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Any one of them is enough to find that
OpenAI breached the charitable trust. Now,

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first, they enriched the investors,
Microsoft, and insiders like

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Brockman and apparently quite a few more.
We know Sutskever has now seven billion

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dollar interest, and who knows who else
might have other interests. Um, Professor

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Schizer told you that a basic principle of
the nonprofits is their revenues and

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assets have to be for the benefit of the
nonprofit. And the defendants violated

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that basic principle by entering into this
twenty-twenty deal with Microsoft under

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terms that were unfair to the nonprofit.
It's that simple. All right? The ten

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billion dollar Microsoft investment was
ten times its initial investment.

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At that point, it had invested thirteen
billion dollars, and that totally dwarfed,

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totally dwarfed charitable contributions
and weakened OpenAI in its negotiating

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position with, um, excuse me, with, um,
Microsoft. You remember I asked,

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um,

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Professor Schizer, wh-what if they raise,

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you know,

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the money,

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if they raise the thirteen billion
dollars? But I asked him, wh-what if they

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raised half of it?

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And I don't have the question right in
front of me, but it was a question along

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those lines. And, and the idea is you at
least have some bargaining power there. He

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testified that there are charities in,
in, in this country, in fact, one right up

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the road at Stanford, that can raise
three billion dollars in, in the course of

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a year. He mentioned...

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Um, there we go. He, he mentioned one that
was, as he put it, essentially a sou-

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soup kitchen. I think it was called Feed
America. And he said that they raised over

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four billion dollars a year. Now you
might, you might say, "Well, gee, you

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know,

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Brockman and Altman, you know, how are
they gonna raise that money?" Well, I have

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to tell you, um, Stuart Russell's message

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is so powerful, right?

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The way that AI--

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It, it does create good things. I'm not
saying that it can't create good things.

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It's the way that it can have such a
negative effect

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on our lives. One would think that people
would be knocking down the door to donate

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to an organization that's dedicated to the
safe development as a nonprofit. So I

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don't know what they did. I don't know if
they had firms or evidence that they did

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that, but, um, that was a problem. And,
um, the constraints on the earlier deals,

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the cap

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and the limitations on the IP rights,
those, um, those were gone too.

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Under the terms of the twenty-twenty-three
deal, OpenAI would need to earn roughly

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two hundred and seventy-five billion
dollars in profit,

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excuse me, for the nonprofit to, um,

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receive... Remember, uh,

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Professor Schizer used the term residuals?
There was a, a term residuals. And I- at

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the time he was testifying, I, I, I looked
over and I saw some recognition of his

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faces. There, there were these TRAs, uh,
these are the amounts that, that investors

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would get, including employees, including
the nonprofit, including Microsoft.

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And anything that was paid off, uh, beyond
these target

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redemption amounts, the target amounts
that they would get, would go into the,

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into the nonprofit.

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But in the twenty-twenty-three agreement,

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at--

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when twenty-twenty-five came along, the
residents, excuse me, the residuals

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would become much smaller. And we-- he
showed this because-- And, and by the way,

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he, he did not represent that this was a
dollar for dol-- you know, exactly precise

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calculation. He was showing you what
happens.

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And, and can we just go back to the last
slide? So

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it makes sense, right? That if you're, if
you're getting some amount of money, and

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that would be represented by the blue dots
and well as the blue,

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and then

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everybody else gets more money two years
later, the residuals go up by twenty

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percent,

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you're gonna get a smaller amount for the
residuals. So the nonprofit is getting

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less money.

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And that twenty percent is extraordinary.
I asked Satya Nadella, "Twenty percent?" I

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said,

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"That doubles. That doubles

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in less than four years."

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And, and he agreed. So that was an
extraordinary term and an extraordinary

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give on the part of the nonprofit when
they were negotiating this deal.

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Um, Microsoft also got ri-broad rights to
all of OpenAI's intellectual property up

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to the time that AGI was achieved. It got
the right under this agreement to put

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twenty engineers,

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um,

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and eventually up to ten percent of
OpenAI's engineering population,

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to help Microsoft commercialize,

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um,

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that intellectual property and earn
revenue. And this is the trend that you're

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seeing at this point in time, right? That
they are commercializing OpenAI. It's no

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longer

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a research lab doing safe AI. I mean, uh,
when Sam Altman testified and he said,

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"Oh, these are, you know,

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researchers, and they need a safe
environment to,

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um, do their work, and you can't manage
them like a business." Well,

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um,

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Microsoft, we'll talk about it in a couple
of minutes, was throwing out at them, you

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know, "Hey,

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you know, you gotta make this hundred
million dollar revenue goal if you wanna

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get another investment for us." They were
pushing them for the early release of a

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paid version of ChatGPT, ChatGPT.

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But, um,

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any-- in any event, meanwhile, the
nonprofit raised

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zero,

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zero dollars in twenty twenty-two.

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And at that time,

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OpenAI negotiated a deal with Microsoft.
What leverage do we have?

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Now, the nonprofit received

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five million dollars of donations in
twenty twenty-three, and that's point oh

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00:06:01,320 --> 00:06:05,596
five percent of Microsoft's ten billion
dollar investment.uh, in the OpenAI

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for-profit. The 2023 deal in which
Microsoft

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and all of the OpenAI dependents at the
expense of the nonprofit.

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Let's talk about that enrichment. What was
the enrichment?

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As I mentioned, Greg Brockman,

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uh, never invested a nickel. Not only did
he never invest, he told people he was

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going to invest to try to raise money, as
we saw,

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and promised people he did that with,

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and, um,

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and never invested in it. And he now has a
stake worth $30

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billion. By the way, I thought it was
interesting when I asked Sam Altman,

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he said, "You know, Greg Altman's never
given that hundred thousand dollars."

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He told us, of course, he was good with a
billion dollars, but he ended up with

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thirty billion. Not that a billion dollars
would have been a problem with him. But,

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and I asked Altman, I said, "Doesn't that
bother you? The guy's never given any

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money. He's never..."

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"You know, not really. You know, Greg's
made many contributions." I'm

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paraphrasing. "Greg's made many
contributions to OpenAI." I mean, the

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arrogance,

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the, uh, lack of sensitivity, the failure
to account for

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just kind of decency was really, really
appalling.

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Remember, Brockman's plan from the
beginning

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was

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in his diary, "Okay,

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financially, what will take me to one
billion dollars?

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It would be nice to be making the
billions." We could put this out.

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He said,

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"We've been thinking that maybe

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we should just flip to a for-profit.

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Making the money for us sounds great and
all." That's what he was saying at that

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time.

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Those were Brockman's true thoughts

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as he was discussing a path forward with
Elon. Um, he also enriched himself through

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self-dealing and transactions. You heard
about Cerebras.

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Um, and that was something that he
invested in and made money on. He's held

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equity in, um, in, in, um, in Cerebras for
some period of time. OpenAI gave a ten

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billion dollar deal to

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Cerebras. Um, and he's not only the only
one making those kinds of billions of

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dollars.

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Um, as I mentioned, Ilya Sutskever has a
seven billion dollar,

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uh, stake. I mentioned Joshua Atian, who
testified yesterday with the twenty

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million. And, and Professor Schizer
testified, and this is why they're going

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to bring up this email from early on when
they talked about that people that work

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there can get full startup-like equity,
okay?

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Nothing wrong with people making money.
There's nothing proper wrong with people

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making money, uh, working for a nonprofit,
especially if they're doing work that's

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challenging work that's going to require
people,

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um, from the marketplace to come.

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But Professor Schizer was very clear on
this,

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that just because you're there and you're
doing an important job that might be

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compensated

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at a higher level outside of a nonprofit
doesn't mean that you're entitled to make

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that same amount in a nonprofit.

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He testified that, and he, and he gave the
example,

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universities with large endowments,
Stanford or Berkeley for that matter, you

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know, have these large endowments. Donors,
you know, donate money,

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and the people that manage that money make
quite a lot of money themselves. They're

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investment managers.

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Those same people, if they were working at
a hedge fund, not a nonprofit like

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Stanford or like Berkeley, would, um,
would, would, would be making more.

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Well, they're, they're, they're
compensated well, but they're there in

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part to serve the mission.

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And, you know, here

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it was just completely flipped on its
head.

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Now,

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um, the nonprofit funds

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are supposed to, um, go to advancing the
mission,

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and they're not supposed to make, uh,
their employees and for-profit partners

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Microsoft rich.

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What about Sam Altman?

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Sam Altman, who told the United States
Senate that he has no equity in OpenAI.

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All right? That was a lie, as I said
before.

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And, um, he said that, um,

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he has, you know, admitted in this, uh,
tech, this trial that he has a stake in

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OpenAI through his former company Y
Combinator, which is sort of a company

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that helps

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companies that are starting up.

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And

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he also told you that former board member,
uh, Tasha McCauley, that he intent-

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intended someday to take additional
equity. There's an email that he tells

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Elon the same thing, where he says,
"Someday I may take equity." Now, maybe

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that someday is the day that this trial's
over, or maybe it's some other point down

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in the future. I don't have any evidence
that I can tell you, but I can just tell

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you that what human nature is and what
past behavior often demonstrates as a

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predictor of future performance.

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Um, so you be the judges, but,

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um, Sam Altman has no equity stake. But
what he does have is the ability to, as I

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00:11:10,196 --> 00:11:13,555
asked him in the interview, I said,
"You're the CEO. You have the ability to

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00:11:13,556 --> 00:11:17,236
influence contracts, the business that
they do, business partners that they,

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00:11:17,236 --> 00:11:18,176
that, that they work with."

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And, uh, you heard about his self-dealing
being on both sides of deals between

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00:11:24,476 --> 00:11:30,296
OpenAI and on the one side and companies
that he's invested in on the other. Um,

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00:11:30,296 --> 00:11:33,816
his stake in those companies, there's an
exhibit that lists, um,

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00:11:34,776 --> 00:11:37,456
let me look at this here. What's the,
what's the exhibit number that has the

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00:11:37,456 --> 00:11:41,136
disclosures? It was a, what's called an
interrogatory where they submit, both he

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00:11:41,136 --> 00:11:44,536
and Brockman submitted under oath this
document saying, "These are the businesses

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00:11:44,536 --> 00:11:46,276
that we, uh, have interest in."

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Um, anyway, I'll get it for you in a
minute. But, um, he, so his, so he, we'll

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00:11:51,736 --> 00:11:55,736
produce this to you, but his stake in
Helion Energy, remember he was explaining

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00:11:55,736 --> 00:11:59,316
how Helion, how energy is so important to
this company because

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00:12:00,156 --> 00:12:02,935
they gotta have it compute, and they gotta
have, you know, these computers need to

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00:12:02,936 --> 00:12:07,106
be powered, and that's why you hear all
the stories about energy and, and, and

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00:12:07,836 --> 00:12:12,956
such now. His stake in Helion Energy is
worth one point six five billion

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00:12:12,956 --> 00:12:16,120
dollars.1.6 trillion dollars. And he,

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00:12:17,440 --> 00:12:20,900
w-he was until recently chairman of the
board of directors of Helium.

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00:12:21,760 --> 00:12:25,580
Um, Helium does not have a working product
right now,

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00:12:26,260 --> 00:12:32,000
but it's got a deal with OpenAI that is
sort of a pathway to future transactions

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00:12:32,000 --> 00:12:36,460
once it gets a working product. And
Siobhan Zillis testified that when that

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00:12:36,460 --> 00:12:40,780
deal was announced, it was, quote, "Out of
left field," was a phrase that she used,

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00:12:40,780 --> 00:12:42,240
and it raised concerns to the board.

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00:12:42,880 --> 00:12:47,700
Uh, Sam Altman claims that he recused
himself from the transaction, but he

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00:12:47,700 --> 00:12:48,280
admitted,

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00:12:48,920 --> 00:12:51,700
uh, that he participated in discussions
about that deal.

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00:12:52,660 --> 00:12:56,620
Now, uh, another one of his large-- So he
said, "I'm recused," but yet then he went

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00:12:56,620 --> 00:12:58,720
ahead and negotiated, uh, anyway.

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00:12:59,940 --> 00:13:03,020
I think he gave the ex-the excuse that he
didn't really know what was going on or

215
00:13:03,020 --> 00:13:07,440
something like that. Well, that's why we
don't allow people with conflicts to be

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00:13:07,440 --> 00:13:11,940
part of negotiations. Another large
investment he had was in Reddit.

217
00:13:12,660 --> 00:13:13,760
Um, you may know Reddit,

218
00:13:14,400 --> 00:13:18,460
uh, from the internet. Um, it's a social
media company. In twenty twenty-four,

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00:13:19,100 --> 00:13:23,160
uh, Altman shares in Reddit were worth
about eight hundred million dollars.

220
00:13:24,100 --> 00:13:26,220
Um, he admitted there was an obvious
conflict

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00:13:26,820 --> 00:13:32,710
when, um-- between his Reddit investment
and his, um, position at OpenAI, the CEO

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00:13:32,710 --> 00:13:35,360
of O-OpenAI, because they did a deal
together.

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00:13:36,060 --> 00:13:40,960
And it didn't stop him from negotiating
both sides of that deal. And the story

224
00:13:40,960 --> 00:13:44,240
that we heard was, well, there was some
litigation or threat of litigation. The

225
00:13:44,240 --> 00:13:47,340
thought would be that I would be the
person that could solve it. He has a

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00:13:47,340 --> 00:13:49,940
fiduciary duty to act for

227
00:13:50,900 --> 00:13:56,160
OpenAI, the nonprofit, act in their best
interest, not in Sam Altman's personal

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00:13:56,160 --> 00:13:57,760
interest, nor in Reddit's best interest.

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00:13:58,420 --> 00:14:01,700
And Professor Schizer, under the terms of
the deal that they have, by the way, it's

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00:14:01,700 --> 00:14:05,480
two hundred million dollars between OpenAI
and Reddit. Professor Schizer explained

231
00:14:05,480 --> 00:14:08,680
that these conflicts of interest like
this, these are a problem because a

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00:14:08,680 --> 00:14:12,950
nonprofit's executives and board members
have this duty of loyalty. Do you remember

233
00:14:12,950 --> 00:14:17,120
he talked about duty of loyalty? There
was a chart that had three bans on it.

234
00:14:17,120 --> 00:14:20,880
Duty of loyalty was one of them. And that
means they need, they need to focus on the

235
00:14:20,880 --> 00:14:21,750
nonprofit's business.

236
00:14:22,620 --> 00:14:28,320
In addition to negotiating with both
sides, uh, he also, um, had this OpenAI

237
00:14:28,320 --> 00:14:33,390
startup fund that he didn't tell the board
about. And, um, we heard the testimony of

238
00:14:33,390 --> 00:14:35,210
the company's one director who said they
were surprised to

239
00:14:36,040 --> 00:14:41,520
learn about this. OpenAI, um, also now has
converted to a public benefit

240
00:14:41,520 --> 00:14:45,520
corporation. We'll hear a lot about that.
It was in twenty twenty-five and is

241
00:14:45,520 --> 00:14:49,630
exploring something called an initial
public offering, which is where a company

242
00:14:49,630 --> 00:14:50,280
can sell stock,

243
00:14:50,920 --> 00:14:55,080
um, and sell shares to the investing
public. The PBC,

244
00:14:55,920 --> 00:15:00,820
which it's now converting, there's no
caps, no caps on investors and

245
00:15:00,820 --> 00:15:02,000
distributions made in the PBC.

246
00:15:04,220 --> 00:15:05,900
No caps to the investors'

247
00:15:06,740 --> 00:15:08,620
payments under the, uh, PBC.

248
00:15:09,960 --> 00:15:14,690
Um, second, OpenAI failed to fulfill its
mission to open source technology.

249
00:15:14,690 --> 00:15:16,460
Remember, that was something that was
important.

250
00:15:17,260 --> 00:15:18,060
And, um,

251
00:15:19,040 --> 00:15:24,880
by twenty twenty-three, that went out the
window. Um, OpenAI did give Microsoft

252
00:15:24,880 --> 00:15:28,420
interest in commercializing product, okay?

253
00:15:29,240 --> 00:15:33,940
Giving Microsoft these IP rights, the
know-how. What if Microsoft, uh--

254
00:15:33,940 --> 00:15:37,740
M-Microsoft had this huge stake, and you
heard, you heard Mira Murati. She was one

255
00:15:37,740 --> 00:15:40,200
of the witnesses that testified by, um,

256
00:15:40,940 --> 00:15:41,980
deposition in, in--

257
00:15:42,720 --> 00:15:46,140
And by the way, I don't remember what the
judge's instructions said this, but I

258
00:15:46,140 --> 00:15:49,200
couldn't make those people come over
because they live too far away here from

259
00:15:49,200 --> 00:15:54,040
us. But I can rotate their deposition and
have them testify by video. I apologize

260
00:15:54,040 --> 00:15:57,240
for that because I know it's not always
the most interesting, but they came and

261
00:15:57,240 --> 00:16:00,540
gave truthful testimony, and that's what
you heard. It's just the same as if

262
00:16:00,540 --> 00:16:05,260
someone-- um, a witness there. And, and
she was the point person on OpenAI's

263
00:16:05,260 --> 00:16:10,059
relationship with Microsoft, and she
testified that OpenAI agreed to give

264
00:16:10,060 --> 00:16:11,280
Microsoft six months

265
00:16:11,900 --> 00:16:17,340
or one year of exclusivity on GPT language
products. That's a big deal when it's a

266
00:16:17,340 --> 00:16:19,420
new technology being developed like that.

267
00:16:20,560 --> 00:16:24,160
So the failure to open source breached the
mission. And then on safety,

268
00:16:24,760 --> 00:16:29,800
OpenAI failed, uh, it breached the mission
as well too. It was clear from Satya

269
00:16:29,800 --> 00:16:34,900
Nadella's testimony that in early twenty
twenty-three, OpenAI was pressured by

270
00:16:34,900 --> 00:16:36,760
Microsoft to release

271
00:16:37,480 --> 00:16:39,240
a version, a paid version

272
00:16:40,060 --> 00:16:44,380
of ChatGPT. You'll recall I showed him
before the end of his testimony,

273
00:16:45,000 --> 00:16:50,840
three text messages between Satya Nadella
and, and Sam Altman. And these are

274
00:16:50,840 --> 00:16:54,660
exhibits two sixty-nine, two seventy, and
two seventy-two, and again, you'll have

275
00:16:54,660 --> 00:16:54,920
these.

276
00:16:55,760 --> 00:16:59,340
In exhibit two seventy, he says, "The
sooner, the better for getting paid

277
00:16:59,340 --> 00:17:00,780
ChatGPT set up."

278
00:17:01,560 --> 00:17:06,940
Um, and so he's clearly pressuring Altman.
And it's common sense that speed,

279
00:17:07,660 --> 00:17:08,940
speed doesn't equal safety.

280
00:17:09,860 --> 00:17:14,880
Um, as Professor Schizer explained,
there's often a tension between profit

281
00:17:14,880 --> 00:17:19,580
maximization in a, in a for-profit
subsidiary and adherence to the mission,

282
00:17:19,580 --> 00:17:20,620
loyalty to the mission,

283
00:17:21,220 --> 00:17:22,200
service to the mission.

284
00:17:24,660 --> 00:17:26,240
We saw how it played out here,

285
00:17:27,200 --> 00:17:27,360
uh,

286
00:17:28,080 --> 00:17:29,820
in the testimony of Helen Toner

287
00:17:30,460 --> 00:17:34,600
and Tasha McCauley. Those were two other
witnesses who testified by video. You

288
00:17:34,600 --> 00:17:37,560
might remember they were both directors of
the company.

289
00:17:38,520 --> 00:17:41,620
And, um, they testified

290
00:17:42,520 --> 00:17:45,199
that, that, that Sam Altman lied to them,

291
00:17:45,880 --> 00:17:51,360
and both Toner and McCauley testified that
it was related to, uh, pushing

292
00:17:52,040 --> 00:17:56,670
for commercialization that led to the
concerns then for safety.

293
00:17:58,000 --> 00:17:59,520
Concerns for safety.

294
00:18:00,340 --> 00:18:03,860
Uh, you also heard testimony from Rosie
Campbell. Remember, that was a woman who

295
00:18:03,860 --> 00:18:10,540
came and testified toward the end of our
case. And, um, she testified that, uh,

296
00:18:10,540 --> 00:18:14,350
safety took a back seat at the end of her
tenure in twenty three-- excuse me, twenty

297
00:18:14,350 --> 00:18:18,930
twenty-three and twenty twenty-four.Um,
and then OpenAI put up a, a whole bunch of

298
00:18:18,930 --> 00:18:22,780
witnesses then at, at the end of the
trial to say that, "Oh, everything's fine

299
00:18:22,780 --> 00:18:26,740
today." Well, that's not good enough,
right? It's not good enough.

300
00:18:27,540 --> 00:18:30,370
We don't know whether it's fine or not. We
didn't really have a trial on whether it

301
00:18:30,370 --> 00:18:30,880
was fine.

302
00:18:31,540 --> 00:18:32,820
We heard the witnesses say that,

303
00:18:33,520 --> 00:18:37,300
and the question is: what was it like in
2023 when they were in breach?

304
00:18:39,100 --> 00:18:40,940
Don't let that distract you

305
00:18:41,620 --> 00:18:43,600
from all of the safety failures that
occurred.

306
00:18:48,940 --> 00:18:53,720
Recall all of those witnesses who
testified. There were several. There was

307
00:18:53,720 --> 00:18:55,490
Satya Nadella at Microsoft, including,

308
00:18:56,180 --> 00:18:56,440
um,

309
00:18:57,380 --> 00:19:00,840
the, um, the chairman of the nonprofit,

310
00:19:01,480 --> 00:19:03,310
um, Nat, uh, Taylor.

