ChatGPT, noting that GPT-4 is more accurate and reliable. – Microsoft scientists acknowledge that GPT-4 is an early form of artificial general intelligence. – The document alleges that OpenAI breached the Founding Agreement by keeping GPT-4 closed and proprietary, rather than making it available to the public. – The document also discusses a limitation of GPT architecture-based AIs, which is that they cannot “backtrack.”
Page 21

– OpenAI is developing a secretive algorithm called Q* – Concerns have been raised about the potential power of Q* – Q* may be an example of artificial general intelligence (AGI) and outside the scope of OpenAI’s license with Microsoft – OpenAI’s Board determines whether OpenAI has attained AGI – A majority of OpenAI’s Board resigned in November 2023 – Samuel Altman was fired for not being candid with the Board – Gregory Brockman was removed from the Board but retained his role at OpenAI – The Board originally consisted of experts with deep AI policy experience
Page 22

– OpenAI’s Board was designed to prioritize humanity over financial success – Altman’s firing was partly due to OpenAI’s breakthrough in realizing AGI – Brockman left OpenAI with Altman – Microsoft CEO Satya Nadella was furious that he wasn’t consulted about Altman’s firing – Nadella invited Altman and Brockman to lead a new Microsoft AI research lab – Microsoft is confident it can continue OpenAI’s research even if the company ceases to exist
Page 23

– Microsoft never abandoned its plan to reinstate Altman as OpenAI’s CEO – OpenAI’s Board faced pressure from lawyers and shareholders to reinstate Altman – Toner was specifically targeted in efforts to reinstate Altman – A lawyer for OpenAI threatened Toner with claims of breach of fiduciary duty – OpenAI’s Board does not have a fiduciary duty to investors, only to humanity – Toner felt Altman’s removal would advance the company’s mission – Microsoft had substantial coercive power over OpenAI – Microsoft had only paid a fraction of its investment commitment to OpenAI – Altman was reinstated as CEO on November 21
Page 24

– Altman required the resignation of Toner, McCauley, and Sutskever from the Board as a condition of his return – Altman hand-picked a new Board that lacked technical expertise in AI governance – The new Board consisted of members with more experience in profit-centric enterprises or politics – Taylor and Summers were two of the new Board members – Microsoft obtained an observer seat on the Board – OpenAI’s corporate structure collapsed overnight, becoming a purely profit-driven company – The Board is responsible for determining whether OpenAI has attained AGI
Page 25

– OpenAI’s Board has an incentive to delay making a finding that OpenAI has attained AGI in order to keep Microsoft licensed to OpenAI’s latest technology – OpenAI’s conduct could have implications for Silicon Valley and could redefine venture capitalism – OpenAI’s new business model allows investors to receive tax benefits while still profiting from the company’s technology
Page 26

– OpenAI has abandoned its non-profit mission in pursuit of profit – Concerns have been raised by various experts about the implications of OpenAI’s new direction – OpenAI has recently restricted public access to key documents, despite its previous commitment to transparency
Page 27

– Musk is concerned about OpenAI’s recent changes in governance, which may have been made to appease Microsoft and other shareholders – OpenAI is in discussions with Middle Eastern investors, which raises concerns about potential influence from the United Arab Emirates and China – Musk is also concerned about potential conflicts of interest involving OpenAI’s CEO, Samuel Altman – Musk argues that these changes violate the Founding Agreement and pervert OpenAI’s mission
Page 28

– Musk alleges that OpenAI breached the Founding Agreement by transitioning from a non-profit to a for-profit company – Musk argues that OpenAI is no longer open-source and is keeping its technology closed for proprietary reasons – Musk cites the Founding Agreement and various communications between himself and the defendants as evidence
Page 29

– Defendants are accused of breaching the Founding Agreement in multiple ways – One way is by licensing GPT-4 exclusively to Microsoft, which goes against the agreement to develop AGI for the benefit of humanity – Another way is by failing to disclose details on GPT-4’s architecture and by erecting a paywall, which goes against the agreement to make OpenAI’s technology open-source – Lastly, the defendants are accused of allowing Microsoft to exert undue influence over OpenAI’s non-profit activities – Musk is seeking damages and specific performance of the defendants’ contractual obligations
Page 30

– Musk is alleging promissory estoppel against all defendants – He claims that the defendants made false promises in order to induce him to contribute millions of dollars to OpenAI – Specifically, the defendants promised that OpenAI would be a non-profit, open-source organization – Musk claims that he reasonably relied on these promises, only to have OpenAI abandon its non-profit mission and license its technology to Microsoft – Musk is seeking specific enforcement of the defendants’ promises or restitution
Page 31

– Musk alleges that the defendants breached their fiduciary duties to him under California law. – Specifically, Musk claims that the defendants used his contributions for “for-profit” purposes, which goes against the agreement they made. – Musk also alleges that the defendants failed to disclose important information about GPT-4, and put up a paywall to restrict public access. – Finally, Musk claims that Microsoft has been allowed to exert undue influence over OpenAI, Inc.
Page 32

– Musk is seeking damages in excess of $35,000 for the defendants’ alleged breaches of fiduciary duty. – He is also requesting specific performance of the defendants’ contractual obligations. – Musk claims that the defendants engaged in unfair business practices by soliciting donations under false pretenses. – As a result, Musk argues that he and other members of the public have been deceived.
Page 33

– Musk is requesting restitution and/or disgorgement of any and all monies received by the defendants as a result of their unfair business practices. – He is also seeking an injunction to prevent the defendants from engaging in such practices in the future. – Musk is requesting an accounting in order to ascertain his interest in or the use, allocation, or distribution of assets.
Page 34

– Musk is asking for an order compelling the defendants to follow OpenAI’s longstanding practice of making AI research and technology available to the public. – He is also requesting an order prohibiting the defendants from using OpenAI, Inc. for their own financial benefit. – Musk wants a judicial determination that GPT-4 and other OpenAI next generation large language models constitute Artificial General Intelligence and are outside the scope of OpenAI’s license to Microsoft. – He is seeking injunctive relief, restitution, and an accounting of funds donated to OpenAI, Inc. – Musk is also asking for general, compensatory, and punitive damages, as well as attorneys’ fees and interest.
Page 35

– Musk is demanding a jury trial for all issues, claims, and causes of action. – The demand was filed on February 29, 2024 by the law firm IRELL & MANELLA LLP. – ThEle attorneys representing Musk are Morgan Chu, Alan Heinrich, Iian Jablon, Abigail Sellers, Justin Koo, and Henry White.


The lawsuit against OpenAI by Elon Musk underscores a pivotal moment in the evolution of AI governance. As this case progresses, it emphasizes the critical balance between innovation and ethical stewardship in the AI domain. The resolution could potentially redefine the trajectory of AI development, advocating for a model that prioritizes openness, accessibility, and societal benefit. This lawsuit not only reflects a dispute over contractual and ethical commitments but also serves as a bellwether for future debates on the governance of emerging technologies.

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