311
00:19:04,760 --> 00:19:08,870
They testified on cross-examination, not
when it wasn't by their side, testified on

312
00:19:08,870 --> 00:19:14,910
cross-examination that the OpenAI
nonprofit was a nutshell for many

313
00:19:14,910 --> 00:19:17,170
years. In November,

314
00:19:17,960 --> 00:19:20,499
uh, Michael Wetter, who testified
yesterday,

315
00:19:21,160 --> 00:19:26,120
was, uh, deposed. He was a sworn statement
taken under oath, you know, where lawyers

316
00:19:26,120 --> 00:19:28,000
get to question. He was deposed,

317
00:19:29,020 --> 00:19:32,340
uh, as the corporate representative of
Microsoft,

318
00:19:33,200 --> 00:19:35,060
and, um, he

319
00:19:36,960 --> 00:19:41,270
knew as well as the, the, the corporate
representative of... Excuse me, I

320
00:19:41,270 --> 00:19:41,640
misspoke.

321
00:19:42,690 --> 00:19:45,880
The corporate representative from OpenAI

322
00:19:47,020 --> 00:19:49,120
was deposed in November,

323
00:19:49,180 --> 00:19:49,920
testifying,

324
00:19:50,620 --> 00:19:52,660
and you saw the testimony under petition.

325
00:19:54,160 --> 00:19:55,550
No full-time employment.

326
00:19:57,040 --> 00:20:00,500
So they're jumping up and down saying,
"Oh, this is the richest nonprofit. It's

327
00:20:00,500 --> 00:20:01,760
this great thing.

328
00:20:03,060 --> 00:20:05,280
It's we- we're doing these wonderful
works."

329
00:20:06,420 --> 00:20:10,940
They had no full-time employees. They only
hired full-time employees about a month

330
00:20:10,940 --> 00:20:13,010
before this trial started, believe it was
six weeks.

331
00:20:14,380 --> 00:20:15,060
What does that tell you?

332
00:20:15,780 --> 00:20:19,940
What kind of people do that? What is, what
is their priority?

333
00:20:21,040 --> 00:20:24,180
They claim, "Well, it's the mission." They
say, "Oh, well, we didn't have liquid

334
00:20:24,180 --> 00:20:24,519
money."

335
00:20:27,180 --> 00:20:30,060
I think it was all that I asked, I'm not
sure, but I did ask the question:

336
00:20:30,700 --> 00:20:32,280
Couldn't you borrow against the asset?

337
00:20:32,920 --> 00:20:36,320
Could-- If you have this asset, you know,
and, and, and you, and for whatever

338
00:20:36,320 --> 00:20:39,280
reason, you can't sell it or there'd be
not an opportunity to sell it, it's worth

339
00:20:39,280 --> 00:20:42,900
all this money. Couldn't you borrow some
money so you could actually do the work?

340
00:20:42,900 --> 00:20:46,720
And what are they doing? They're doing
work that's making grants. They're not

341
00:20:46,720 --> 00:20:47,619
doing

342
00:20:47,680 --> 00:20:48,420
developing,

343
00:20:49,060 --> 00:20:50,380
you know, AI

344
00:20:52,300 --> 00:20:57,059
safely for the good of mankind and, you
know, making it open source with fact.

345
00:20:57,060 --> 00:20:59,140
Well, they're not doing that.

346
00:21:01,100 --> 00:21:01,980
Yeah, it has money.

347
00:21:03,720 --> 00:21:05,260
How much money you think it might have

348
00:21:06,100 --> 00:21:09,860
if they didn't breach the charitable
trust? If they did what they were supposed

349
00:21:09,860 --> 00:21:12,840
to do, if they went out and raised the
money, if they didn't give away the store

350
00:21:12,840 --> 00:21:13,470
to Microsoft,

351
00:21:14,080 --> 00:21:20,340
it would have even more money. And hearing
Stuart Russell talk about the risk of AI,

352
00:21:20,340 --> 00:21:23,120
God, I wish they would've done that.

353
00:21:23,820 --> 00:21:25,740
God, I wish they would've done that. I
wish they would've had

354
00:21:26,440 --> 00:21:32,140
a nonprofit with billions and billions and
billions of more dollars because the risk

355
00:21:32,140 --> 00:21:33,860
is so high to us. But instead,

356
00:21:34,620 --> 00:21:38,860
they're gonna trumpet the fact that, "Oh,
we have two hundred billion dollars." If

357
00:21:38,860 --> 00:21:40,020
you go and rob a bank

358
00:21:40,700 --> 00:21:42,740
and you take a million dollars from the
bank,

359
00:21:43,560 --> 00:21:47,600
it's not a defense to say, "Oh, I left,
you know, a hundred million dollars in the

360
00:21:47,600 --> 00:21:49,220
bank. I only took, you know, a million."

361
00:21:50,460 --> 00:21:51,680
And that's essentially what they're
saying.

362
00:21:52,900 --> 00:21:54,140
So I think that whole

363
00:21:54,940 --> 00:21:58,280
argument and the testimony you heard is
nothing more than a farce.

364
00:22:02,880 --> 00:22:03,760
You might recall that

365
00:22:05,020 --> 00:22:06,340
Sam Altman's, uh,

366
00:22:07,600 --> 00:22:11,520
pod-- uh, the, um, or podcast interview
that I, that I played.

367
00:22:13,360 --> 00:22:14,780
They had governance

368
00:22:15,880 --> 00:22:19,620
in place. The nonprofit board, right, is
supposed to oversee the for-profit.

369
00:22:20,620 --> 00:22:23,400
It was interesting 'cause that's still the
case in this governance situation you

370
00:22:23,400 --> 00:22:26,360
have. You remember when I asked him the
question, "You know, you sit on the

371
00:22:26,360 --> 00:22:30,540
nonprofit board. Nonprofit board governs a
for-profit board. Um,

372
00:22:32,300 --> 00:22:36,740
and that nonprofit board is supposed to,
you know, provide the safety." And I asked

373
00:22:36,740 --> 00:22:39,800
him, "You know, are you the CEO of both
places and you're on the board of both

374
00:22:39,800 --> 00:22:41,480
places? Would you fire yourself?"

375
00:22:42,180 --> 00:22:46,680
Sounds like a silly question, but it's not
a silly question. It's a very pertinent,

376
00:22:46,680 --> 00:22:47,600
important question

377
00:22:48,360 --> 00:22:52,940
because that nonprofit board is supposed
to oversee the profit from the board. And,

378
00:22:52,940 --> 00:22:56,960
and of course, he wouldn't fire himself.
He dissembled like he, he has in other,

379
00:22:56,960 --> 00:22:59,180
other, you know, instances, trying to
dissemble,

380
00:22:59,900 --> 00:23:04,240
um, wh-when, you know, he didn't really
answer my question. We went back and forth

381
00:23:04,240 --> 00:23:05,360
a couple of times, but, you know,

382
00:23:05,980 --> 00:23:06,340
it, it's--

383
00:23:07,360 --> 00:23:08,420
there's no governance there

384
00:23:09,260 --> 00:23:10,900
that's meaningful. And you know how we
know, too?

385
00:23:11,520 --> 00:23:12,080
Because

386
00:23:12,740 --> 00:23:16,560
that's what the nonprofit board had in
twenty twenty-three, right? The, the

387
00:23:16,560 --> 00:23:18,420
ability to hire and fire the CEO.

388
00:23:19,540 --> 00:23:20,160
And what did they do?

389
00:23:21,260 --> 00:23:21,810
They fired

390
00:23:22,580 --> 00:23:23,180
the CEO,

391
00:23:24,780 --> 00:23:25,600
but then they rehired him,

392
00:23:26,860 --> 00:23:27,720
and they fired him

393
00:23:28,500 --> 00:23:29,040
for lying,

394
00:23:30,100 --> 00:23:34,380
and not only for lying, but lying about
safety issues. Safety issues.

395
00:23:35,280 --> 00:23:35,930
Is that governance?

396
00:23:37,700 --> 00:23:41,060
He admitted, he admitted in that tape that
I played

397
00:23:41,840 --> 00:23:42,030
that,

398
00:23:42,660 --> 00:23:48,040
these were his words, not mine, "Although
the board had the legal authority to fire

399
00:23:48,040 --> 00:23:48,200
me,

400
00:23:48,900 --> 00:23:49,700
in practice,

401
00:23:50,520 --> 00:23:51,680
it didn't quite work,

402
00:23:52,880 --> 00:23:56,920
and that is its own kind of governance
failure."

403
00:23:57,600 --> 00:23:58,480
He admitted that.

404
00:24:00,900 --> 00:24:03,720
I don't know if he thought that that would
someday be played in court.

405
00:24:06,100 --> 00:24:07,360
Maybe it was an honest thought.

406
00:24:09,260 --> 00:24:11,390
Now, Professor Schizer explained that
management,

407
00:24:12,080 --> 00:24:17,720
and in particular the CEO, has to be
honest and forthright and forthcoming and

408
00:24:17,720 --> 00:24:20,820
candid with the board.Satya Nadella

409
00:24:21,500 --> 00:24:24,620
testified to the same thing. You remember
I asked him,

410
00:24:25,320 --> 00:24:26,040
um, about

411
00:24:26,840 --> 00:24:30,700
if he had a senior executive that was
dishonest and not providing information?

412
00:24:31,360 --> 00:24:35,819
And, and he said, "No, I'd fire him." And,
and I asked him a, a, a question that was

413
00:24:35,819 --> 00:24:38,720
along these lines, and I could reword,
reword it a little bit, it was like, "And,

414
00:24:38,720 --> 00:24:42,300
and he'd get him out of the building that
day?" And, and he agreed with me. He was

415
00:24:42,300 --> 00:24:44,190
very fast on his answer that, "Yeah, I'd
fire him."

416
00:24:45,260 --> 00:24:47,980
And you heard the same thing from Brett
Taylor,

417
00:24:48,760 --> 00:24:54,340
the current, um, chair of the nonprofit,
and then Zyko Coulter, who was the safety

418
00:24:54,340 --> 00:24:54,660
guy.

419
00:24:55,380 --> 00:24:57,700
Three of them all said that 'cause it
makes, it's common sense.

420
00:24:58,640 --> 00:25:02,360
It's common sense. Of course you would
fire somebody. What did they do?

421
00:25:03,360 --> 00:25:07,320
They had a CEO who was not providing
information, who was deceiving them on

422
00:25:07,320 --> 00:25:07,920
safety.

423
00:25:10,080 --> 00:25:11,320
They fired him and they brought him back.

424
00:25:13,140 --> 00:25:18,100
So having that right today is meaningless.
It really is. It's not about the

425
00:25:18,100 --> 00:25:23,360
contract. It's not about what the, what
the co- what, what is in that document.

426
00:25:23,360 --> 00:25:27,420
It's about how it's carried out, and we
saw how it was carried out. We saw what

427
00:25:27,420 --> 00:25:29,760
they think, we saw what they care about.
They're motivated,

428
00:25:30,380 --> 00:25:33,220
and they're motivated by money. Microsoft
and

429
00:25:35,000 --> 00:25:36,140
Altman documents.

430
00:25:38,080 --> 00:25:42,040
So in about eight minutes, it will have
been two hours for the jury-

431
00:25:42,040 --> 00:25:42,820
-Okay
-... so-

432
00:25:42,820 --> 00:25:45,350
-Okay
-... you should stop at a-

433
00:25:45,350 --> 00:25:46,900
-Um-
-... at a convenient spot.

434
00:25:46,900 --> 00:25:47,100
Okay.

435
00:25:47,900 --> 00:25:50,540
Why don't we stop right now then, if
that's okay? I mean, I, I wanna, I have a

436
00:25:50,540 --> 00:25:54,920
little bit more that I wanna do, but, uh,
if we can stop now, um, to take a break.

437
00:25:56,120 --> 00:25:58,820
-Is that all right?
-We'll stand in recess with the jury for 15

438
00:25:58,820 --> 00:25:59,640
minutes. Okay.

439
00:26:00,740 --> 00:26:01,820
Please rise for the jury.

440
00:26:23,540 --> 00:26:25,760
E- either way, you can, you can leave it
there

441
00:26:27,280 --> 00:26:28,900
and then take it later. Doesn't

442
00:26:28,900 --> 00:26:38,680
matter.

443
00:26:38,680 --> 00:26:42,840
Just so that, um, just so I can manage
time, Mr. Mullow, what do you have?

444
00:26:43,540 --> 00:26:44,900
-How much time do you have?
-Um,

445
00:26:45,800 --> 00:26:46,880
for this?

446
00:26:51,200 --> 00:26:52,400
-Oh.
-Less time.

447
00:26:56,560 --> 00:26:58,100
All right. Well then we shouldn't have
broke.

448
00:26:58,920 --> 00:26:59,040
Okay.

449
00:26:59,720 --> 00:27:03,480
Then we should have finished your piece to
then take a break.

450
00:27:07,940 --> 00:27:09,480
No, I just didn't... I, I didn't...

451
00:27:10,340 --> 00:27:11,750
You've given me a lot of paper,

452
00:27:12,940 --> 00:27:16,240
and so I thought perhaps you had another
45 minutes.

453
00:27:18,720 --> 00:27:19,020
All right.

454
00:27:21,060 --> 00:27:23,520
So we'll just have a couple minute
transition.

455
00:27:24,280 --> 00:27:24,380
Uh,

456
00:27:26,420 --> 00:27:27,120
all right, go ahead.

457
00:27:30,900 --> 00:27:35,280
Transcript page 59 at 9:50 AM, Mr. Mullow
told the jury that, um,

458
00:27:36,340 --> 00:27:41,460
page 59, 9:50 AM, Mr. Mullow told the jury
that we are not asking for money.

459
00:27:41,460 --> 00:27:43,860
-I heard that.
-Um, and I'm troubled by that. I think

460
00:27:43,860 --> 00:27:48,420
that's not true. I think it's not legally
possible, and I thought it was off limits,

461
00:27:48,420 --> 00:27:48,980
and I

462
00:27:50,540 --> 00:27:51,950
wanted to call to the court's attention,

463
00:27:52,730 --> 00:27:55,780
uh, insofar as we think it's, um,
prejudicial and unfair.

464
00:27:59,680 --> 00:27:59,790
I, I,

465
00:28:00,560 --> 00:28:04,240
-could you please what you just said?
-You said that you told the jury that you

466
00:28:04,240 --> 00:28:05,600
are not asking for money,

467
00:28:06,620 --> 00:28:08,100
-and it-
-Oh, I did, I did say something along those

468
00:28:08,100 --> 00:28:10,200
-lines, yes.
-You said that explicitly.

469
00:28:10,200 --> 00:28:13,280
-Yes, yes.
-And that is actually not true.

470
00:28:13,280 --> 00:28:17,480
-But we're not asking them for money.
-You are asking them for... You are asking

471
00:28:17,480 --> 00:28:18,760
for money in this lawsuit.

472
00:28:19,700 --> 00:28:24,400
Otherwise, I will not be having an
evidentiary hearing on Monday for billions

473
00:28:24,400 --> 00:28:28,380
-of dollars of disgorgement.
-We're not asking money for ourselves.

474
00:28:28,380 --> 00:28:33,460
It, no, you, you and I have a disagreement
about what and whether you can do.

475
00:28:34,290 --> 00:28:36,540
-Okay.
-You need to retract that statement-

476
00:28:36,540 --> 00:28:36,800
-Okay
-...

477
00:28:38,780 --> 00:28:39,900
or you need to, um,

478
00:28:41,020 --> 00:28:46,710
drop your claim for billions of dollars
and drop your claims for, uh,

479
00:28:47,560 --> 00:28:50,940
-all the other phase two litigation.
-Okay.

480
00:28:52,220 --> 00:28:56,040
-So you'll clean it up.
-But it is a cleanup. I mean, that's what

481
00:28:56,040 --> 00:29:00,480
I, I, I mean, I just want you to know that
was where that came from with me. So I

482
00:29:00,480 --> 00:29:02,500
appreciate it. I will, I will take care of
it.

483
00:29:02,500 --> 00:29:05,460
But, Your Honor, I don't, I don't wanna
belabor this, but it's, it's not a minor

484
00:29:05,460 --> 00:29:09,620
issue. It's something we spent a long time
on and it, a claim for restitution is

485
00:29:09,620 --> 00:29:11,440
-exactly a claim for money, and-
-I-

486
00:29:12,180 --> 00:29:13,280
-And, and-
-So what, what-

487
00:29:13,920 --> 00:29:18,360
In addition, uh, we'd like the ability to
at least make, address this issue briefly

488
00:29:18,360 --> 00:29:22,580
in our argument as well by way of, um,
response. I said one sentence.

489
00:29:22,580 --> 00:29:24,460
It was, it was, uh,

490
00:29:25,600 --> 00:29:27,440
uh... What did you say about the bank
robbery?

491
00:29:28,720 --> 00:29:30,420
One sentence could be a lot.

492
00:29:32,520 --> 00:29:35,440
-I don't think that one was, but-
-I, I disagree.

493
00:29:36,300 --> 00:29:39,020
-You slipped it in nicely.
-I will, I will say

494
00:29:40,880 --> 00:29:43,660
-I take that as a compliment. [laughs]
-I, I don't know. I mean-

495
00:29:43,660 --> 00:29:46,270
It wasn't, it wasn't an attempt to slip
anything in. It was in the moment-

496
00:29:46,270 --> 00:29:48,620
It was substantially contrary to something
that we've talked about

497
00:29:49,720 --> 00:29:52,200
... so. Sure. I'm s- I, I, I will say
that...

498
00:29:52,920 --> 00:29:53,280
I'm sorry.

499
00:29:54,100 --> 00:29:56,940
I, I was in the moment. I said what I
said. I will correct it.

500
00:29:57,880 --> 00:29:58,340
I will correct it.

501
00:29:59,140 --> 00:30:01,480
We'll hear the correction, and then I'll
let you know.

502
00:30:01,480 --> 00:30:03,660
-Thank you, Your Honor.
-All right. You've got, uh,

503
00:30:04,440 --> 00:30:05,180
11 minutes.

504
00:30:06,260 --> 00:30:10,660
May I have lead counsels come up please
for the certifications? I need lead

505
00:30:10,660 --> 00:30:11,680
counsels to sign.

506
00:30:14,160 --> 00:30:18,460
On the exhibits, I need partners to sign
this, not associates.

507
00:30:19,860 --> 00:30:21,310
He said he needs lead counsel to sign the

508
00:30:23,632 --> 00:30:26,552
Just that he needs to leave council to
sign certifications.

509
00:30:27,592 --> 00:30:31,172
Only because.

510
00:30:37,432 --> 00:30:42,092
What do we want to do about, what do we
want to do about this sound that? It

511
00:30:48,932 --> 00:30:52,812
sounds like it's like mumble. It's like
low.

512
00:30:54,352 --> 00:30:56,892
My question is, when he speaks, it

513
00:30:58,652 --> 00:31:00,352
sounds like, you know,

514
00:31:01,512 --> 00:31:03,832
like mumble. Like, there's no
articulation.

515
00:31:04,572 --> 00:31:11,552
-It's like too low a mumble.
-Yeah. Yeah. Oh, sorry. Make it a

516
00:31:11,552 --> 00:31:16,432
little louder. You're not taking a lot of
the location. But we may not have a party

517
00:31:16,432 --> 00:31:16,732
in these.

518
00:31:21,862 --> 00:31:25,732
-Thank you.
-Thank you. Let's do the sign language.

519
00:31:25,732 --> 00:31:30,392
-Nothing.
-Thank you.

520
00:31:35,152 --> 00:31:37,432
Is there anything else you need us to
sign?

521
00:31:37,432 --> 00:31:39,372
-That's it. Thank you.
-Okay. Good. That's it.

522
00:31:40,492 --> 00:31:47,222
For the plaintiff, I mean, Mr.

523
00:31:47,222 --> 00:31:48,432
Molnar. Okay.

524
00:31:49,252 --> 00:31:50,972
-Oh, about who said-
-Or...

525
00:31:53,812 --> 00:31:57,232
Okay. Um, so it needs to sign it. Can I
bring it back?

526
00:32:14,612 --> 00:32:15,052
I

527
00:32:20,552 --> 00:32:21,792
can turn the screen now.

528
00:32:22,572 --> 00:32:23,452
Have you been using it?

529
00:32:24,652 --> 00:32:25,332
Turn with.

530
00:32:26,372 --> 00:32:28,272
Towards Mr. Savitt for the counsel.

531
00:32:29,892 --> 00:32:31,152
The question, though.

532
00:32:54,152 --> 00:33:05,052
Yeah.

533
00:33:05,052 --> 00:33:06,852
All right.

534
00:33:07,532 --> 00:33:10,812
-Thank you.
-Thank you.

535
00:33:10,812 --> 00:33:12,752
That was cool.

536
00:33:14,432 --> 00:33:15,332
Thank

537
00:33:15,332 --> 00:33:41,561
you.

538
00:33:41,561 --> 00:33:44,572
Sorry. You're welcome.

539
00:33:44,572 --> 00:36:23,472
[clears throat]

540
00:36:35,162 --> 00:36:36,942
Yeah, we can use that. But we're gonna
turn the podium

541
00:36:37,622 --> 00:36:38,282
toward the screen.

542
00:36:48,402 --> 00:39:04,661
[background noise]

543
00:39:04,661 --> 00:39:07,502
No, that's famous.

544
00:39:27,022 --> 00:40:16,522
[background noise]

545
00:40:16,522 --> 00:40:22,872
We're gonna

546
00:40:22,872 --> 00:40:27,462
have to

547
00:40:27,462 --> 00:40:39,532
[background noise]

548
00:40:39,532 --> 00:40:39,532
.

549
00:40:40,692 --> 00:42:06,782
[background noise]

550
00:42:07,712 --> 00:42:09,182
I'm sorry. Yeah.

551
00:42:38,322 --> 00:42:38,392
[background noise]

552
00:42:48,252 --> 00:42:53,672
-Court is back in session
-All right, folks, settle down

553
00:42:53,672 --> 00:42:55,152
-I copy
-Let's call in the jury

554
00:43:01,312 --> 00:43:08,272
Hey, what I was gonna suggest

555
00:43:08,272 --> 00:43:11,292
that I say, I hope this is okay because
that's why I'm previewing it with you,

556
00:43:11,932 --> 00:43:16,902
is that, um, I made a statement that, um,
that we're not asking for money,

557
00:43:17,732 --> 00:43:22,632
that the verdict form will not ask you for
money, but that money is implicated in

558
00:43:22,632 --> 00:43:24,002
the case. I think that's--

559
00:43:24,912 --> 00:43:26,472
Given the one statement that I made

560
00:43:28,832 --> 00:43:32,432
Your Honor, we strongly feel that it would
be safer and preferable for the court to

561
00:43:32,432 --> 00:43:36,632
give the instruction because we fear there
is a risk of real confusion and further

562
00:43:36,632 --> 00:43:39,071
damage to the process if it's left to
counsel.

563
00:43:40,892 --> 00:43:42,792
-All right, I'm gonna say that.
-Okay.

564
00:43:44,132 --> 00:43:45,132
Let's-- We'll call 'em in.

565
00:43:46,712 --> 00:43:49,912
And one of the things, Judge, you had said
I'd been going almost two hours.

566
00:43:49,912 --> 00:43:52,512
According to at least our clock, it was
nine-oh-two.

567
00:43:52,512 --> 00:43:55,172
The jur-- I said the jury has been sitting
there-

568
00:43:55,172 --> 00:43:56,632
-Oh
-... for almost two hours.

569
00:43:56,632 --> 00:43:58,752
-Okay.
-They started at eight thirty.

570
00:43:58,752 --> 00:43:58,952
Okay.

571
00:43:59,672 --> 00:44:12,572
[clears throat]

572
00:44:12,572 --> 00:44:17,772
Oh,

573
00:44:17,772 --> 00:44:20,152
one, two, three.

574
00:44:21,832 --> 00:44:22,642
One, two, three. One, two, three.

575
00:44:24,152 --> 00:44:27,912
Well, I just, um, we, we seem to be, uh...

576
00:44:30,652 --> 00:44:30,852
Yeah.

577
00:44:32,052 --> 00:44:34,142
Okay. Well.

578
00:45:19,512 --> 00:45:22,532
-Okay.
-Okay, we're testing the mics. You may all

579
00:45:22,532 --> 00:45:23,052
be seated.

580
00:45:23,912 --> 00:45:24,872
Testing, testing.

581
00:45:31,252 --> 00:45:37,172
Is that working for you? Great. Okay. So
before, um, Mr. Mullow finishes off here,

582
00:45:37,172 --> 00:45:43,652
I do want to, uh, make sure that one thing
is, is clear. He made a statement, uh, in

583
00:45:43,652 --> 00:45:47,252
his earlier remarks that they were not
asking for money.

584
00:45:47,992 --> 00:45:50,452
The verdict form will not have, um,

585
00:45:51,152 --> 00:45:56,832
a, a line for money, but money is in fact
implicated in this case. Okay? So

586
00:45:57,672 --> 00:46:00,952
just wanna make sure everybody's clear
about that. Go ahead, Mr. Mullow.

587
00:46:06,282 --> 00:46:09,382
-[echoing]
-Right there. Mr. Mullow, can you move that

588
00:46:09,382 --> 00:46:12,812
mic over to the side so we don't have
feedback? Thank you.

589
00:46:13,421 --> 00:46:14,312
Proceed when you're ready.

590
00:46:15,972 --> 00:46:17,812
You'll see the verdict form when you get
the verdict form.

591
00:46:18,432 --> 00:46:20,592
So we'll give the instructions. Um,

592
00:46:21,392 --> 00:46:21,612
so

593
00:46:24,892 --> 00:46:29,752
basically, we've covered the idea of, you
know, what the evidence related to the, to

594
00:46:29,752 --> 00:46:29,892
the

595
00:46:30,492 --> 00:46:32,532
breach of, um, charitable trust claim.

596
00:46:33,332 --> 00:46:33,462
Um,

597
00:46:35,232 --> 00:46:39,592
twenty twenty-three is when it happens, as
I mentioned, enriching investors and

598
00:46:39,592 --> 00:46:42,692
insiders, um, closing off technology,

599
00:46:43,832 --> 00:46:50,122
failing to prioritize safety, and failing
to follow nonprofit, proper nonprofit

600
00:46:50,122 --> 00:46:52,272
procedures consistent with

601
00:46:53,392 --> 00:46:54,112
what they should have done.

602
00:46:54,972 --> 00:46:58,312
So let me talk about the other two claims,
and I'm not gonna do for a long time

603
00:46:58,312 --> 00:46:59,352
because there's some overlap.

604
00:47:00,111 --> 00:47:02,872
Um, the second claim is the unjust
enrichment claim,

605
00:47:03,472 --> 00:47:06,052
and that's against the same OpenAI
defendants.

606
00:47:06,772 --> 00:47:11,452
Um, the first element of that claim is,
there's two elements as well. First

607
00:47:11,452 --> 00:47:13,052
element is receipt

608
00:47:13,872 --> 00:47:16,752
of a benefit, and the benefit includes any
advantage.

609
00:47:17,452 --> 00:47:23,652
So, um, it can be money, but it need not
be just money. Um, the, this includes the

610
00:47:23,652 --> 00:47:26,532
thirty-eight million dollars that Elon
gave OpenAI.

611
00:47:27,192 --> 00:47:31,532
Elon provided the majority of OpenAI seed
funding, as I said, and that's certainly a

612
00:47:31,532 --> 00:47:31,972
benefit.

613
00:47:32,772 --> 00:47:38,162
Um, so just the financial contributions
are, are, are enough. But he provided, and

614
00:47:38,162 --> 00:47:41,672
you heard testimony about this from
multiple witnesses throughout the trial,

615
00:47:41,672 --> 00:47:45,552
he provided much more than that. He gave
his name and reputation.

616
00:47:46,172 --> 00:47:51,412
Um, he recruited key people. He leveraged
his connections, like we heard, with, uh,

617
00:47:51,412 --> 00:47:53,852
Satya Nadella and with, uh, Jesse Wang,

618
00:47:54,672 --> 00:47:59,092
uh, from, uh, um, you know, to get, to get
com- compute, to get computers.

619
00:47:59,872 --> 00:48:02,322
And, um, he provided

620
00:48:03,012 --> 00:48:07,212
strategic guidance, um, to the-- and, and
taught the co-founders, as he put it,

621
00:48:07,212 --> 00:48:08,172
everything that he knew.

622
00:48:08,852 --> 00:48:11,772
Um, you heard about the reputation, you
heard about the recruiting,

623
00:48:12,552 --> 00:48:16,792
um, his industry connections. Obviously,
he was a very, very prominent person in

624
00:48:16,792 --> 00:48:18,392
two thousand and fifteen in the tech
world.

625
00:48:19,252 --> 00:48:24,672
Um, and so I'm not gonna go over all of
that again. You know what those, um, what,

626
00:48:24,672 --> 00:48:25,082
what those

627
00:48:26,092 --> 00:48:32,132
incidents were, what they involved, and,
and what he did. Um, he also, though, he

628
00:48:32,132 --> 00:48:34,872
also, notwithstanding what, what you're
hearing

629
00:48:35,692 --> 00:48:36,112
now,

630
00:48:36,992 --> 00:48:43,772
um, he also really did engage with and
mentor and help with the strategy,

631
00:48:43,772 --> 00:48:45,852
um, of OpenAI when it first began.

632
00:48:46,512 --> 00:48:53,304
Uh, you might, you might remember that he,
um...Ilya

633
00:48:53,304 --> 00:48:55,624
Sutskever said that he met with him
regularly,

634
00:48:56,564 --> 00:49:01,004
and you, you might remember 'cause they
got put up a couple of times, exhibits

635
00:49:01,004 --> 00:49:06,824
ninety-eight and ninety-nine, those were
emails from Ilya and the, and from Brad

636
00:49:06,824 --> 00:49:07,264
Brockman,

637
00:49:07,884 --> 00:49:09,724
and, um, you see 'em right here,

638
00:49:11,404 --> 00:49:15,824
basically praising Elon, thanking him,
telling him it was an honor to work with

639
00:49:15,824 --> 00:49:21,204
him. And so any suggestion-- And, and, and
by the way, these are dated January of

640
00:49:21,204 --> 00:49:25,964
two, twenty eighteen. So this is, you
know, a couple years into the venture at

641
00:49:25,964 --> 00:49:26,484
this point.

642
00:49:27,224 --> 00:49:27,384
Um,

643
00:49:29,084 --> 00:49:30,444
any suggestion that,

644
00:49:31,144 --> 00:49:34,644
you know, he wasn't around, he was an
absentee, I think, I think, um,

645
00:49:36,744 --> 00:49:37,264
we heard

646
00:49:37,904 --> 00:49:42,404
argument that he, he-- or I'm sorry, maybe
it was one of the OpenAI witnesses. So,

647
00:49:42,404 --> 00:49:42,524
you know,

648
00:49:44,084 --> 00:49:45,924
he, he, he came by once in a while or

649
00:49:47,004 --> 00:49:51,024
met with people, you know, over... That's
not true. I mean, you don't-- Ilya

650
00:49:51,024 --> 00:49:51,424
Sutskever

651
00:49:52,184 --> 00:49:53,644
is one of the premier,

652
00:49:54,254 --> 00:49:55,984
premier artificial intelligence

653
00:49:56,643 --> 00:50:00,044
scientists in the world. I mean, there's
no question about it. It was a big get for

654
00:50:00,044 --> 00:50:01,604
them to get him to come from Google,

655
00:50:02,304 --> 00:50:05,784
and for him to write an email like this
really says something. So,

656
00:50:06,544 --> 00:50:10,984
um, he did a lot. He did a lot. And the
second element is the unjust retention of

657
00:50:10,984 --> 00:50:15,704
that benefit. In considering whether a
benefit is unjustly retained,

658
00:50:16,324 --> 00:50:20,684
you can consider whether the defendants
knew or had reason to know that the

659
00:50:20,684 --> 00:50:25,724
plaintiff was, that the benefit was to be
used for charitable purposes, and that it

660
00:50:25,724 --> 00:50:26,044
wasn't.

661
00:50:26,664 --> 00:50:26,964
Okay?

662
00:50:27,624 --> 00:50:31,684
And that's exactly what happened here. The
defendants had every reason to know that

663
00:50:31,684 --> 00:50:37,984
Elon's contributions were charity. It's a
nonprofit. And, you know, we looked at the

664
00:50:37,984 --> 00:50:42,264
emails where Elon insisted on the
nonprofit structure. They are on these

665
00:50:42,264 --> 00:50:48,124
emails. Um, we saw how Elon, uh, told his
co-founders that he did not want to fund

666
00:50:48,124 --> 00:50:48,704
OpenAI,

667
00:50:49,404 --> 00:50:53,144
uh, if it was going in the wrong
direction. He insisted that they commit to

668
00:50:53,144 --> 00:50:58,684
the nonprofit. So I don't think there's
much doubt about that. And, um, they were

669
00:50:58,684 --> 00:51:01,924
enriching not only themselves, but
obviously their commercial partner,

670
00:51:01,924 --> 00:51:02,544
Microsoft.

671
00:51:04,144 --> 00:51:06,424
So they've unjustly retained those
benefits.

672
00:51:07,204 --> 00:51:11,004
Uh, heard about, again, Brockman's
ownership worth thirty billion.

673
00:51:11,804 --> 00:51:16,004
Altman is getting the benefits that he's
getting from his role at OpenAI. The third

674
00:51:16,004 --> 00:51:19,613
claim, final claim that we'll bring is
aiding and abetting against Microsoft, and

675
00:51:19,613 --> 00:51:22,864
to establish that Microsoft aided and
abetted OpenAI,

676
00:51:23,544 --> 00:51:24,904
Altman, and Brockman

677
00:51:25,564 --> 00:51:30,244
in a breach, um, uh, OpenAI, Altman, and
Brockman's breach of charitable trust.

678
00:51:32,144 --> 00:51:34,484
We have to prove that Microsoft had
knowledge

679
00:51:35,244 --> 00:51:36,944
that Elon made his donations

680
00:51:37,604 --> 00:51:43,644
for specific charitable purposes, and that
OpenAI defendants were going to breach

681
00:51:43,644 --> 00:51:47,924
the charitable trust by using Elon's
donations for another purpose.

682
00:51:48,964 --> 00:51:53,764
That Microsoft gave substantial assistance
or encouragement to open A-- to the

683
00:51:53,764 --> 00:51:59,344
OpenAI defendants in breaching the
charitable trust created by Elon. And that

684
00:51:59,344 --> 00:52:04,604
Microsoft's conduct was a substantial
factor, excuse me, in harming Elon.

685
00:52:06,084 --> 00:52:07,184
So knowledge, excuse me.

686
00:52:14,804 --> 00:52:15,524
So, um,

687
00:52:16,704 --> 00:52:17,584
knowledge has two parts.

688
00:52:18,224 --> 00:52:20,364
Uh, first, Microsoft, uh, knew

689
00:52:21,004 --> 00:52:25,704
that Elon made his donations for a
specific charitable purpose. They did. And

690
00:52:25,704 --> 00:52:30,524
second, Microsoft knew that open A-- the
OpenAI defendants were going to breach the

691
00:52:30,524 --> 00:52:34,604
charitable trust by using Elon's
donations for another period, purpose,

692
00:52:34,604 --> 00:52:35,004
excuse me.

693
00:52:36,324 --> 00:52:42,764
Microsoft was aware of what OpenAI was
doing every step of the way. Um, it helped

694
00:52:42,764 --> 00:52:45,024
Altman and Brockman violate OpenAI's
mission,

695
00:52:45,684 --> 00:52:49,384
and, um, that's aiding and abetting, it's
just pure and simple. Back in two thousand

696
00:52:49,384 --> 00:52:55,393
and fifteen, Microsoft knew that Elon,
uh, publicly advocated for AI safety. This

697
00:52:55,393 --> 00:52:59,164
is something you heard the testimony from
the lips of the, of the CEO of the

698
00:52:59,164 --> 00:53:00,324
company, Satya Nadella.

699
00:53:00,944 --> 00:53:01,764
Um, and

700
00:53:02,504 --> 00:53:04,444
he, he said that right here in, in this
courtroom.

701
00:53:09,564 --> 00:53:13,604
He j- his testimony was, his quote, "I
knew that he was concerned about AI

702
00:53:13,604 --> 00:53:13,934
safety,

703
00:53:14,624 --> 00:53:20,184
and I a-- and he also, I think, had deep
concerns on AI being cornered by one

704
00:53:20,184 --> 00:53:20,584
company.

705
00:53:21,304 --> 00:53:22,714
And so therefore, that's why

706
00:53:23,384 --> 00:53:26,364
he was, you know, personally dedicating
himself to build AI."

707
00:53:27,204 --> 00:53:27,444
Um,

708
00:53:28,064 --> 00:53:32,864
and the day after OpenAI launched, Nadella
emailed the link about the announcement.

709
00:53:32,864 --> 00:53:34,664
Remember that, that we saw earlier in
this?

710
00:53:35,284 --> 00:53:38,904
Um, he emailed that to a bunch of senior
executives at, um, at

711
00:53:39,824 --> 00:53:41,324
Microsoft. Um,

712
00:53:43,824 --> 00:53:46,824
and the announcement clearly says-- Let me
just put it up really quickly.

713
00:53:52,424 --> 00:53:55,704
Okay, we don't have to bring it up, as
you've seen it before. But it basically,

714
00:53:55,704 --> 00:54:00,604
you know, clearly says that, um, it's a
nonprofit organization, and that, and that

715
00:54:00,604 --> 00:54:02,584
Elon is one of the funders and founders.

716
00:54:03,184 --> 00:54:10,024
Um, they knew that the profits, um, um,
from their donations and the

717
00:54:10,024 --> 00:54:15,404
assets, um, had to be used to advance the
mission. Nadella himself being a trustee

718
00:54:15,404 --> 00:54:16,964
of a prominent nonprofit.

719
00:54:17,784 --> 00:54:19,584
Um, and he testified that, um,

720
00:54:20,544 --> 00:54:23,584
he knew that E-Elon was a major donor.
That was his testimony.

721
00:54:25,204 --> 00:54:28,744
Microsoft executives, Kevin Scott and
Michael Walter, both testified that they

722
00:54:28,744 --> 00:54:30,224
knew Elon Musk was involved

723
00:54:30,844 --> 00:54:34,104
in OpenAI's founding and was an early
donor. Um,

724
00:54:34,804 --> 00:54:39,584
and in two thousand and sixteen, there's
an internal presentation that Microsoft

725
00:54:39,584 --> 00:54:42,054
does when they're thinking about doing
more,

726
00:54:42,844 --> 00:54:45,163
um, compute with OpenAI,

727
00:54:45,164 --> 00:54:49,164
and it's defined in this deck, which is,
uh, plaintiff's exhibit two two nine,

728
00:54:50,104 --> 00:54:55,604
uh, as a high pro-profile nonprofit
organization, and it identified Elon as a

729
00:54:55,604 --> 00:55:01,740
founder.You heard Kevin Scott, who
testified yesterday, tell you that he knew

730
00:55:01,740 --> 00:55:06,620
nothing about OpenAI's open source
practice, but his email says something

731
00:55:06,620 --> 00:55:06,920
different.

732
00:55:07,560 --> 00:55:12,560
I'll direct you to exhibit two two nine,
where, um, it's clear that

733
00:55:13,220 --> 00:55:13,999
he does know that.

734
00:55:14,659 --> 00:55:18,140
Microsoft's executives were told in
January of two thousand and eighteen that

735
00:55:19,540 --> 00:55:24,660
OpenAI had been sharing their work openly
for their basic tenet. That's what he

736
00:55:24,660 --> 00:55:30,340
calls it in the email, two two nine. Basic
tenet, which he says is open.

737
00:55:31,240 --> 00:55:31,440
Um,

738
00:55:32,580 --> 00:55:34,680
Microsoft knew that-- about the intent to
breach.

739
00:55:35,600 --> 00:55:40,100
They were interested in supporting the
high pro-profile nonprofit. They knew that

740
00:55:40,100 --> 00:55:43,460
it was a nonprofit and that they had to
follow their nonprofit vision.

741
00:55:44,080 --> 00:55:47,540
Uh, again, that statement that I said to
him, "Enough with the charity and on with

742
00:55:47,540 --> 00:55:49,000
the business," and he agreed to that.

743
00:55:49,680 --> 00:55:54,140
Um, Kevin Sco-Kevin Scott, this is kind of
interesting, you know, he spotted the

744
00:55:54,140 --> 00:55:59,680
risk that this would be a problem for
Microsoft to get too, you know, deeply

745
00:55:59,680 --> 00:56:04,080
into it in the first investment in, um,
two thousand and eighteen. And he wrote

746
00:56:04,080 --> 00:56:04,700
this email

747
00:56:05,360 --> 00:56:06,740
saying, "I wonder if the

748
00:56:07,060 --> 00:56:10,930
OpenAI donors are aware of these plans."
And then,

749
00:56:11,680 --> 00:56:17,160
um, basically, that notion of building a
nonprofit on the back of, um, uh, this

750
00:56:17,160 --> 00:56:21,479
thing on the back of a nonprofit. And
Microsoft did some diligence, satisfied

751
00:56:21,480 --> 00:56:25,980
themselves that the billion-dollar
investment cap profit or two billion

752
00:56:25,980 --> 00:56:27,660
dollar investment cap profit,

753
00:56:28,620 --> 00:56:29,820
no twenty percent

754
00:56:30,560 --> 00:56:35,080
increase like the twenty twenty-three deal
had, no broad, broad,

755
00:56:35,720 --> 00:56:40,380
um, obtaining of IP rights like the twenty
twenty-three deal had, that he satisfied

756
00:56:40,380 --> 00:56:44,520
himself that, uh, or they satisfied
themselves that, that that was okay. And

757
00:56:44,520 --> 00:56:49,260
like I said, there's nothing wrong with
having a for-profit or a partnership with

758
00:56:49,260 --> 00:56:54,050
a for-profit and nonprofit, but there are
limits. And, you know, they exceeded those

759
00:56:54,050 --> 00:56:55,060
limits, and they had

760
00:56:56,000 --> 00:56:57,940
features of the deal that made it

761
00:56:58,840 --> 00:57:01,360
no longer subservient to the nonprofit.

762
00:57:02,040 --> 00:57:02,240
Um,

763
00:57:02,860 --> 00:57:06,400
things changed with the ten billion dollar
investment. We've talked about that.

764
00:57:07,860 --> 00:57:08,919
And, um,

765
00:57:14,820 --> 00:57:17,940
in their, in their diligence, they
reviewed,

766
00:57:18,660 --> 00:57:20,080
uh, the Delaware certificate

767
00:57:20,720 --> 00:57:24,480
that I showed you before and put up a
number of times, which says, "No part of

768
00:57:24,480 --> 00:57:28,800
the, of the income or assets of the
corporation shall ever inure to the

769
00:57:28,800 --> 00:57:32,560
benefit of any private person." Private
person includes Microsoft.

770
00:57:33,320 --> 00:57:34,780
Person can mean corporation.

771
00:57:35,960 --> 00:57:36,180
Um,

772
00:57:36,880 --> 00:57:38,720
and they also reviewed the IRS documents,

773
00:57:39,600 --> 00:57:43,280
and they also indicated that they were
supposed to-- they intended to make

774
00:57:43,280 --> 00:57:44,480
research freely available.

775
00:57:45,260 --> 00:57:48,800
So it's all there. It's all in the
documents that, that you will have for

776
00:57:48,800 --> 00:57:49,540
your deliberations.

777
00:57:53,800 --> 00:57:54,920
Substantial assistance.

778
00:57:56,020 --> 00:57:56,110
Um,

779
00:57:58,160 --> 00:58:01,800
you remember at the end of Satya Nadella's
testimony, I asked him some questions

780
00:58:01,800 --> 00:58:02,920
about, you know, had,

781
00:58:03,720 --> 00:58:06,940
had Microsoft done a thirteen billion
dollar deal the year before,

782
00:58:07,800 --> 00:58:10,160
year before that, year before that? He
said, "No."

783
00:58:11,220 --> 00:58:14,040
He didn't use the word never, but he said,
he said no, certainly.

784
00:58:14,660 --> 00:58:17,220
And he, he called it a really big deal,
really significant,

785
00:58:17,830 --> 00:58:19,740
um, in his testimony. So

786
00:58:20,480 --> 00:58:23,820
this was a big-- Thirteen billion. He was
saying, "Well, we took a risk." Well,

787
00:58:23,820 --> 00:58:27,220
yeah, they took a risk, but Microsoft
doesn't take a risk unless they're

788
00:58:27,220 --> 00:58:30,530
convinced that they're gonna get a return
on their investment. They can't. They're--

789
00:58:30,530 --> 00:58:34,820
They have a fiduciary duty. Just like the
people involved in the nonprofit have a

790
00:58:34,820 --> 00:58:41,040
fiduciary duty to the nonprofit's mission,
Microsoft has a duty, a fiduciary duty to

791
00:58:41,040 --> 00:58:46,980
maximize th-the shareholder value, to do
the best for the shareholders, to create a

792
00:58:46,980 --> 00:58:50,720
profit. So they were very calculated.
They, they weren't just doing this to

793
00:58:50,720 --> 00:58:54,120
experiment, to see how is this gonna work.
They thought they'd make a lot of money,

794
00:58:54,120 --> 00:58:55,769
and they drove a hard bargain to do that.

795
00:58:56,460 --> 00:59:00,000
Um, Mira Murati testified about how they
set a hundred million dollar revenue goal

796
00:59:00,860 --> 00:59:03,040
and, um, how important that was.

797
00:59:03,900 --> 00:59:04,070
Um,

798
00:59:04,740 --> 00:59:04,960
so

799
00:59:06,740 --> 00:59:07,690
through this, um,

800
00:59:08,720 --> 00:59:11,820
twenty twenty-three investment, the
safeguards that they

801
00:59:12,780 --> 00:59:15,600
thought were in place for the first two
deals were gone,

802
00:59:16,500 --> 00:59:18,820
and that's where the problem arises.

803
00:59:19,740 --> 00:59:20,430
So, um,

804
00:59:21,600 --> 00:59:21,990
you heard

805
00:59:22,960 --> 00:59:24,080
Mr. Nadella saying,

806
00:59:24,820 --> 00:59:28,940
um, "I don't want to be IBM and OpenAI to
be Microsoft."

807
00:59:29,600 --> 00:59:29,800
And,

808
00:59:30,420 --> 00:59:32,360
uh, you'll recall the testimony for
yourself.

809
00:59:33,040 --> 00:59:33,200
Um,

810
00:59:33,960 --> 00:59:39,120
I might characterize it differently than,
uh, Mr. Savitt might or, or, or, or, or my

811
00:59:39,120 --> 00:59:41,760
friends over at Microsoft might. But I
think if you

812
00:59:43,020 --> 00:59:45,980
think back on that testimony, it was
pretty clear that they didn't want to be

813
00:59:45,980 --> 00:59:48,740
left in the dust. That's what they were
concerned about.

814
00:59:49,440 --> 00:59:50,520
Um, and

815
00:59:51,300 --> 00:59:52,450
the other thing that

816
00:59:53,160 --> 00:59:56,400
he was very clear about, and he and I went
back and forth on this. You remember it.

817
00:59:56,400 --> 01:00:00,240
I, I, I really would have liked you to
look at this in exhibit two fifty-nine.

818
01:00:00,240 --> 01:00:04,240
Remember he said we went back and forth
about IP rights, and he said, "Know-how."

819
01:00:04,940 --> 01:00:10,180
He and I went back and forth on that. And
it's clear that they were pushing. He's,

820
01:00:10,180 --> 01:00:14,120
you know, he said, "We need to control our
destiny," you know, and that meant

821
01:00:14,120 --> 01:00:14,640
getting

822
01:00:15,280 --> 01:00:16,820
the rights, getting

823
01:00:17,480 --> 01:00:19,840
what they could. So, um, it

824
01:00:20,500 --> 01:00:22,240
far exceeds what was done before.

825
01:00:23,100 --> 01:00:26,100
And of course, you have the eye-popping
returns that we talked about.

826
01:00:32,520 --> 01:00:32,720
And

827
01:00:33,800 --> 01:00:37,300
the other thing they did is when they
fired Sam Altman, we talked about how that

828
01:00:37,300 --> 01:00:38,500
was a governance failure

829
01:00:39,180 --> 01:00:40,940
for OpenAI.

830
01:00:43,420 --> 01:00:44,100
Microsoft

831
01:00:44,860 --> 01:00:45,260
is not

832
01:00:45,960 --> 01:00:47,200
held to that, that same

833
01:00:47,820 --> 01:00:52,360
standard because they're not-- they don't
have that same, same duty as the OpenAI

834
01:00:52,360 --> 01:00:55,500
directors in terms of the governance of
OpenAI, the nonprofit.

835
01:00:56,180 --> 01:00:59,520
But they certainly helped them,

836
01:01:00,140 --> 01:01:03,720
not just through their commercial terms.
But you heard about what happened the

837
01:01:03,720 --> 01:01:07,992
weekend that Sam Altman was fired.Talked
to Satya Nad-Nadella and Kevin Scott

838
01:01:07,992 --> 01:01:10,672
almost right away. Was on the phone with
them all weekend.

839
01:01:11,352 --> 01:01:14,632
Um, offered them, offered jobs to Altman
and Bachman.

840
01:01:15,752 --> 01:01:17,352
Over the course of the weekend, offered,

841
01:01:18,492 --> 01:01:19,892
with the help of, um,

842
01:01:20,632 --> 01:01:24,032
Mira Murati and, and, and some others,
jobs to other

843
01:01:24,892 --> 01:01:29,411
OpenAI employees. They were basically
saying, you know, "We'll take, we'll take

844
01:01:29,412 --> 01:01:29,772
you all,"

845
01:01:30,512 --> 01:01:34,692
at the cost of about twenty-five billion
dollars. And it's a big expense, and it

846
01:01:34,692 --> 01:01:38,452
was-- It came as a year, at a year that
Microsoft had just laid off a bunch of

847
01:01:38,452 --> 01:01:39,532
people the year before.

848
01:01:40,212 --> 01:01:44,092
So this was a real commitment that they
were making 'cause they didn't wanna see

849
01:01:44,092 --> 01:01:48,812
OpenAI disintegrate. They didn't wanna see
the people get hired by Google or get

850
01:01:48,812 --> 01:01:51,662
hired by, um, any, any other

851
01:01:52,972 --> 01:01:55,832
company that would be developing AI. It's
a big deal.

852
01:01:56,532 --> 01:02:01,252
Very big deal. And in the end, you
remember too, um, I showed him the text

853
01:02:01,252 --> 01:02:07,892
message chain between he and, um, Altman
about directors. There were actually, uh,

854
01:02:07,892 --> 01:02:12,552
Kevin, Kevin Scott was on it, and Bret
Taylor was on for part of it. And they

855
01:02:12,552 --> 01:02:13,172
were, they were

856
01:02:14,112 --> 01:02:18,932
offering names for the nonprofit, and you
heard Professor Schizer talk about that,

857
01:02:18,932 --> 01:02:19,852
talk about, um...

858
01:02:20,452 --> 01:02:21,672
There's one where he says, "No,

859
01:02:22,332 --> 01:02:23,412
uh, strong no."

860
01:02:24,192 --> 01:02:24,972
And they also

861
01:02:25,652 --> 01:02:29,432
produced, uh, certain names, offered up
certain names. And

862
01:02:30,212 --> 01:02:34,452
in the end, when Altman decides, you know,
"This is what I'm willing to do, how

863
01:02:34,452 --> 01:02:38,492
about this board?" And he proposes one of
the people was Larry Summers,

864
01:02:39,412 --> 01:02:40,612
that Nadella didn't know.

865
01:02:41,432 --> 01:02:44,572
And Nadella said, "Can I call him
tonight?" And Altman said, "Yes."

866
01:02:45,292 --> 01:02:45,472
So

867
01:02:46,092 --> 01:02:49,972
the for-profit partner, the commercial
partner in the for-profit

868
01:02:50,692 --> 01:02:51,172
entity,

869
01:02:52,312 --> 01:02:58,552
was exercising control over the nonprofit.
I mean, giving Microsoft the right to

870
01:02:58,552 --> 01:03:02,212
approve or disapprove a director... Now,
we heard testimony from Micro-- or we

871
01:03:02,212 --> 01:03:04,682
heard questions from Micro-Microsoft's
lawyer where he said,

872
01:03:05,392 --> 01:03:11,932
"Oh, don't people call you all the time
for advice on who should be on a board, or

873
01:03:11,932 --> 01:03:16,082
would this person make a good director?"
That may be true. They may, okay? That's

874
01:03:16,082 --> 01:03:18,532
not what this was. That's not what this
was. This was

875
01:03:19,692 --> 01:03:22,832
exercising, you know, control through

876
01:03:23,572 --> 01:03:27,692
participating in that decision, and that
is not something that they can do.

877
01:03:28,312 --> 01:03:30,232
So that is substantial assistance in the
breach.

878
01:03:30,872 --> 01:03:34,092
Doing it in the first place was a breach
on the part of the OpenAI defendants, and

879
01:03:34,092 --> 01:03:37,692
Microsoft provided that substantial
assistance, and it was a substantial

880
01:03:37,692 --> 01:03:39,752
factor. The substantial factor,

881
01:03:40,392 --> 01:03:40,612
um,

882
01:03:41,472 --> 01:03:42,992
in harming Elon was

883
01:03:44,092 --> 01:03:48,272
thirteen billion dollar investment,
expanding the TRAs, the commercialization,

884
01:03:48,272 --> 01:03:52,152
aggressive action after OpenAI board
fired the CEO for lying,

885
01:03:52,772 --> 01:03:59,632
and then control over OpenAI's IP. So
without Microsoft and, and its enormous

886
01:03:59,632 --> 01:04:05,112
resources that it brought to bear in the
situation, and its active engagement, it

887
01:04:05,112 --> 01:04:09,492
wasn't like it wrote a check and said, you
know, "Go, go take care of things." The

888
01:04:09,492 --> 01:04:13,952
active engagement of people at the very
highest levels of the company, the CEO,

889
01:04:13,952 --> 01:04:16,752
the chief technology officer, the chief
financial officer,

890
01:04:17,572 --> 01:04:17,772
um,

891
01:04:18,732 --> 01:04:21,612
they deployed extensive resources,

892
01:04:22,292 --> 01:04:25,872
and without them, Altman and Bachman could
not have looted

893
01:04:26,592 --> 01:04:28,532
the nonprofit's assets as they have

894
01:04:29,172 --> 01:04:33,472
and, uh, built it on the back of this,
quote, "nonprofit thing," as

895
01:04:34,212 --> 01:04:38,252
it was called in that earlier email. So
the evidence showing Microsoft's

896
01:04:38,252 --> 01:04:40,972
substantial role is absolutely clear, and

897
01:04:41,692 --> 01:04:43,512
that's evidence that proves all three of
our claims.

898
01:04:44,552 --> 01:04:45,372
All three of our claims.

899
01:04:45,972 --> 01:04:47,592
Far beyond a preponderance of the
evidence.

900
01:04:48,372 --> 01:04:51,792
Far beyond a preponderance of the
evidence. All we need to prove is by a

901
01:04:51,792 --> 01:04:56,792
preponderance of the evidence, but that
evidence gets you much, much farther.

902
01:04:57,532 --> 01:04:57,712
Um,

903
01:04:58,452 --> 01:05:03,752
they raise a technical defense called the
statute of limitations, right? They're,

904
01:05:03,752 --> 01:05:04,192
they're claiming,

905
01:05:04,932 --> 01:05:07,932
you know, we brought the suit too late.
That Elon brought the suit too late.

906
01:05:09,272 --> 01:05:14,072
The evidence was very clear that Elon
learned of the twenty twenty-three

907
01:05:14,072 --> 01:05:15,252
Mi-Microsoft deal

908
01:05:16,092 --> 01:05:18,252
in Oc-October twenty-second

909
01:05:18,932 --> 01:05:23,511
of twenty twenty-two. How do I know that
specific date? Because there's a text

910
01:05:23,511 --> 01:05:30,492
message from Elon to Sam Altman, and it
contains an article that talks about the

911
01:05:30,492 --> 01:05:35,192
deal. The deal hadn't closed yet. It was
closing in twenty twenty-three. But it

912
01:05:35,192 --> 01:05:39,162
describes the deal, and Elon is saying to
him in this text message,

913
01:05:39,812 --> 01:05:43,912
uh, this is the article, um, which is
Plaintiff's Exhibit two ninety-five. He

914
01:05:43,912 --> 01:05:49,752
actually sends the article to Altman, and
in it, you know, OpenAI is valued then at,

915
01:05:49,752 --> 01:05:54,092
at twenty billion. It's valued at much
more now. Um, and it says, "In advanced

916
01:05:54,092 --> 01:05:57,092
talks with Microsoft for, for..." And Elon
was upset.

917
01:05:57,712 --> 01:05:58,542
He sent, um,

918
01:05:59,712 --> 01:06:04,042
the text message, and, and you, you saw
that. This is where he said,

919
01:06:04,692 --> 01:06:07,672
um, "Seems like a bait and switch. This is
a bait and switch."

920
01:06:08,292 --> 01:06:10,892
And he expresses concern about, um,

921
01:06:11,572 --> 01:06:12,852
Microsoft. Says, um,

922
01:06:14,092 --> 01:06:16,412
"For sure what rights I can..." And
Altman's response,

923
01:06:17,092 --> 01:06:18,152
Altman's response was,

924
01:06:19,232 --> 01:06:23,692
"I agree this feels bad. We offered you
equity when we established the capped

925
01:06:23,692 --> 01:06:28,492
profit, which you didn't want at the time,
but we are still very happy to do that

926
01:06:28,492 --> 01:06:30,572
a-at any time you want." But what was
Elon's reaction?

927
01:06:31,972 --> 01:06:32,792
He said, "Get out of here.

928
01:06:33,672 --> 01:06:35,912
I'm not gonna do that." I mean, and, and
he didn't.

929
01:06:36,972 --> 01:06:40,652
Again, if he wanted to do this as a
for-profit, he could have done it. He

930
01:06:40,652 --> 01:06:43,672
didn't need to do it this way with Sam
Altman, you know,

931
01:06:44,652 --> 01:06:46,752
basically stealing a charity.

932
01:06:47,412 --> 01:06:51,312
And Altman's response wasn't, "Gee, I'm
sorry about this," or, "I thought you

933
01:06:51,312 --> 01:06:55,272
knew," or anything like that. Nothing like
that. His response was, you know,

934
01:06:56,052 --> 01:06:57,432
"We're happy to give you equity."

935
01:06:58,112 --> 01:07:00,362
Elon called it a bribe. You can call it
whatever you want,

936
01:07:00,992 --> 01:07:02,712
but that's what he called it. So

937
01:07:03,512 --> 01:07:04,852
that defense, um,

938
01:07:05,512 --> 01:07:09,852
goes nowhere. They're gonna try to wave
around, uh, emails or

939
01:07:10,472 --> 01:07:13,752
Chrome sheet or whatever it is that
they're gonna try to put up and try and

940
01:07:13,752 --> 01:07:20,616
convince youUm, that somehow or another
Elon knew that

941
01:07:20,616 --> 01:07:23,736
what happened in twenty twenty-three, he
knew that somehow before.

942
01:07:25,476 --> 01:07:26,576
Th-th-the breach occurs

943
01:07:27,736 --> 01:07:31,255
later. It occurs here in twenty
twenty-three in the ways that I described

944
01:07:31,256 --> 01:07:31,476
to you.

945
01:07:32,096 --> 01:07:33,036
So, um,

946
01:07:34,296 --> 01:07:37,016
the statute of limitations defense is not,
is not

947
01:07:39,056 --> 01:07:42,636
supported by, by the evidence, quite
simply. Don't let them try to trick you

948
01:07:42,636 --> 01:07:43,576
into thinking that it is.

949
01:07:44,416 --> 01:07:49,156
I have an opportunity since I'm the
plaintiff to get to speak with you again,

950
01:07:50,016 --> 01:07:50,356
and

951
01:07:51,136 --> 01:07:55,255
I can tell by the looks on your faces
you're all super excited this could happen

952
01:07:55,255 --> 01:07:55,266
[laughs].

953
01:07:56,836 --> 01:07:57,356
But, um,

954
01:07:58,036 --> 01:07:58,576
uh, so

955
01:07:59,336 --> 01:08:00,016
I'm gonna sit down.

956
01:08:06,516 --> 01:08:11,065
Thank you. Few other things when I get
back,

957
01:08:11,716 --> 01:08:12,046
and,

958
01:08:12,936 --> 01:08:17,076
uh, including some of the things that
they're gonna say. But thanks very much,

959
01:08:17,076 --> 01:08:19,196
really appreciate having this with

960
01:08:20,616 --> 01:08:23,436
-you.
-Okay. We're gonna go ahead and stand and

961
01:08:23,436 --> 01:08:26,636
stretch while, uh, Mr. Savitt, um, gets
ready.

962
01:08:31,656 --> 01:08:32,296
Go on in the...

963
01:08:34,596 --> 01:08:38,836
And if you want, you can

964
01:08:38,836 --> 01:08:43,746
stretch.

965
01:08:52,296 --> 01:08:52,876
Yes, thank you.

966
01:08:55,966 --> 01:08:55,966
Oh,

967
01:09:01,756 --> 01:09:07,076
pardon

968
01:09:15,996 --> 01:09:18,156
-me.
-Ms. Eddy, is this a, is this a different

969
01:09:18,156 --> 01:09:18,396
one?

970
01:09:20,316 --> 01:09:23,096
That you gave, you all gave me one
earlier.

971
01:09:24,156 --> 01:09:29,376
-Uh, something [laughs]
-It's, it's, that's, it, it's your size

972
01:09:29,376 --> 01:09:31,666
[laughs]. It's all right.

973
01:09:32,276 --> 01:09:36,796
-You like that a little bit more.
-Charlie. Charlie. Charlie.

974
01:09:41,316 --> 01:09:43,816
That you all, yeah, you all gave me one
this morning.

975
01:09:43,816 --> 01:09:45,976
-It's another way I needed [laughs].
-You need to think about it. That's how you

976
01:09:45,976 --> 01:09:46,196
tell.

977
01:09:46,965 --> 01:09:47,356
No, go.

978
01:09:48,696 --> 01:09:48,976
Okay.

979
01:09:59,016 --> 01:09:59,716
What if it's so

980
01:09:59,716 --> 01:10:07,716
little?

981
01:10:09,816 --> 01:10:18,826
[background chatter]

982
01:10:18,826 --> 01:10:20,096
I

983
01:10:26,596 --> 01:10:27,796
thought it was Mr. Savitt.

984
01:10:28,696 --> 01:10:30,456
-Are you prepared?
-Ready.

985
01:10:30,456 --> 01:10:30,796
Okay.

986
01:10:33,196 --> 01:10:36,196
-Uh, we are back on the record.
-[laughs]

987
01:10:36,196 --> 01:10:39,736
-Ms. Eddy is at the, uh, podium.
-Thank you. Okay.

988
01:10:40,536 --> 01:10:40,776
[background chatter]

989
01:10:41,636 --> 01:10:51,356
Proceed

990
01:10:51,356 --> 01:10:52,066
as soon as you're

991
01:10:52,696 --> 01:10:53,316
ready.

992
01:10:56,696 --> 01:10:58,076
Can people hear me at the microphone?

993
01:10:58,936 --> 01:10:59,196
What?

994
01:10:59,916 --> 01:11:02,616
-No.
-Again, I would pull it down and then flip

995
01:11:02,616 --> 01:11:05,156
it up a little bit so it catches your
voice.

996
01:11:05,156 --> 01:11:06,476
-Like this?
-Yes.

997
01:11:06,476 --> 01:11:07,536
-Okay.
-Thank you.

998
01:11:07,536 --> 01:11:12,196
Um, good morning, members of the jury, and
it is, uh, it's a pleasure to, uh,

999
01:11:12,196 --> 01:11:15,916
finally address you after these several
weeks.

1000
01:11:16,616 --> 01:11:21,516
Um, Elon Musk has tried to persuade you
that

1001
01:11:22,596 --> 01:11:25,346
-his years-
-Hold on. We're getting some feedback. Let

1002
01:11:25,346 --> 01:11:25,346
us...

1003
01:11:27,516 --> 01:11:28,996
-Try to lower the volume.
-Colin, can you

1004
01:11:29,856 --> 01:11:31,816
push that mic down? I don't know what the-

1005
01:11:32,796 --> 01:11:34,176
-It's off already, yeah.
-Okay.

1006
01:11:36,555 --> 01:11:37,556
Is this still echoing?

1007
01:11:41,336 --> 01:11:42,896
-All right, let's try again. Go ahead.
-Okay.

1008
01:11:43,916 --> 01:11:44,596
Can people hear me?

1009
01:11:45,656 --> 01:11:45,856
All right.

1010
01:11:46,956 --> 01:11:50,166
Um, Mr. Musk, he has tried to persuade you

1011
01:11:50,976 --> 01:11:54,396
that his years-ago donations to OpenAI

1012
01:11:55,836 --> 01:11:57,966
came with specific strings attached,

1013
01:11:59,216 --> 01:12:05,976
that these strings were strong enough to
last forever, to tie OpenAI up in knots

1014
01:12:07,036 --> 01:12:08,456
as it tries to pursue its mission,

1015
01:12:09,976 --> 01:12:14,816
and that these strings gave Mr. Musk
perpetual rights over OpenAI.

1016
01:12:16,716 --> 01:12:18,676
But Mr. Musk has come nowhere close

1017
01:12:19,756 --> 01:12:20,676
to making that case.

1018
01:12:21,896 --> 01:12:22,796
Even the people

1019
01:12:23,576 --> 01:12:24,546
who work for him,

1020
01:12:25,296 --> 01:12:26,496
even the mother of his children,

1021
01:12:27,716 --> 01:12:28,746
can't back his story.

1022
01:12:32,356 --> 01:12:34,156
No one in this case,

1023
01:12:34,876 --> 01:12:36,036
other than Elon Musk,

1024
01:12:36,656 --> 01:12:39,286
has testified to commitments or promises

1025
01:12:40,336 --> 01:12:45,076
that OpenAI or Sam Altman or Greg Brockman
made to Mr. Musk.

1026
01:12:46,296 --> 01:12:49,666
No documents corroborate Mr. Musk's story,

1027
01:12:51,216 --> 01:12:54,996
and that's because no commitments or
promises were made.

1028
01:12:55,696 --> 01:13:01,376
No restrictions were placed on Mr. Musk's
donations. There are no real claims here,

1029
01:13:01,376 --> 01:13:02,156
members of the jury.

1030
01:13:04,516 --> 01:13:06,296
And ask yourself,

1031
01:13:07,316 --> 01:13:07,566
if

1032
01:13:08,336 --> 01:13:15,036
what Elon Musk really believed was that
AGI had to be pursued within a nonprofit,

1033
01:13:15,036 --> 01:13:16,256
open-source company,

1034
01:13:17,576 --> 01:13:23,984
don't you think he'd have launched his
ownCompetitor AI company as a nonprofit

1035
01:13:23,984 --> 01:13:27,284
open source company. That is not what he
did.

1036
01:13:28,944 --> 01:13:30,704
He launched it as a for-profit,

1037
01:13:31,384 --> 01:13:34,584
as he does every, every other company that
he's launched.

1038
01:13:39,024 --> 01:13:39,284
But

1039
01:13:41,644 --> 01:13:45,983
common sense and the law and the evidence,
uh, don't, don't feature all that

1040
01:13:45,984 --> 01:13:47,623
prominently in Mr. Musk's case.

1041
01:13:48,524 --> 01:13:53,364
Because a lot of what you've heard from
plaintiff in opening and throughout this

1042
01:13:53,364 --> 01:13:58,644
trial, and now in closing, is sound bites
and irrelevant false accusations.

1043
01:13:59,604 --> 01:14:02,444
Mr. Musk accuses defendants of stealing a
charity.

1044
01:14:03,544 --> 01:14:09,624
The truth is that through the work of Greg
Brockman, Sam Altman, Ilya Sutskever, the

1045
01:14:09,624 --> 01:14:14,744
many other people who have poured their
hearts and souls into OpenAI since Elon

1046
01:14:14,744 --> 01:14:16,824
Musk abandoned it in twenty eighteen,

1047
01:14:17,984 --> 01:14:23,284
the OpenAI Foundation is now probably the
best-resourced nonprofit in the world.

1048
01:14:23,924 --> 01:14:27,024
It has roughly two hundred billion dollars
in assets.

1049
01:14:28,224 --> 01:14:32,904
It operates under the oversight of not
one, but two state attorneys general in

1050
01:14:32,904 --> 01:14:39,904
deploying these assets to help make AGI
turn out well for humanity.

1051
01:14:39,904 --> 01:14:40,804
And the nonprofit

1052
01:14:41,724 --> 01:14:45,624
still controls the for-profit, which is
now, as you heard, a PBC.

1053
01:14:47,624 --> 01:14:49,194
Mr. Musk says--

1054
01:14:50,104 --> 01:14:52,244
Mr. Mullow says that Sam Altman

1055
01:14:53,104 --> 01:14:53,924
can't be trusted.

1056
01:14:54,584 --> 01:15:00,224
And the truth is, as we will talk about,
Mr. Musk is the one whose testimony is

1057
01:15:00,224 --> 01:15:04,924
contradicted by every other witness and by
all the documents.

1058
01:15:06,204 --> 01:15:11,144
And the evidence shows that ninety
percent, an astounding ninety percent

1059
01:15:11,464 --> 01:15:16,064
of OpenAI employees demanded that Mr.
Altman be reinstated after the people who

1060
01:15:16,064 --> 01:15:21,764
removed him couldn't give a coherent
explanation for why they decided he lacked

1061
01:15:21,764 --> 01:15:22,414
candor. Now,

1062
01:15:23,764 --> 01:15:30,304
Mr. Mullow spent a lot of time attacking
Mr. Altman's credibility in his closing,

1063
01:15:30,304 --> 01:15:34,564
based in part on Mr. Mullow's own
questions that he posed to the witness.

1064
01:15:34,564 --> 01:15:37,654
And questions, as you heard from Judge
Gonzalez Rogers,

1065
01:15:38,364 --> 01:15:39,384
are not evidence.

1066
01:15:40,824 --> 01:15:43,784
Mr. Mullow has his questions. He has his
characterizations.

1067
01:15:44,984 --> 01:15:49,164
You need to exercise your own judgment
about who's telling the truth here.

1068
01:15:50,784 --> 01:15:52,944
Mr. Musk, the witness who

1069
01:15:54,184 --> 01:15:55,184
no document,

1070
01:15:56,004 --> 01:15:57,824
no other witness corroborates,

1071
01:15:58,904 --> 01:15:59,764
or Mr. Altman,

1072
01:16:00,544 --> 01:16:05,703
whom every other important witness in the
case corroborates and whom all the

1073
01:16:05,704 --> 01:16:10,983
documents corroborate. You make that
judgment. Now,

1074
01:16:11,704 --> 01:16:15,884
our project, and this is going to be a
joint project, Mr. Sabot and I are both

1075
01:16:15,884 --> 01:16:21,384
going to address you. Our, our project
will be to focus on the facts and on the

1076
01:16:21,384 --> 01:16:21,604
law,

1077
01:16:22,784 --> 01:16:26,483
and to set aside the false accusations
having nothing to do with the rights that

1078
01:16:26,484 --> 01:16:29,624
Elon Musk now claims he has over OpenAI.

1079
01:16:31,084 --> 01:16:35,344
Um, but because Mr. Musk's counsel has
told you for about two hours what you

1080
01:16:35,344 --> 01:16:35,934
should think,

1081
01:16:36,724 --> 01:16:41,504
we're now going to show you what the
evidence demonstrates. We'll examine

1082
01:16:41,504 --> 01:16:45,904
together how the pieces of, of the jigsaw
puzzle come together.

1083
01:16:47,084 --> 01:16:51,324
We do have a lot of ground to cover, and,
and we'll walk through with you just how

1084
01:16:51,324 --> 01:16:53,344
the evidence that you've seen and heard

1085
01:16:53,984 --> 01:16:55,044
over the past few weeks,

1086
01:16:55,924 --> 01:16:59,584
not just from the defendants, but from Mr.
Musk's own witnesses,

1087
01:17:00,544 --> 01:17:03,004
how all that evidence defeats Mr. Musk's
claims.

1088
01:17:04,084 --> 01:17:07,044
And we will not be able to cover every
piece of evidence.

1089
01:17:07,704 --> 01:17:09,724
Um, there's honestly too much of it,

1090
01:17:10,364 --> 01:17:13,024
but we will try to hit the highlights for
you here.

1091
01:17:14,464 --> 01:17:16,624
Uh, then we will turn to the affirmative
defenses,

1092
01:17:17,264 --> 01:17:19,024
uh, the reasons why Mr. Musk

1093
01:17:19,684 --> 01:17:22,944
couldn't proceed with-- couldn't bring a
claim even if he had one.

1094
01:17:23,664 --> 01:17:27,624
And here we're gonna start with the
statute of limitations,

1095
01:17:28,904 --> 01:17:33,084
which is actually the first issue that
you'll need to address when you go back to

1096
01:17:33,084 --> 01:17:33,744
the jury room.

1097
01:17:34,444 --> 01:17:38,324
Um, so you'll wanna keep the timeline in
mind here as we talk through the evidence.

1098
01:17:38,324 --> 01:17:43,424
Mr. Musk left OpenAI in twenty eighteen.

1099
01:17:44,464 --> 01:17:47,584
His last contribution of any kind was in
twenty twenty.

1100
01:17:48,724 --> 01:17:51,444
This case was filed in August twenty
twenty-four.

1101
01:17:52,584 --> 01:17:56,404
The statute of limitations for Mr. Musk's
charitable trust claim

1102
01:17:57,084 --> 01:17:57,904
is three years.

1103
01:17:59,194 --> 01:18:03,584
The statute of limitations for his unjust
enrichment claim is only two years.

1104
01:18:04,944 --> 01:18:05,764
What that means

1105
01:18:06,564 --> 01:18:09,994
is that if the things Mr. Musk is
complaining about today

1106
01:18:11,364 --> 01:18:15,544
are things he could have complained about
before August fifth, twenty twenty-one,

1107
01:18:16,584 --> 01:18:17,244
then he can't win.

1108
01:18:18,844 --> 01:18:21,224
And as we will show, that is exactly the
case.

1109
01:18:22,044 --> 01:18:26,804
Well before August fifth, twenty
twenty-one, Mr. Musk knew or could, with

1110
01:18:26,804 --> 01:18:31,244
reasonable diligence, have discovered the
facts he now says give him a basis for a

1111
01:18:31,244 --> 01:18:31,744
lawsuit.

1112
01:18:36,724 --> 01:18:37,764
Now, as Mr.

1113
01:18:37,824 --> 01:18:40,224
Sabot told you during his opening,

1114
01:18:41,844 --> 01:18:45,424
and as you've now seen for yourselves, in
this case, the statute of limitations is

1115
01:18:45,424 --> 01:18:46,524
not a technical defense.

1116
01:18:47,484 --> 01:18:53,304
It's a textbook case, this one, for why we
have a statute of limitations defense in

1117
01:18:53,304 --> 01:18:58,044
the first place. So hope people don't run
into court years after the events in

1118
01:18:58,044 --> 01:18:58,524
question,

1119
01:18:59,644 --> 01:19:02,653
manufacturing claims at a time that's
convenient to them,

1120
01:19:03,684 --> 01:19:07,124
when memories are faded and evidence is
lost.

1121
01:19:10,764 --> 01:19:14,044
Finally, after the statute of limitations,
we're going to address the other two

1122
01:19:14,044 --> 01:19:18,144
affirmative defenses that we have here.
Um, and we bear the burden on those.

1123
01:19:19,104 --> 01:19:19,264
So

1124
01:19:19,964 --> 01:19:23,164
they only apply if m-- if you find that
Mr. Musk has a claim,

1125
01:19:23,804 --> 01:19:29,936
but we bear the burden if you found that
he did.And those two defenses are latches

1126
01:19:29,936 --> 01:19:35,116
and unclean hands. We'll explain how M-
how Mr. Musk's calculated delay in

1127
01:19:35,116 --> 01:19:36,016
bringing this case

1128
01:19:36,976 --> 01:19:40,136
and his bad conduct related to his claims

1129
01:19:41,136 --> 01:19:43,716
mean that he could not bring a claim even
if he had one,

1130
01:19:45,336 --> 01:19:50,076
which he doesn't. And that brings me to
the first claim, the charitable trust

1131
01:19:50,076 --> 01:19:50,336
claim.

1132
01:19:52,556 --> 01:19:55,936
The, the theory of this claim, as you've
just heard,

1133
01:19:56,976 --> 01:20:01,236
and have heard all, all through this case,
is that when Mr. Musk donated

1134
01:20:01,236 --> 01:20:06,056
thirty-eight million dollars and four
Teslas to op- the OpenAI nonprofit from

1135
01:20:06,056 --> 01:20:07,776
twenty sixteen to twenty twenty,

1136
01:20:08,896 --> 01:20:14,196
he secured commitments from OpenAI and Sam
Altman and Greg Brockman to him

1137
01:20:14,196 --> 01:20:15,656
personally, Mr. Musk personally,

1138
01:20:16,776 --> 01:20:19,536
that the OpenAI nonprofit would stay a
nonprofit

1139
01:20:20,216 --> 01:20:21,896
and would open source its technology.

1140
01:20:23,416 --> 01:20:28,716
You now know that is not what happened.
Mr. Musk didn't leave OpenAI with

1141
01:20:28,716 --> 01:20:30,916
commitments from anyone to do anything.

1142
01:20:33,116 --> 01:20:36,296
And just before we dive into the elements
of the claim,

1143
01:20:37,096 --> 01:20:39,336
I, I wanna just briefly recap

1144
01:20:40,016 --> 01:20:44,236
what the evidence shows about Mr. Musk's
relationship with OpenAI from the early

1145
01:20:44,236 --> 01:20:45,956
years when he was actually there.

1146
01:20:47,936 --> 01:20:49,336
Before OpenAI launched,

1147
01:20:50,336 --> 01:20:54,596
Elon Musk promised to fund it to the tune
of a billion dollars.

1148
01:20:56,096 --> 01:21:00,696
And he thought at first it should be a
for-profit co- corporation. That is what

1149
01:21:00,696 --> 01:21:03,676
the document shows. But it launched as a
nonprofit.

1150
01:21:05,636 --> 01:21:06,756
By twenty seventeen,

1151
01:21:07,496 --> 01:21:14,036
everyone associated with OpenAI realized
that pursuit of its mission would require

1152
01:21:14,036 --> 01:21:16,696
far more money than could be raised by a
nonprofit.

1153
01:21:17,836 --> 01:21:23,756
You heard this from witness upon witness
in the case. You heard it from Elon Musk,

1154
01:21:23,756 --> 01:21:27,476
Sam Altman, Ilya Sutskever, Greg Brockman,
Tasha McCauley.

1155
01:21:28,936 --> 01:21:30,856
This is essentially uncontroverted.

1156
01:21:32,096 --> 01:21:32,976
And at that time,

1157
01:21:33,816 --> 01:21:38,916
in twenty seventeen, Mr. Musk wanted to
turn OpenAI into a for-profit company that

1158
01:21:38,916 --> 01:21:40,436
he could control.

1159
01:21:44,956 --> 01:21:46,036
But the other founders

1160
01:21:47,236 --> 01:21:52,276
refused to turn the keys of AGI over to
one person, let alone Elon Musk.

1161
01:21:53,236 --> 01:21:56,676
And we're gonna see a lot of this document
here today. You've seen a lot of it

1162
01:21:56,676 --> 01:22:00,546
during the trial. This is the Honest
Thoughts email thread from September

1163
01:22:00,546 --> 01:22:01,856
twenty, twenty seventeen,

1164
01:22:02,556 --> 01:22:06,236
when the four initial intense for-profit
negotiations fell apart.

1165
01:22:08,766 --> 01:22:12,216
This is where Greg Brockman and Ilya
Sutskever stood up to Elon Musk.

1166
01:22:13,496 --> 01:22:14,826
And shortly after they did that,

1167
01:22:15,716 --> 01:22:18,816
Mr. Musk sought to merge OpenAI into
Tesla.

1168
01:22:20,716 --> 01:22:25,616
But the other founders rejected that idea
too. They didn't want to be absorbed into

1169
01:22:25,616 --> 01:22:26,706
Mr. Musk's empire.

1170
01:22:29,156 --> 01:22:31,636
So Mr. Musk picked up his marbles.

1171
01:22:32,436 --> 01:22:36,816
He went home, declaring that OpenAI would
have zero chance of success.

1172
01:22:37,596 --> 01:22:38,916
Those were his parting words.

1173
01:22:39,976 --> 01:22:44,196
And w- we're gonna get into much more
detail about these early years, this, this

1174
01:22:44,196 --> 01:22:45,296
early part,

1175
01:22:46,396 --> 01:22:47,836
but that's the basic framework.

1176
01:22:48,776 --> 01:22:52,296
It's what we told you the evidence would
show at the beginning of this case, and

1177
01:22:52,296 --> 01:22:53,916
it's what the evidence has shown.

1178
01:22:55,736 --> 01:22:57,276
What the evidence has not shown

1179
01:22:58,116 --> 01:23:00,076
is any breach of charitable trust.

1180
01:23:02,136 --> 01:23:02,276
Now,

1181
01:23:03,056 --> 01:23:04,036
to prove this claim,

1182
01:23:04,796 --> 01:23:07,935
there were three things that Mr. Musk
needed to establish.

1183
01:23:08,536 --> 01:23:11,356
First, he needed to prove the existence of
a charitable trust.

1184
01:23:12,636 --> 01:23:16,935
Second, he had to prove that any supposed
trust still existed

1185
01:23:17,836 --> 01:23:20,556
by the time of the breach, twenty
twenty-three.

1186
01:23:22,696 --> 01:23:25,616
Third, he had to prove that his donations
were misused.

1187
01:23:27,156 --> 01:23:30,306
He had to prove all three of those things,
and he failed on each one of them.

1188
01:23:32,466 --> 01:23:35,116
So first, let's start with the existence
of the trust.

1189
01:23:35,836 --> 01:23:39,436
Remember Jud- Judge Gonzales Rogers's
instructions.

1190
01:23:40,576 --> 01:23:41,896
To have a charitable trust,

1191
01:23:42,576 --> 01:23:46,996
it's not enough to make an outright
donation to a nonprofit to be used for

1192
01:23:46,996 --> 01:23:49,665
general charitable-- for general purposes.

1193
01:23:51,516 --> 01:23:53,396
Instead, you need to have a donation

1194
01:23:54,176 --> 01:23:56,196
for a purpose that's both charitable

1195
01:23:56,856 --> 01:23:57,816
and specific.

1196
01:23:58,876 --> 01:24:02,396
If you donate money to a hospital, that's
charitable, but it doesn't give you a

1197
01:24:02,396 --> 01:24:03,276
charitable trust.

1198
01:24:04,416 --> 01:24:08,416
If you donate to a hospital specifically
to support medical research on a

1199
01:24:08,416 --> 01:24:09,476
particular disease,

1200
01:24:10,376 --> 01:24:12,796
that might give you a charitable trust. It
might,

1201
01:24:14,196 --> 01:24:14,646
but only

1202
01:24:15,396 --> 01:24:19,516
if you also properly manifested an intent
to create the trust,

1203
01:24:20,196 --> 01:24:22,316
which means you need to have communicated
it,

1204
01:24:23,556 --> 01:24:25,236
communicated an intention

1205
01:24:25,856 --> 01:24:28,056
to impose an enforceable obligation.

1206
01:24:28,736 --> 01:24:30,666
So that's what Mr. Musk needed to prove

1207
01:24:31,416 --> 01:24:34,796
to prove the existence of a charitable
trust. He didn't meet that test.

1208
01:24:36,736 --> 01:24:40,186
First of all, all the documents and all
the testimony

1209
01:24:40,976 --> 01:24:46,156
show that he gave money to OpenAI for
general purposes, general charitable

1210
01:24:46,156 --> 01:24:48,126
purposes, to advance OpenAI's mission,

1211
01:24:49,036 --> 01:24:54,636
not for some specific charitable purpose.
So let's just review his contributions.

1212
01:24:55,556 --> 01:25:00,996
One thing Mr. Musk gave to the OpenAI
nonprofit was about twelve million dollars

1213
01:25:00,996 --> 01:25:06,656
from twenty sixteen to twenty twenty to
help cover rent and building expenses.

1214
01:25:06,656 --> 01:25:12,096
This was the money that Mr. Musk, you
heard, contributed so that OpenAI could,

1215
01:25:12,096 --> 01:25:16,536
uh, turn around and cover Mr. Musk's lease
payments on the building that housed

1216
01:25:16,536 --> 01:25:17,696
OpenAI and Neuralink.

1217
01:25:19,116 --> 01:25:21,456
And these rent and building payments,

1218
01:25:22,616 --> 01:25:27,556
they do not meet the test for a charitable
trust. Some of them are specific

1219
01:25:28,156 --> 01:25:33,628
insofar as they are earmarked for rent.But
that's not a specific charitable purpose,

1220
01:25:33,628 --> 01:25:38,628
right? That's, that's... A specific
charitable purpose is something like

1221
01:25:38,628 --> 01:25:42,848
donating to a hospital to support medical
research on a particular disease.

1222
01:25:43,828 --> 01:25:46,788
It's not rent or salaries or office
supplies.

1223
01:25:47,728 --> 01:25:48,608
Those are for general,

1224
01:25:49,368 --> 01:25:51,568
general use by, by the nonprofit.

1225
01:25:54,108 --> 01:25:54,988
Next, um,

1226
01:25:55,608 --> 01:25:56,228
Mr. Musk

1227
01:25:58,788 --> 01:26:04,588
gave the Teslas, the four Teslas in 2017,
um, and he took tax deductions for those

1228
01:26:05,648 --> 01:26:07,648
as charitable donations to the nonprofit.

1229
01:26:08,308 --> 01:26:12,488
You heard that what they were really for,
um, Musk gave them as bonuses to four

1230
01:26:12,488 --> 01:26:14,488
employees, including Greg Brockman

1231
01:26:15,108 --> 01:26:15,948
and Ilya Sutskever,

1232
01:26:16,708 --> 01:26:21,928
um, right as the conversation about
pivoting to a for-profit OpenAI began.

1233
01:26:23,268 --> 01:26:24,708
And as the negotiations

1234
01:26:25,528 --> 01:26:27,768
over the new OpenAI for-profit

1235
01:26:28,468 --> 01:26:29,248
heated up a bit,

1236
01:26:30,368 --> 01:26:34,408
Mr. Musk rushed the production of those
cars to soften up Bro- Brockman and

1237
01:26:34,408 --> 01:26:38,848
Sutskever, so that they would accept the
terms that he wanted. And you, you

1238
01:26:38,848 --> 01:26:40,128
remember this text message,

1239
01:26:41,068 --> 01:26:42,208
this exchange, uh,

1240
01:26:43,228 --> 01:26:48,428
from, from Dr. Sutskever, "At least we're
getting our Teslas. Will a Model 3 make

1241
01:26:48,428 --> 01:26:52,368
you willing to accept massively
unfavorable terms?" And you'll recall Greg

1242
01:26:52,368 --> 01:26:59,208
Brockman testified that's the day that
Elon Musk proposed 62.5% of the

1243
01:26:59,208 --> 01:27:00,828
new for-profit would belong to him.

1244
01:27:03,648 --> 01:27:08,348
But let, let's say for a moment that the
Teslas count as charitable donations to

1245
01:27:08,348 --> 01:27:08,818
OpenAI.

1246
01:27:10,008 --> 01:27:13,108
Um, they still don't meet the charitable
trust test

1247
01:27:13,728 --> 01:27:18,128
because as with the rent payments, there
was no specific charitable purpose here.

1248
01:27:18,128 --> 01:27:18,648
There was no...

1249
01:27:19,428 --> 01:27:24,008
They, they were to specific employees, not
specific charitable purposes.

1250
01:27:25,448 --> 01:27:30,728
So to the extent the Tesla gifts were
charitable at all, they were for general

1251
01:27:30,728 --> 01:27:31,248
purposes.

1252
01:27:32,548 --> 01:27:34,468
So that leaves the $25 million

1253
01:27:35,128 --> 01:27:39,648
in quarterly donations that Mr. Musk gave
the OpenAI nonprofit starting in

1254
01:27:42,588 --> 01:27:48,128
final payment gets actually gone through
in June 2017. You saw that from Mr. Dudni.

1255
01:27:48,128 --> 01:27:55,128
These don't meet the charitable trust
test either. They were all given

1256
01:27:55,128 --> 01:27:58,768
for OpenAI's general purposes and not for
restricted purposes.

1257
01:27:59,648 --> 01:28:00,507
The documents show it.

1258
01:28:01,768 --> 01:28:07,588
Here are the Form 990s, the tax reports
that OpenAI filed every year, in which it

1259
01:28:07,588 --> 01:28:10,268
had to disclose whether it had any
restricted assets.

1260
01:28:10,948 --> 01:28:12,948
You see those boxes are all blank

1261
01:28:13,568 --> 01:28:16,308
because OpenAI had no restricted assets to
report.

1262
01:28:18,388 --> 01:28:19,388
Here are the letters

1263
01:28:20,028 --> 01:28:24,368
from Mr. Musk's donor-advised funds, the
entities that actually paid the gifts to

1264
01:28:24,368 --> 01:28:24,928
OpenAI.

1265
01:28:25,668 --> 01:28:31,028
These make clear the gifts are for general
and not specific charitable purposes.

1266
01:28:33,468 --> 01:28:35,728
They're to be used for OpenAI.

1267
01:28:38,028 --> 01:28:42,608
Not a single document shows any specific
purpose for any of these quarterly

1268
01:28:42,608 --> 01:28:43,228
donations,

1269
01:28:43,868 --> 01:28:49,448
and Mr. Musk's own witnesses confirm that
there were none. Jared Birchall, the head

1270
01:28:49,448 --> 01:28:52,868
of Mr. Musk's family office and the man in
charge of his charitable giving,

1271
01:28:53,648 --> 01:28:58,228
testified Mr. Musk never told him of any
specific purposes.

1272
01:29:00,508 --> 01:29:04,108
If not the man in charge of his charitable
contributions, then who?

1273
01:29:05,688 --> 01:29:06,468
The answer is no one.

1274
01:29:08,208 --> 01:29:12,808
There were no specific charitable purposes
here, no special commitments to Mr. Musk

1275
01:29:12,808 --> 01:29:18,048
about how his money would be used. Every
one of Mr. Musk's cofounders told you

1276
01:29:18,048 --> 01:29:18,248
that.

1277
01:29:19,008 --> 01:29:23,028
Greg Brockman said it. Sam Altman said it.
Dr. Sutskever said it too.

1278
01:29:24,128 --> 01:29:25,108
Here's his testimony.

1279
01:29:26,728 --> 01:29:33,108
It was here a moment ago. Um, [laughs] he
said, "Do you recall ever conditioning

1280
01:29:33,108 --> 01:29:37,448
donations to OpenAI on the organization
remaining a nonprofit?"

1281
01:29:38,128 --> 01:29:39,888
Answer, "I have no such knowledge."

1282
01:29:41,628 --> 01:29:45,668
Even Musk's own witnesses said it, not
just Jared Birchall,

1283
01:29:46,328 --> 01:29:47,768
but his own senior advisors.

1284
01:29:48,808 --> 01:29:49,848
Here's Siobhan Sylas.

1285
01:29:51,808 --> 01:29:55,488
So you don't recall any restriction placed
on Mr. Musk's donations that required

1286
01:29:55,488 --> 01:29:59,908
OpenAI to remain nonprofit and open
source, do you? Answer, "I don't."

1287
01:30:02,548 --> 01:30:06,847
And S- Sam Teller too, the witness who,
who appeared by deposition, I think

1288
01:30:06,848 --> 01:30:07,368
yesterday.

1289
01:30:08,688 --> 01:30:12,708
As far as you know, did Mr. Musk impose
any conditions on the use of his donations

1290
01:30:12,708 --> 01:30:14,288
to OpenAI? "I don't know."

1291
01:30:15,348 --> 01:30:19,528
Did Mr. Musk ever tell you there were any
conditions on his donations to OpenAI? "I

1292
01:30:19,528 --> 01:30:20,148
don't remember."

1293
01:30:22,448 --> 01:30:23,948
All these witnesses say the same thing.

1294
01:30:24,948 --> 01:30:28,248
No specific commitments were made to Mr.
Musk.

1295
01:30:30,028 --> 01:30:30,188
And

1296
01:30:31,288 --> 01:30:32,808
you know Mr. Musk knows very well,

1297
01:30:33,868 --> 01:30:35,808
by the way, what specific

1298
01:30:36,628 --> 01:30:38,748
terms and conditions on donations look
like

1299
01:30:39,508 --> 01:30:44,068
because you remember this email that we
saw between him and Sam Altman back in

1300
01:30:44,108 --> 01:30:44,868
2016

1301
01:30:47,108 --> 01:30:51,488
asking to see the exact terms and
conditions because gifts are only as good

1302
01:30:51,488 --> 01:30:54,208
as the T and C, the terms and conditions.

1303
01:30:56,818 --> 01:31:01,488
Mr. Musk did not get terms and conditions
on his own donations. He gave them for

1304
01:31:01,488 --> 01:31:04,488
OpenAI's general purposes without
restriction.

1305
01:31:05,868 --> 01:31:06,588
And really,

1306
01:31:07,268 --> 01:31:09,068
this is where the claim should end.

1307
01:31:10,508 --> 01:31:14,568
If the donations came with no
restrictions, with no specific charitable

1308
01:31:14,568 --> 01:31:19,808
purpose, with no strings attached, then
Mr. Musk does not have a charitable trust

1309
01:31:19,808 --> 01:31:20,587
to enforce.

1310
01:31:22,808 --> 01:31:23,608
Now, Mr. Mullowe

1311
01:31:24,288 --> 01:31:27,748
spent a lot of this trial, and a lot of
his closing argument

1312
01:31:29,108 --> 01:31:34,128
focused not on specific charitable
purposes, but on OpenAI's general purposes

1313
01:31:34,128 --> 01:31:40,208
and missionHe asked witness after witness
about the original certificate of

1314
01:31:40,208 --> 01:31:41,948
incorporation for the nonprofit.

1315
01:31:43,388 --> 01:31:48,168
He asked about that blog post introducing
OpenAI, which launched the company.

1316
01:31:49,268 --> 01:31:53,968
He asked about the charter that OpenAI
published in twenty eighteen on its

1317
01:31:53,968 --> 01:31:55,968
website after Mr. Musk left

1318
01:31:56,568 --> 01:31:57,088
the company.

1319
01:31:58,428 --> 01:32:00,728
Mr. Musk-- or Mr. Mullo also showed you

1320
01:32:01,428 --> 01:32:03,948
emails from before OpenAI was founded

1321
01:32:04,988 --> 01:32:07,847
that are talking about what the mission
will be

1322
01:32:08,568 --> 01:32:09,948
and how it'll be structured.

1323
01:32:11,598 --> 01:32:11,738
And

1324
01:32:12,748 --> 01:32:18,588
remember Mr. Mullo asked you in opening as
the very first question that you should

1325
01:32:18,588 --> 01:32:20,088
ask yourselves and answer,

1326
01:32:21,228 --> 01:32:23,468
did OpenAI have a charitable mission

1327
01:32:24,188 --> 01:32:29,768
to operate as a nonprofit to develop safe
AI open source for the good of humanity?

1328
01:32:30,708 --> 01:32:31,528
That was his question.

1329
01:32:32,828 --> 01:32:33,908
That is the wrong question,

1330
01:32:34,608 --> 01:32:37,128
and these are the wrong documents that
he's focused on.

1331
01:32:37,948 --> 01:32:43,408
Because even if OpenAI had somehow
violated its general charitable purposes,

1332
01:32:43,408 --> 01:32:44,328
and we will get to that,

1333
01:32:45,168 --> 01:32:50,028
it did not, it has not violated its
general charitable purposes. But even if

1334
01:32:50,028 --> 01:32:50,538
it had,

1335
01:32:52,468 --> 01:32:54,968
that wouldn't give Elon Musk a right to
sue.

1336
01:32:57,708 --> 01:33:03,228
If a private person wants to sue a
nonprofit, he has to show that he properly

1337
01:33:03,228 --> 01:33:07,408
manifested an intent to further a
specific charitable purpose,

1338
01:33:08,268 --> 01:33:09,348
and there's nothing like that here.

1339
01:33:10,488 --> 01:33:14,608
It is not enough to point to general
mission statements.

1340
01:33:15,908 --> 01:33:17,468
So where does that leave Mr. Musk?

1341
01:33:18,908 --> 01:33:19,048
Um,

1342
01:33:19,728 --> 01:33:19,928
well,

1343
01:33:23,068 --> 01:33:23,288
he

1344
01:33:23,988 --> 01:33:26,688
has to try to argue that you can infer

1345
01:33:27,928 --> 01:33:33,088
an intention to have the donations applied
only to specific purposes rather than for

1346
01:33:33,088 --> 01:33:36,168
OpenAI's general purposes. That has to be
the argument.

1347
01:33:38,308 --> 01:33:38,468
And

1348
01:33:40,688 --> 01:33:42,738
the restrictions, it seems, can be,

1349
01:33:43,368 --> 01:33:45,348
the argument seems to be, can be implied

1350
01:33:47,048 --> 01:33:48,288
not from any contract,

1351
01:33:49,088 --> 01:33:49,568
not from

1352
01:33:50,248 --> 01:33:51,428
specific things written down,

1353
01:33:52,068 --> 01:33:54,848
but from discussions and interactions
generally.

1354
01:33:56,388 --> 01:34:00,788
And to be clear, this is coming from a man
who, who told you

1355
01:34:02,148 --> 01:34:03,088
he's so literal

1356
01:34:04,088 --> 01:34:08,148
you never need to read between the lines
with him. This is what Mr. Musk says about

1357
01:34:08,148 --> 01:34:08,668
himself,

1358
01:34:10,268 --> 01:34:13,368
that if he wants to say something, he says
it clearly.

1359
01:34:14,348 --> 01:34:15,568
You don't have that in this case.

1360
01:34:17,648 --> 01:34:21,648
You have an argument about what can be
implied from course of dealings.

1361
01:34:24,988 --> 01:34:25,138
And

1362
01:34:27,088 --> 01:34:31,408
you have an argument that everything that
happened was between the lines.

1363
01:34:32,588 --> 01:34:36,468
But what's between the lines is really, as
the evidence has shown, it's just blank.

1364
01:34:39,308 --> 01:34:42,908
The, the, the restrictions that are at
issue here

1365
01:34:44,148 --> 01:34:44,928
that seem to be

1366
01:34:47,388 --> 01:34:48,328
what are being advanced

1367
01:34:49,368 --> 01:34:49,888
is first

1368
01:34:51,388 --> 01:34:57,568
that any OpenAI for-profit would only ever
fund the nonprofit, right? Like a museum

1369
01:34:57,568 --> 01:35:02,428
store. Uh, that seems to be the argument,
that that restriction was imposed

1370
01:35:02,428 --> 01:35:07,408
implicitly through the dealings between
Mr. Musk, Mr. Brockman, Mr. Altman, and

1371
01:35:07,408 --> 01:35:07,837
OpenAI.

1372
01:35:08,938 --> 01:35:09,418
And second,

1373
01:35:10,048 --> 01:35:14,528
that OpenAI would open source all of its
technology absent safety concerns. Or as

1374
01:35:14,528 --> 01:35:20,208
we heard today, I think for the first
time, uh, if it's practical and reasonable

1375
01:35:20,208 --> 01:35:22,148
to open source. So that's the new
restriction.

1376
01:35:24,748 --> 01:35:25,688
As we will review,

1377
01:35:27,088 --> 01:35:31,688
the evidence does not remotely show either
of these things. And I'm not just

1378
01:35:31,688 --> 01:35:35,048
talking, by the way, about the direct
evidence, the circumstantial evidence.

1379
01:35:35,048 --> 01:35:36,628
There's nothing here.

1380
01:35:37,728 --> 01:35:39,508
And keep in mind, as we're talking about

1381
01:35:40,608 --> 01:35:42,988
this, these, these implied restrictions,

1382
01:35:44,428 --> 01:35:48,708
Mr. Musk has to show again that he
communicated, that he intended to impose

1383
01:35:48,708 --> 01:35:53,568
an enforceable obligation to devote the
trust property to the specific purposes

1384
01:35:53,568 --> 01:35:54,358
he's now claiming.

1385
01:35:55,458 --> 01:35:57,747
The specific purposes cannot just be in
his head.

1386
01:35:59,448 --> 01:36:01,728
And if the purposes aren't spelled out in
writing,

1387
01:36:02,808 --> 01:36:06,528
then Musk has to prove the existence of
the terms of an oral trust

1388
01:36:07,228 --> 01:36:09,088
by clear and convincing evidence.

1389
01:36:10,488 --> 01:36:14,588
So keep those instructions in mind as
we're reviewing the documents and the

1390
01:36:14,588 --> 01:36:17,288
witness testimony from the early years of
OpenAI.

1391
01:36:18,028 --> 01:36:19,308
But under any standard,

1392
01:36:20,808 --> 01:36:25,248
Mr. Musk comes nowhere near proving these
restrictions he says were somehow mapped

1393
01:36:25,248 --> 01:36:26,228
onto his donations.

1394
01:36:28,588 --> 01:36:29,708
Let's start with the first

1395
01:36:30,368 --> 01:36:32,808
alleged implied restriction, which

1396
01:36:33,788 --> 01:36:38,768
again supposedly limits the size and kind
of for-profit that OpenAI can have.

1397
01:36:39,688 --> 01:36:41,068
And y- you may have noticed

1398
01:36:41,688 --> 01:36:45,028
that I'm str- struggling a bit to
articulate quite what this restriction is

1399
01:36:45,028 --> 01:36:48,768
supposed to be because it has been a
moving target throughout this trial.

1400
01:36:50,388 --> 01:36:50,528
Um,

1401
01:36:51,268 --> 01:36:56,708
early in the trial, Mr. Musk suggested the
only for-profit that OpenAI could create

1402
01:36:56,708 --> 01:37:01,328
was a small adjunct to the nonprofit. In
fact, Mr. Musk said it twice in the space

1403
01:37:01,328 --> 01:37:01,828
of a minute.

1404
01:37:03,348 --> 01:37:05,748
But no document anywhere uses that term.

1405
01:37:06,378 --> 01:37:10,868
No one had ever heard about this small
adjunct before this trial.

1406
01:37:11,788 --> 01:37:13,458
Greg Brockman testified

1407
01:37:14,608 --> 01:37:18,327
about that. I literally never heard those
words really until the beginning of this

1408
01:37:18,328 --> 01:37:18,668
trial.

1409
01:37:19,968 --> 01:37:20,808
Ilya Sutskever

1410
01:37:21,408 --> 01:37:22,008
said the same.

1411
01:37:23,328 --> 01:37:26,528
Do you ever hear him say that any
for-profit must be a small adjunct to the

1412
01:37:26,528 --> 01:37:27,848
nonprofit? No.

1413
01:37:30,228 --> 01:37:34,568
And the phrase, in fact, is such a novelty
that when we used it in questioning Mr.

1414
01:37:34,568 --> 01:37:38,908
Brockman, you'll remember Mr. Mullo stood
up and said, accused us of making up the

1415
01:37:38,908 --> 01:37:41,448
term. The judge had to instruct you

1416
01:37:42,168 --> 01:37:49,136
that, in fact, that wasn't the case.That
in

1417
01:37:49,136 --> 01:37:50,696
fact, this phrase came

1418
01:37:51,456 --> 01:37:53,516
from Mr. Musk. It's the theory of his
case.

1419
01:37:54,156 --> 01:37:56,856
But it's been phrased differently
throughout this trial.

1420
01:37:57,756 --> 01:38:01,876
Um, now the for-profit has to be
subservient to the nonprofit,

1421
01:38:02,556 --> 01:38:04,836
or it can only fund the nonprofit,

1422
01:38:05,616 --> 01:38:09,396
or sometimes it has to have a profit cap.
Those are the things we've heard.

1423
01:38:11,516 --> 01:38:11,676
And

1424
01:38:13,056 --> 01:38:14,856
it doesn't really matter how you frame it
though,

1425
01:38:15,556 --> 01:38:17,656
members of the jury. It is all made up.

1426
01:38:19,376 --> 01:38:20,336
And how do you know that?

1427
01:38:21,636 --> 01:38:24,356
You know it the same way that a diligent
accountant

1428
01:38:25,096 --> 01:38:27,776
decides what taxes are owed. You check the
records.

1429
01:38:28,536 --> 01:38:32,556
The same way that a healthcare provider
decides what medication to prescribe,

1430
01:38:33,296 --> 01:38:35,946
what the history of the patient is, you
check the records.

1431
01:38:37,086 --> 01:38:38,276
So let's look at the records.

1432
01:38:39,076 --> 01:38:43,716
And let's start with Mr. Musk's own
statements around the time that OpenAI was

1433
01:38:43,716 --> 01:38:48,436
formed and in its early years, even
before the for-profit negotiations began.

1434
01:38:49,955 --> 01:38:50,815
You will recall

1435
01:38:51,636 --> 01:38:57,356
that Sam Altman and Greg Brockman had the
idea to set up the new AI lab as a

1436
01:38:57,356 --> 01:39:03,636
nonprofit. It, it was going to be a
nonprofit arm of Y Combinator. That was

1437
01:39:03,636 --> 01:39:04,876
Mr. Brockman's testimony.

1438
01:39:05,656 --> 01:39:05,736
And

1439
01:39:06,976 --> 01:39:07,516
that's where

1440
01:39:08,196 --> 01:39:10,096
Sam Altman was president at the time.

1441
01:39:11,236 --> 01:39:14,796
And when he heard about this structure,
Mr. Musk thought it was not optimal,

1442
01:39:15,916 --> 01:39:17,096
that a better structure

1443
01:39:17,776 --> 01:39:21,316
would be a C corp with a parallel
nonprofit.

1444
01:39:21,916 --> 01:39:23,296
Not a small, small adjunct

1445
01:39:24,016 --> 01:39:29,216
for-profit, not an engine to fund the
nonprofit, but a standard for-profit with

1446
01:39:29,216 --> 01:39:30,716
a parallel nonprofit.

1447
01:39:32,136 --> 01:39:37,646
And now Mr. Musk did ultimately agree with
Sam Altman that a pure play

1448
01:39:38,296 --> 01:39:44,036
nonprofit structure made sense to start.
And we've talked about this email.

1449
01:39:45,076 --> 01:39:47,636
Mr. Molla showed it to you again earlier
today.

1450
01:39:48,676 --> 01:39:49,776
He didn't show you the one

1451
01:39:50,556 --> 01:39:56,076
a year later when Mr. Musk doubted whether
a nonprofit had been the right call.

1452
01:39:58,436 --> 01:40:03,116
"I'm concerned," he writes, "that OpenAI
is not on a path to catch up. Setting it

1453
01:40:03,116 --> 01:40:06,216
up as a nonprofit might, in hindsight,
have been the wrong move."

1454
01:40:10,156 --> 01:40:11,936
And he didn't show you the texts

1455
01:40:12,656 --> 01:40:13,756
from 2017

1456
01:40:14,656 --> 01:40:15,396
where Mr. Musk,

1457
01:40:16,236 --> 01:40:20,256
um, Mr. Brockman's reporting to Siobhan
Zillis a conversation he had with Mr.

1458
01:40:20,256 --> 01:40:20,616
Musk,

1459
01:40:21,396 --> 01:40:24,576
where Mr. Musk said he thought a change
from the nonprofit structure

1460
01:40:25,396 --> 01:40:25,856
was needed.

1461
01:40:28,036 --> 01:40:30,736
Now, there is not a word in any of these
documents

1462
01:40:31,856 --> 01:40:37,455
or any others from Mr. Musk's time with
OpenAI about any restrictions on the kind

1463
01:40:37,456 --> 01:40:39,485
of for-profit that OpenAI could consider.

1464
01:40:40,816 --> 01:40:44,736
Just a repeated thought from Mr. Musk that
maybe a for-profit

1465
01:40:44,796 --> 01:40:45,536
would work better.

1466
01:40:47,876 --> 01:40:52,496
Then let's look at what the records do
show about a potential for-profit.

1467
01:40:53,536 --> 01:40:57,056
And that brings us to 2017. In mid-2017,

1468
01:40:58,216 --> 01:41:02,596
as they were working on the Dota 1v1
project that you heard about, that video

1469
01:41:02,596 --> 01:41:02,836
game,

1470
01:41:03,716 --> 01:41:08,876
Greg Brockman and Ilya Sutskever started
realizing that way, way more money was

1471
01:41:08,876 --> 01:41:15,816
gonna be needed to further the mission of
building beneficial AGI because way,

1472
01:41:15,816 --> 01:41:18,916
way more compute, this computing power,

1473
01:41:19,576 --> 01:41:22,876
was going to be needed than was initially
contemplated.

1474
01:41:24,056 --> 01:41:24,936
And everyone,

1475
01:41:25,896 --> 01:41:31,236
everyone including Mr. Musk, agreed that
donations to a nonprofit would not suffice

1476
01:41:31,236 --> 01:41:32,316
to fund the mission.

1477
01:41:33,316 --> 01:41:35,376
More was needed, billions were needed,

1478
01:41:36,216 --> 01:41:38,536
and it would require a pivot to a
for-profit,

1479
01:41:40,136 --> 01:41:41,176
at least in part.

1480
01:41:42,436 --> 01:41:45,636
And here's Mr. Musk in July 2017
suggesting

1481
01:41:46,776 --> 01:41:51,336
it's time to change course. He says,
"Maybe another reason to change course."

1482
01:41:51,336 --> 01:41:53,396
You saw this email after, um,

1483
01:41:54,036 --> 01:41:56,056
i- in connection with him circulating
that,

1484
01:41:56,696 --> 01:42:01,576
uh, article about China's advances in AI,
and he writes to his co-founders.

1485
01:42:02,276 --> 01:42:04,496
He also writes, "I have a tentative game
plan."

1486
01:42:06,256 --> 01:42:08,466
And you heard testimony from Mr. Brockman
about

1487
01:42:09,176 --> 01:42:11,356
what that tentative game plan turned out
to be.

1488
01:42:12,416 --> 01:42:14,416
He met up with Mr. Musk after this email

1489
01:42:15,176 --> 01:42:16,236
to discuss the plan,

1490
01:42:16,956 --> 01:42:22,436
and the idea that Mr. Musk shared was they
would change to a for-profit once OpenAI

1491
01:42:22,436 --> 01:42:23,196
had a big win.

1492
01:42:25,076 --> 01:42:26,576
Then they did have that big win.

1493
01:42:27,356 --> 01:42:28,256
About three weeks later,

1494
01:42:29,356 --> 01:42:34,336
OpenAI's Dota 2 technology beat the
world's best human at the 1v1 version of

1495
01:42:34,336 --> 01:42:34,706
the game,

1496
01:42:35,556 --> 01:42:38,576
and the win was a huge milestone for
OpenAI.

1497
01:42:40,756 --> 01:42:41,416
The next day,

1498
01:42:42,056 --> 01:42:42,556
Brockman,

1499
01:42:43,456 --> 01:42:43,956
Sutskever,

1500
01:42:44,656 --> 01:42:45,536
Siobhan Zillis,

1501
01:42:46,736 --> 01:42:50,475
they were all at the tournament, the Dota
tournament in Seattle. They flew back to

1502
01:42:50,476 --> 01:42:54,456
the Bay Area for a meeting at the haunted
mansion that Mr. Musk had just bought.

1503
01:42:55,796 --> 01:42:56,836
And for Mr. Musk,

1504
01:42:57,856 --> 01:43:01,516
the Dota win was the triggering event.
This was the triggering event.

1505
01:43:03,616 --> 01:43:07,836
You heard what was discussed at the
meeting on August 12, 2017. Now, Mr. Musk

1506
01:43:07,836 --> 01:43:09,286
claimed he couldn't remember,

1507
01:43:11,356 --> 01:43:15,766
but as he apparently did not realize until
this trial, Siobhan Zillis was taking

1508
01:43:15,766 --> 01:43:16,176
notes,

1509
01:43:17,436 --> 01:43:19,426
and those notes tell you what you need to
know.

1510
01:43:20,986 --> 01:43:25,556
"Switch to for-profit in next couple of
weeks. Whoa, fast."

1511
01:43:26,976 --> 01:43:31,216
A little further down, "Keep a subset of
people at OpenAI nonprofit."

1512
01:43:33,416 --> 01:43:35,716
The bulk of the people were gonna go to
the for-profit.

1513
01:43:37,516 --> 01:43:42,236
Now, from August 12th, 2017, and in, uh,
over the next six weeks or so,

1514
01:43:43,096 --> 01:43:47,376
Mr. Musk and his co-founders engaged in
what Greg Brockman and Ilya Sutskever

1515
01:43:47,376 --> 01:43:50,516
described as the most high-stakes

1516
01:43:51,476 --> 01:43:57,628
negotiation they'd ever had.And you recall
Mr. Brockman walked you through the ups

1517
01:43:57,628 --> 01:44:03,007
and downs of those six intense weeks, the
negotiations with Mr. Musk over equity

1518
01:44:03,008 --> 01:44:09,288
splits and control and who was going to be
CEO, and the go-forward corporate

1519
01:44:09,288 --> 01:44:09,808
structure.

1520
01:44:12,228 --> 01:44:15,828
These were not discussions about a small
for-profit

1521
01:44:16,588 --> 01:44:21,988
or a for-profit that would exist simply to
fund the nonprofit, like a museum store.

1522
01:44:21,988 --> 01:44:24,778
They were about a switch to a for-profit.

1523
01:44:27,007 --> 01:44:27,437
You saw

1524
01:44:28,088 --> 01:44:28,788
the documents,

1525
01:44:29,928 --> 01:44:30,657
we can move to them,

1526
01:44:32,108 --> 01:44:34,728
uh, between Mr. Musk's own staff

1527
01:44:35,628 --> 01:44:37,708
discussing the idea of a complete
conversion

1528
01:44:38,328 --> 01:44:39,948
in which the nonprofit would be shut down.

1529
01:44:42,528 --> 01:44:43,288
No, no matter

1530
01:44:44,608 --> 01:44:49,928
what Mr. M-Musk and Mr. Mollo tell you,
this was one of the options that was under

1531
01:44:49,928 --> 01:44:51,337
serious consideration.

1532
01:44:52,018 --> 01:44:53,628
The documents tell the truth here.

1533
01:44:55,728 --> 01:44:58,288
Here's, here's one of the documents we
were looking at.

1534
01:44:59,188 --> 01:45:01,508
Uh, this is DX664.

1535
01:45:02,388 --> 01:45:06,828
The two options on the table for the
operating structure. The first one, roll

1536
01:45:06,828 --> 01:45:11,568
everything into a B corp, would include
all of OpenAI. B corp is a for-profit

1537
01:45:11,568 --> 01:45:12,668
corporation, as you heard.

1538
01:45:15,488 --> 01:45:20,788
Ms. Zilis acknowledged under questioning
that converting from a nor- a nonprofit

1539
01:45:20,788 --> 01:45:22,468
was one of the options being considered.

1540
01:45:24,388 --> 01:45:26,287
Sam Teller told you the same thing.

1541
01:45:29,168 --> 01:45:29,328
And

1542
01:45:31,088 --> 01:45:33,208
there was another option being considered.

1543
01:45:34,408 --> 01:45:38,268
This was the parallel C corp while keeping
the nonprofit in place.

1544
01:45:39,308 --> 01:45:40,168
But in this structure,

1545
01:45:40,888 --> 01:45:46,308
there's no hint that the for-profit would
be subservient in these internal documents

1546
01:45:46,308 --> 01:45:47,908
among Mr. Musk and his staff.

1547
01:45:49,708 --> 01:45:53,628
These are more of Siobhan Zilis'
contemporaneous notes. They show the

1548
01:45:53,628 --> 01:45:57,448
alternative of keeping the nonprofit would
have had the main operations,

1549
01:45:58,088 --> 01:46:03,807
see at the bottom, cor-- .com, core
research and applications. .com is the

1550
01:46:03,808 --> 01:46:04,587
for-profit.

1551
01:46:05,788 --> 01:46:10,128
So the research, the core research and
applications would go to the for-profit.

1552
01:46:11,068 --> 01:46:13,448
Most of the employees would go to the
for-profit.

1553
01:46:15,868 --> 01:46:18,988
And see the note at the top of this
summary from Ms. Zilis,

1554
01:46:19,708 --> 01:46:21,408
file for C corp immediately.

1555
01:46:22,708 --> 01:46:25,988
You heard Mr. Birchall testify that he
actually went ahead and did that.

1556
01:46:29,248 --> 01:46:33,508
And you recall what Greg Brockman told you
about his discussions with Mr. Musk in

1557
01:46:33,508 --> 01:46:34,268
this time period.

1558
01:46:34,908 --> 01:46:38,268
They were planning to have the
intellectual property, the, the assets of

1559
01:46:38,268 --> 01:46:40,588
the operation, move to the for-profit,

1560
01:46:42,888 --> 01:46:43,898
and the employees as well.

1561
01:46:47,288 --> 01:46:52,148
These founders were negotiating equity
splits and control provisions, who would

1562
01:46:52,148 --> 01:46:53,008
be CEO.

1563
01:46:53,908 --> 01:46:58,688
The negotiations were intense. This was
not about a subservient for-profit arm. It

1564
01:46:58,688 --> 01:47:02,908
was about the core structure in which
OpenAI would pursue its mission going

1565
01:47:02,908 --> 01:47:03,388
forward.

1566
01:47:07,208 --> 01:47:08,708
And as witness after witness told you,

1567
01:47:09,308 --> 01:47:10,248
OpenAI's mission

1568
01:47:11,248 --> 01:47:17,568
wasn't necessarily tied to its structure
as a nonprofit. This is Ilya

1569
01:47:17,568 --> 01:47:22,688
Sutskever. The mission, he says, the
mission of OpenAI is larger than a

1570
01:47:22,688 --> 01:47:28,588
structure. The mission was and remains to
ensure that AGI benefits all of humanity.

1571
01:47:31,548 --> 01:47:32,948
You can't build AGI

1572
01:47:33,788 --> 01:47:35,488
or distribute its benefits

1573
01:47:36,848 --> 01:47:38,708
unless you have the resources to do so.

1574
01:47:39,508 --> 01:47:42,588
You've heard that from every witness,
virtually, in this case.

1575
01:47:43,388 --> 01:47:47,468
And if you can't get the research or the
resources within a pure nonprofit

1576
01:47:47,468 --> 01:47:47,948
structure,

1577
01:47:48,648 --> 01:47:50,208
then the mission collapses.

1578
01:47:51,168 --> 01:47:52,408
You have to make that change.

1579
01:47:53,628 --> 01:47:58,888
That's what all the founders, including
Mr. Musk, understood as early as 2017.

1580
01:47:59,888 --> 01:48:00,028
Um,

1581
01:48:00,708 --> 01:48:01,768
now Mr. Mollo

1582
01:48:02,428 --> 01:48:05,968
showed you-- I'm gonna show how
un-tech-savvy I am right now, but Mr.

1583
01:48:05,968 --> 01:48:06,928
Mollo showed you that--

1584
01:48:07,568 --> 01:48:10,288
the snippet from Mr. Brockman's journal

1585
01:48:11,148 --> 01:48:15,308
where he refers to the philanthropic
endeavor, and I'm gonna hold up the slide

1586
01:48:16,028 --> 01:48:16,588
that

1587
01:48:17,648 --> 01:48:19,268
Mr. uh, Mollo showed you,

1588
01:48:19,928 --> 01:48:24,528
the snippet that says, "Elon wanted OpenAI
to remain essentially philanthropic

1589
01:48:24,528 --> 01:48:26,867
endeavor."

1590
01:48:27,368 --> 01:48:29,748
Um, you heard Mr. Brockman--

1591
01:48:30,528 --> 01:48:34,068
This is a snippet from, from one of Mr.
Brockman's journal entries. And you heard

1592
01:48:34,068 --> 01:48:37,688
Mr. Brockman des-describe that
conversation with Mr. Musk.

1593
01:48:39,828 --> 01:48:43,448
He, he was taking notes, right, of what
Mr., Mr. Musk said.

1594
01:48:44,308 --> 01:48:45,428
And Mr. Brockman explained

1595
01:48:46,288 --> 01:48:46,828
that

1596
01:48:47,568 --> 01:48:52,038
what Mr. Mollo's selective quoting the
language from the, from the journal

1597
01:48:52,708 --> 01:48:56,868
was distorting, which was the
philanthropic endeavor

1598
01:48:56,928 --> 01:49:01,107
was about the re- the remaining nonprofit.
So it was in this parallel structure. He

1599
01:49:01,108 --> 01:49:02,728
was talking about philanthropic endeavor,

1600
01:49:03,628 --> 01:49:09,008
not the for-profit that they were
creating. And if you read back in the jury

1601
01:49:09,008 --> 01:49:15,478
room, this is PX one fifty-four, the
actual entry. You'll see it reads,

1602
01:49:15,478 --> 01:49:20,928
"To something which is essentially
philanthropic endeavor and is B corp or C

1603
01:49:20,928 --> 01:49:24,268
corp or something." That's the part that
was left off this slide.

1604
01:49:30,368 --> 01:49:35,768
Perhaps the clearest evidence that the
2017 discussions were not about a, a

1605
01:49:35,768 --> 01:49:38,008
vehicle just to fund the nonprofit

1606
01:49:39,008 --> 01:49:43,928
is the document that we've seen a lot in
this trial and already in my remarks to

1607
01:49:43,928 --> 01:49:46,068
you, the honest thoughts email chain.

1608
01:49:49,028 --> 01:49:53,348
Um, and here again, this is the document
that essentially ended the six weeks of

1609
01:49:53,348 --> 01:49:59,708
intense negotiations over the for-profit
structure.Greg Brockman and Ilya Sutskever

1610
01:49:59,708 --> 01:50:00,748
dra- drafted it up.

1611
01:50:01,428 --> 01:50:05,128
They previewed it for Mr. Altman, then
sent it to Mr. Musk and Mr. Altman as

1612
01:50:05,128 --> 01:50:07,488
well. And you see

1613
01:50:08,488 --> 01:50:08,828
this

1614
01:50:09,548 --> 01:50:14,347
in the, in the slide and in the document.
The current structure provides you with a

1615
01:50:14,348 --> 01:50:18,108
path where you end up with unilateral
absolute control over the AGI.

1616
01:50:18,838 --> 01:50:21,568
You stated that you don't want to control
the final AGI,

1617
01:50:22,348 --> 01:50:23,678
but during this negotiation,

1618
01:50:24,508 --> 01:50:28,228
you've shown us that absolute control is
extremely important to you.

1619
01:50:29,488 --> 01:50:32,908
Now, a-as you're considering this
document, ask yourselves,

1620
01:50:33,748 --> 01:50:38,008
are these guys talking about the risk of
this structure creating

1621
01:50:39,048 --> 01:50:43,088
an AGI dictata- dictatorship because
they're thinking about a small structure

1622
01:50:43,088 --> 01:50:47,318
just to fund an existing nonprofit,
something like a museum store?

1623
01:50:48,248 --> 01:50:53,428
No. Why, why would Mr. Musk care about who
controls the for-profit

1624
01:50:54,108 --> 01:50:56,688
if the nonprofit was the one that was
gonna be in control?

1625
01:50:58,128 --> 01:51:02,888
Why would the configuration of the
for-profit matter if the for-profit itself

1626
01:51:02,888 --> 01:51:07,508
was just going to be a small adjunct to
an existing nonprofit?

1627
01:51:08,588 --> 01:51:12,188
Why the fear about unilateral control by
Elon Musk?

1628
01:51:13,448 --> 01:51:18,048
And why would any of this matter if what
we were talking about was a museum store?

1629
01:51:19,728 --> 01:51:21,008
And the answer is that it wouldn't.

1630
01:51:21,738 --> 01:51:23,478
That's, that's not what they were
discussing.

1631
01:51:24,688 --> 01:51:28,468
What they were discussing was a structure
that would house the operations for

1632
01:51:28,468 --> 01:51:32,188
building beneficial AGI and deciding how
that AGI was used.

1633
01:51:33,828 --> 01:51:39,348
And the reason the discussions fell apart
was that Elon Musk was demanding

1634
01:51:39,348 --> 01:51:40,708
unilateral control.

1635
01:51:43,208 --> 01:51:45,988
Now, Mr. Musk says that that's not what
happened.

1636
01:51:46,988 --> 01:51:49,748
He says he just wanted short-term control

1637
01:51:51,148 --> 01:51:54,868
because he was starting to suspect that
his co-founders were up to no good.

1638
01:51:56,148 --> 01:51:58,928
But the evidence here again crushes that
argument

1639
01:51:59,748 --> 01:52:00,648
and that testimony.

1640
01:52:02,608 --> 01:52:05,168
Uh, Mr. Mulloway kept showing you this
document during the trial

1641
01:52:05,908 --> 01:52:09,588
in which Mr. Musk says he wants four out
of seven board seats,

1642
01:52:10,268 --> 01:52:12,888
so he'll unequivocally have initial
control,

1643
01:52:13,628 --> 01:52:15,468
but this will change quickly.

1644
01:52:16,308 --> 01:52:19,588
And Mr. Musk says here the rough target
would be to grow the board to twelve

1645
01:52:19,588 --> 01:52:20,768
people or even sixteen.

1646
01:52:22,008 --> 01:52:26,588
But let's pause for a moment on this
document and consider it in the context of

1647
01:52:26,588 --> 01:52:30,048
the other evidence, including the honest
thoughts email chain that we were just

1648
01:52:30,048 --> 01:52:30,548
looking at.

1649
01:52:32,028 --> 01:52:33,548
You can see from the face of this

1650
01:52:34,508 --> 01:52:35,928
that Mr. Musk is offering

1651
01:52:36,628 --> 01:52:38,767
nothing other than his word

1652
01:52:38,768 --> 01:52:41,268
about the eventual dilution of his
control.

1653
01:52:42,348 --> 01:52:46,948
He'll have a majority of the board and
unequivocal initial control, which means

1654
01:52:46,948 --> 01:52:53,068
he'll be the one deciding whether and when
new board members come on.

1655
01:52:54,288 --> 01:52:59,608
And you heard from all three of Mr. Musk's
co-founders that Mr. Musk provided no

1656
01:52:59,608 --> 01:53:03,408
guarantee, no certainty that this control
would diminish

1657
01:53:04,368 --> 01:53:05,368
as he had suggested.

1658
01:53:06,658 --> 01:53:11,368
You heard the testimony that Mr. Musk
discussed his children inheriting the

1659
01:53:11,368 --> 01:53:13,878
company, inheriting control of the
company.

1660
01:53:15,168 --> 01:53:17,408
He wanted dominion over AGI.

1661
01:53:18,648 --> 01:53:23,048
That's why this was such a high-stakes
conversation. Mr. Musk wanted total

1662
01:53:23,048 --> 01:53:26,148
control. Maybe, maybe he'd give it up over
time,

1663
01:53:26,828 --> 01:53:27,488
or maybe not,

1664
01:53:28,988 --> 01:53:31,048
but it was up to him, and that was the
problem.

1665
01:53:32,988 --> 01:53:38,228
There is not a scrap of evidence,
moreover, to support Mr. Musk's testimony

1666
01:53:38,228 --> 01:53:42,408
that the reason he wanted control was
because he doubted his co-founders' good

1667
01:53:42,408 --> 01:53:43,068
intentions.

1668
01:53:44,288 --> 01:53:48,648
Just look at Mr. Musk's own words at the
time before it became convenient to spin

1669
01:53:48,648 --> 01:53:49,548
this different story.

1670
01:53:50,268 --> 01:53:53,908
They're at the end of this email, the
same, same email that we were looking at,

1671
01:53:53,908 --> 01:53:55,188
PX-156.

1672
01:53:56,708 --> 01:53:58,648
As a closing note, he writes,

1673
01:53:59,388 --> 01:54:03,177
"I've been really impressed with the
quality of discussion with you guys on the

1674
01:54:03,177 --> 01:54:04,628
equity and board stuff.

1675
01:54:05,278 --> 01:54:07,188
I have a really good feeling about this."

1676
01:54:12,568 --> 01:54:16,927
The truth, um, as the evidence shows,

1677
01:54:17,668 --> 01:54:18,948
is that in 2017,

1678
01:54:20,088 --> 01:54:21,918
Mr. Musk wanted a for-profit OpenAI,

1679
01:54:23,008 --> 01:54:29,528
and he wanted to dominate it. The idea
that he was pushing for a nonprofit in

1680
01:54:29,528 --> 01:54:34,128
control or for a small adjunct, a
subservient for-profit, that is all made

1681
01:54:34,128 --> 01:54:34,268
up.

1682
01:54:36,208 --> 01:54:37,888
Uh, here is another piece that is made up,

1683
01:54:39,138 --> 01:54:41,848
the notion that anyone, much less Mr.
Musk,

1684
01:54:42,548 --> 01:54:44,868
even discussed profit caps in 2017.

1685
01:54:46,068 --> 01:54:46,548
No one did.

1686
01:54:47,978 --> 01:54:52,788
That was not part of the discussion with
Mr. Musk about the new for-profit, and it

1687
01:54:52,788 --> 01:54:57,108
certainly was never something that Elon
Musk said should be required.

1688
01:54:58,068 --> 01:54:59,988
Uh, Greg Brockman, you heard testify,

1689
01:55:00,968 --> 01:55:05,668
the first time he discussed the idea of
profit cap was with Josh Akiam

1690
01:55:06,548 --> 01:55:07,908
in January 2018.

1691
01:55:09,428 --> 01:55:10,048
And you remember,

1692
01:55:10,768 --> 01:55:12,968
uh, Mr. Akiam recalled that as well.

1693
01:55:14,508 --> 01:55:19,728
January 2018 is after the intense
negotiations with Musk over creating a new

1694
01:55:19,728 --> 01:55:21,588
for-profit structure had already ended.

1695
01:55:23,728 --> 01:55:29,377
No document anywhere in the record from
2017 shows a discussion of for-profit, uh,

1696
01:55:29,377 --> 01:55:31,808
uh, sorry, of profit caps with, with Mr.
Musk.

1697
01:55:32,408 --> 01:55:32,948
It didn't happen.

1698
01:55:35,868 --> 01:55:36,468
Um,

1699
01:55:37,268 --> 01:55:38,088
and let me address

1700
01:55:39,008 --> 01:55:44,248
another thing made up for this litigation.
This is the notion that the only

1701
01:55:44,248 --> 01:55:48,208
for-profit that Mr. Musk would support and
accept was one, again, where the

1702
01:55:48,208 --> 01:55:53,968
nonprofit, or sorry, the, the profits from
the for-profit would all flow to the

1703
01:55:53,968 --> 01:55:54,728
nonprofit.

1704
01:55:56,428 --> 01:55:57,448
That makes no sense.

1705
01:55:58,628 --> 01:56:04,268
If all the company's profits are flowing
to a nonprofit, then the company is not a

1706
01:56:04,268 --> 01:56:10,918
for-profit, it's a nonprofit.That's what
a, a nonprofit is. And, and you heard

1707
01:56:10,918 --> 01:56:17,658
Professor Hemel talk about this museum
store example. That's how a museum store

1708
01:56:17,658 --> 01:56:22,578
typically operates. It sells souvenirs,
proceeds from those sales go to fund the

1709
01:56:22,578 --> 01:56:24,018
nonprofit's operations.

1710
01:56:24,658 --> 01:56:28,518
The store is not a for-profit. It doesn't
have investors.

1711
01:56:29,118 --> 01:56:33,008
It doesn't have them because investors, by
definition, use their money

1712
01:56:33,758 --> 01:56:35,368
to make returns, to make profits.

1713
01:56:37,558 --> 01:56:40,948
If all the profits are going to the
nonprofit entity and not to the investors,

1714
01:56:40,948 --> 01:56:43,538
then an investor can't make a return,

1715
01:56:44,438 --> 01:56:45,598
and they won't participate,

1716
01:56:46,408 --> 01:56:46,838
period.

1717
01:56:49,358 --> 01:56:49,498
And

1718
01:56:50,218 --> 01:56:50,898
in all events,

1719
01:56:51,838 --> 01:56:56,698
a company that would flow its profits to
the nonprofit wasn't what was being

1720
01:56:56,698 --> 01:57:01,318
contemplated by Mr. Musk in his
discussions with his co-founders in 2017.

1721
01:57:02,858 --> 01:57:07,558
Musk was looking to divide up the
ownership of the new for-profit into a pie

1722
01:57:07,558 --> 01:57:09,098
that gave the biggest slice to him,

1723
01:57:10,338 --> 01:57:12,898
smaller slices to the other co-founders,

1724
01:57:13,658 --> 01:57:18,568
and a last slice to the existing
employees. And look at how they discussed

1725
01:57:18,568 --> 01:57:20,518
the equity in this for-profit.

1726
01:57:23,178 --> 01:57:25,248
Where in, in this document,

1727
01:57:25,868 --> 01:57:28,718
these documents with Mr. Musk's internal
team

1728
01:57:29,898 --> 01:57:31,798
is the nonprofit's piece supposed to

1729
01:57:32,498 --> 01:57:32,878
fit in?

1730
01:57:34,158 --> 01:57:38,798
Where do you see any profits flowing to
the nonprofit, much less all or most of

1731
01:57:38,798 --> 01:57:38,958
them?

1732
01:57:40,008 --> 01:57:40,478
Nowhere,

1733
01:57:41,478 --> 01:57:45,157
because there was no plan to fund the
nonprofit through this for-profit

1734
01:57:45,158 --> 01:57:45,598
structure.

1735
01:57:46,518 --> 01:57:48,868
You heard Mr. Brockman's testimony on
this,

1736
01:57:49,678 --> 01:57:55,418
that the plan, as Elon Musk presented it,
was if the nonprofit was going to stay,

1737
01:57:56,538 --> 01:58:00,178
it would continue to be funded flat at the
level that it was, supported by

1738
01:58:00,178 --> 01:58:05,238
donations. That's how the nonprofit was
going to stay. It wasn't gonna be funded

1739
01:58:05,238 --> 01:58:06,178
by the for-profit.

1740
01:58:09,498 --> 01:58:11,458
Um, Mr. Mollo a few times has

1741
01:58:12,438 --> 01:58:17,598
pointed you to this document during the
trial about revenues with excess c-cash

1742
01:58:17,598 --> 01:58:18,688
flowing to reserves,

1743
01:58:19,498 --> 01:58:21,988
and I mention this because

1744
01:58:22,958 --> 01:58:24,158
it's important to look at the date.

1745
01:58:26,518 --> 01:58:30,708
This is from November 2015, before OpenAI
is even founded,

1746
01:58:31,518 --> 01:58:36,298
and way before it became clear that much
more capital was needed and that a

1747
01:58:36,298 --> 01:58:38,378
for-profit pivot was required.

1748
01:58:38,978 --> 01:58:42,318
Some sort of for-profit element would be
needed.

1749
01:58:43,378 --> 01:58:47,138
That document was not about a for-profit
enterprise. It's about the nonprofit

1750
01:58:47,138 --> 01:58:47,998
generating revenue,

1751
01:58:48,758 --> 01:58:53,938
and it's roughly two years before the 2017
for-profit negotiations.

1752
01:58:57,558 --> 01:58:59,058
And by 2017,

1753
01:58:59,658 --> 01:59:02,768
Mr. Musk himself was seriously considered,
considering,

1754
01:59:03,378 --> 01:59:04,948
and even actually formed

1755
01:59:05,938 --> 01:59:11,278
a for-profit that was going to effectively
replace the nonprofit as the main event.

1756
01:59:12,018 --> 01:59:14,078
This is back in 2017. And

1757
01:59:14,858 --> 01:59:17,858
you saw the certificate. The B Corp got
formed

1758
01:59:18,938 --> 01:59:20,527
at Mr. Musk's instruction.

1759
01:59:24,298 --> 01:59:28,018
At no point during any of this did Mr.
Musk say, "Hey, wait,

1760
01:59:29,138 --> 01:59:29,858
we can't do this.

1761
01:59:30,698 --> 01:59:32,798
It would violate a commitment you made to
me."

1762
01:59:37,058 --> 01:59:41,618
So now we've looked at the records from
the 2017 for-profit negotiations.

1763
01:59:42,278 --> 01:59:46,678
No discussion of a small adjunct
for-profit or subservient for-profit, a

1764
01:59:46,678 --> 01:59:48,738
for-profit to fund the nonprofit,

1765
01:59:50,018 --> 01:59:51,638
or of any caps of any kind.

1766
01:59:53,238 --> 01:59:58,358
No possible basis from which to infer a
restriction about what an OpenAI

1767
01:59:58,358 --> 02:00:01,678
for-profit should or could be in the
future.

1768
02:00:03,238 --> 02:00:05,318
The record gets even worse for Mr. Musk

1769
02:00:06,138 --> 02:00:09,538
when you move later into 2017 and into
early 2018

1770
02:00:10,358 --> 02:00:13,458
because as the nonprofit is running out of
cash,

1771
02:00:14,658 --> 02:00:15,318
what is he doing?

1772
02:00:16,578 --> 02:00:16,878
He's

1773
02:00:17,838 --> 02:00:22,098
pushing to absorb the whole operation into
a for-profit company.

1774
02:00:24,178 --> 02:00:28,738
Remember, Mr. Musk froze his $5 million
quarterly funding in August 2017,

1775
02:00:31,198 --> 02:00:32,878
right in the middle of the negotiations.

1776
02:00:34,418 --> 02:00:40,018
He did so even though he pledged at the
outset to pay, to, to give a billion

1777
02:00:40,018 --> 02:00:40,478
dollars.

1778
02:00:42,378 --> 02:00:43,778
And by late 2017,

1779
02:00:44,558 --> 02:00:49,398
he saw his opportunity, which was to try
to pull the talent from OpenAI into Tesla

1780
02:00:49,398 --> 02:00:50,738
and build AGI there.

1781
02:00:52,458 --> 02:00:54,618
The documents tell the truth on this.

1782
02:00:55,338 --> 02:00:59,298
What they show is that Mr. Musk was
planning to build a direct competitor to

1783
02:00:59,298 --> 02:01:03,238
OpenAI, all while he was still the
co-chair of, of OpenAI.

1784
02:01:07,298 --> 02:01:12,678
He knew that OpenAI couldn't raise what it
needed to build AGI from donations alone,

1785
02:01:13,458 --> 02:01:15,198
and his co-founders had given him

1786
02:01:16,158 --> 02:01:20,878
clear signal they were not going to grant
control to him over a new for-profit.

1787
02:01:22,498 --> 02:01:27,358
So he started laying plan-- He-- And they
also gave him, by the way, clear signals,

1788
02:01:27,358 --> 02:01:31,118
as you heard from Greg Brockman, they were
not gonna give him control, new control

1789
02:01:31,118 --> 02:01:35,098
over the nonprofit either. So he was
losing his bid for control.

1790
02:01:37,438 --> 02:01:42,838
He started laying plans for Tesla AI, an
AGI lab within a for-profit car company

1791
02:01:42,838 --> 02:01:43,538
that he controlled.

1792
02:01:47,078 --> 02:01:47,658
Mr. Musk,

1793
02:01:48,418 --> 02:01:50,078
you'll recall, denied

1794
02:01:50,718 --> 02:01:52,478
trying to pursue AGI at Tesla.

1795
02:01:53,858 --> 02:01:54,998
And why did he deny that?

1796
02:01:56,318 --> 02:01:59,118
He denied it because it shows two things,

1797
02:02:00,538 --> 02:02:04,818
one that hurts his case and one that hurts
his ego and his case.

1798
02:02:05,718 --> 02:02:11,498
The thing that hurts Mr. Musk's case is
that his push to merge OpenAI into Tesla

1799
02:02:11,498 --> 02:02:17,434
shows he never cared about the nonprofit
structure or about open sourcing.What he

1800
02:02:17,434 --> 02:02:18,594
cared about was winning.

1801
02:02:20,334 --> 02:02:23,824
Musk thought the best chance of winning,
of beating Google DeepMind,

1802
02:02:24,494 --> 02:02:26,654
was to go build AGI within Tesla,

1803
02:02:27,634 --> 02:02:29,034
where he could do it in secret,

1804
02:02:30,074 --> 02:02:33,114
funded by shareholders who wouldn't be
clued into what he was doing.

1805
02:02:34,414 --> 02:02:37,094
Remember, Mr. Brockman testified about
those conversations.

1806
02:02:39,214 --> 02:02:40,614
You heard Josh Ackham

1807
02:02:41,434 --> 02:02:45,954
tell you about that last address that Musk
gave to all OpenAI employees in February

1808
02:02:45,954 --> 02:02:50,034
twenty eighteen as he's leaving the
company to go pursue AGI at Tesla.

1809
02:02:51,694 --> 02:02:52,874
It was all about the race.

1810
02:02:54,274 --> 02:02:57,714
It was the opposite of open source and
nonprofit.

1811
02:02:59,874 --> 02:03:02,854
The nonprofit would disappear at most.

1812
02:03:03,594 --> 02:03:07,294
OpenAI would become a B corp subsidiary of
Tesla.

1813
02:03:08,154 --> 02:03:09,994
You saw those text messages from

1814
02:03:10,974 --> 02:03:12,854
Siobhan Zillis to, to Sam Altman.

1815
02:03:14,934 --> 02:03:19,614
"You think through a B corp subsidiary of
Tesla," she says. That's a for-profit

1816
02:03:19,614 --> 02:03:21,494
subsidiary of another for-profit.

1817
02:03:24,754 --> 02:03:30,234
Now, the second reason that, that Mr. Musk
can't admit the existence of Tesla AI,

1818
02:03:32,374 --> 02:03:38,974
this plan to go pursue AGI at Tesla to
recruit the top talent at OpenAI to do

1819
02:03:38,974 --> 02:03:42,154
what OpenAI was doing but in secret and
well-funded,

1820
02:03:43,434 --> 02:03:45,334
is that it's evidence of Mr. Musk's
failure.

1821
02:03:46,434 --> 02:03:48,354
He tried to compete with OpenAI.

1822
02:03:49,034 --> 02:03:51,454
He recruited Andrej Karpathy from OpenAI,

1823
02:03:52,394 --> 02:03:55,094
then he tasked him with heading up the new
AGI lab.

1824
02:03:56,474 --> 02:03:59,734
Mr. Musk then left OpenAI to pursue Tesla
AI.

1825
02:04:00,894 --> 02:04:03,434
He tried to recruit more people from
OpenAI.

1826
02:04:04,914 --> 02:04:08,054
Thought even, as you saw, about recruiting
Ilya Sutskever.

1827
02:04:08,794 --> 02:04:10,294
He and Siobhan Zillis discussed that.

1828
02:04:12,474 --> 02:04:15,974
He tried to build the AGI lab within
Tesla, and it failed.

1829
02:04:17,514 --> 02:04:19,574
Mr. Musk does not want to admit that.

1830
02:04:21,134 --> 02:04:25,713
But the documents here do tell the true
story, and so does Siobhan Zillis now.

1831
02:04:26,474 --> 02:04:27,394
You saw her on the stand.

1832
02:04:28,834 --> 02:04:34,354
Musk, Tesla AI plan would have seen the
end of the OpenAI nonprofit as a

1833
02:04:34,354 --> 02:04:40,654
significant organization. It would have
seen the end of any openness in OpenAI.

1834
02:04:41,654 --> 02:04:42,234
Everything

1835
02:04:42,994 --> 02:04:43,854
would have been buried.

1836
02:04:45,434 --> 02:04:49,874
See the advantages of burying this in
Tesla for stealth advantage.

1837
02:04:53,774 --> 02:04:55,134
And Ms. Zillis is saying

1838
02:04:55,834 --> 02:04:58,574
that Greg Brockman and Ilya Sutskever,

1839
02:04:59,254 --> 02:05:00,114
Sam Altman, they're not

1840
02:05:00,974 --> 02:05:02,454
naturally hardwired

1841
02:05:03,054 --> 02:05:04,094
as maneuverers.

1842
02:05:05,314 --> 02:05:08,253
That's why they're resisting the Tesla AI
plan.

1843
02:05:13,074 --> 02:05:19,274
So let me turn now to one last category of
records of, of evidence that Elon Musk

1844
02:05:19,274 --> 02:05:19,934
never thought,

1845
02:05:21,234 --> 02:05:26,174
and no one ever gave him reason to think,
that the only for-profit that OpenAI could

1846
02:05:26,174 --> 02:05:28,514
create was one that merely funded the
nonprofit.

1847
02:05:29,354 --> 02:05:34,414
That evidence is about the creation of
OpenAI's for-profit subsidiary in twenty

1848
02:05:34,414 --> 02:05:34,874
eighteen.

1849
02:05:36,914 --> 02:05:41,794
You saw Mr. Musk knew there was a plan to
do this even while he was getting ready to

1850
02:05:41,794 --> 02:05:44,313
leave OpenAI. So this is February twenty
eighteen.

1851
02:05:44,914 --> 02:05:47,174
This is Ms. Zillis emailing Sam Teller,

1852
02:05:47,834 --> 02:05:52,894
Mr. Musk's chief of staff, in February
twenty eighteen, reporting Sam Altman's

1853
02:05:52,894 --> 02:05:58,214
plans to possibly have a traditional
equity offering as a for-profit or B corp.

1854
02:05:58,214 --> 02:06:01,674
Here's some more

1855
02:06:02,634 --> 02:06:05,874
emails from March and April of twenty
eighteen.

1856
02:06:07,054 --> 02:06:07,814
In the first one,

1857
02:06:08,494 --> 02:06:11,854
Ms. Zillis says Altman is thinking through
an instrument where f-- the four to five

1858
02:06:11,854 --> 02:06:16,374
large corporates who are interested can
invest with a return capped at fifty x

1859
02:06:17,054 --> 02:06:20,794
if OpenAI does get some semblance of
money-making AGI.

1860
02:06:22,594 --> 02:06:26,354
And further update on, in April, Mr.
Musk's response,

1861
02:06:27,224 --> 02:06:27,914
"Okay by me."

1862
02:06:31,554 --> 02:06:33,574
You also saw the four-page term sheet

1863
02:06:35,074 --> 02:06:37,014
that has featured so prominently in this
case

1864
02:06:38,033 --> 02:06:41,634
that Mr. Altman shared with Mr. Musk in
August of twenty eighteen.

1865
02:06:42,774 --> 02:06:48,054
Mr. Altman met with Mr. Musk at the Tesla
building on Deer Creek Road to discuss the

1866
02:06:48,054 --> 02:06:48,584
term sheet,

1867
02:06:49,314 --> 02:06:50,394
an earlier draft of it.

1868
02:06:51,214 --> 02:06:52,854
Mr. Altman testified to this.

1869
02:06:53,954 --> 02:06:58,154
Ms. Zillis confirmed that meeting
happened, you'll recall.

1870
02:06:59,814 --> 02:07:05,354
And then when Mr. Altman sent the term
sheet to Mr. Musk, Musk's staff analyzed

1871
02:07:05,354 --> 02:07:09,774
it in detail. Both Siobhan Zillis and
Jared Birchall examined the term sheet.

1872
02:07:12,554 --> 02:07:14,334
So what does the term sheet show? It--

1873
02:07:16,134 --> 02:07:19,014
This is a, this is a capped subsidiary i-
idea that was

1874
02:07:19,754 --> 02:07:21,954
generated by OpenAI, not by Mr. Musk.

1875
02:07:24,314 --> 02:07:29,194
It, it wasn't his idea. So it had-- it was
different from the for-profit structures

1876
02:07:29,194 --> 02:07:31,974
that were being discussed in twenty
seventeen with Mr. Musk.

1877
02:07:33,674 --> 02:07:33,854
And

1878
02:07:34,814 --> 02:07:39,334
here, instead of splitting all the profits
among the founders and employees, the

1879
02:07:39,334 --> 02:07:44,053
nonprofit itself would get a slice. It
would get a capped profit interest in

1880
02:07:44,054 --> 02:07:46,374
return for transferring the value of its
IP,

1881
02:07:47,174 --> 02:07:50,974
and it would get what's called what you
heard discussed as the residual interest,

1882
02:07:50,974 --> 02:07:55,054
any profits exceeding what the investors
would make once they met their caps.

1883
02:07:56,854 --> 02:07:59,374
But even though there were these caps,

1884
02:08:02,954 --> 02:08:09,854
it was absolutely clear that the idea was
to attract private investors hoping to

1885
02:08:09,854 --> 02:08:12,534
make returns in the form of profits. That,
that was clear.

1886
02:08:13,214 --> 02:08:16,514
There would be hundreds of millions of
dollars raised initially,

1887
02:08:17,454 --> 02:08:18,204
and investors

1888
02:08:18,934 --> 02:08:23,822
would, as you see in the term sheet here,
get a hundred xThat's what they would hope

1889
02:08:23,822 --> 02:08:28,142
to, to make. They would get a hundred X
of their investment back if excess

1890
02:08:28,142 --> 02:08:31,602
revenues were generated. That's a profit.
That's a huge one.

1891
02:08:32,392 --> 02:08:33,302
It's, it's math.

1892
02:08:34,442 --> 02:08:39,042
We're talking about fifty billion in
profits being paid to private investors.

1893
02:08:40,302 --> 02:08:42,812
And then there's the employee pool,
meaning the equity

1894
02:08:43,562 --> 02:08:45,072
that the employees would get,

1895
02:08:46,082 --> 02:08:48,122
hundred billion capped target redemption.

1896
02:08:49,542 --> 02:08:50,952
And then there's the second fundraise

1897
02:08:51,742 --> 02:08:53,642
already predicted and planned

1898
02:08:54,362 --> 02:08:58,122
as of twenty eighteen in the term sheet
that Mr. Musk sees,

1899
02:08:59,062 --> 02:09:00,222
more than ten billion

1900
02:09:01,342 --> 02:09:04,582
with a fifteen x, fifteen times

1901
02:09:05,202 --> 02:09:07,462
expected target redemption.

1902
02:09:09,862 --> 02:09:11,542
Now, Mr. Musk claims today

1903
02:09:12,642 --> 02:09:18,022
that the ten billion dollar raise from
Microsoft in January twenty twenty-three,

1904
02:09:18,022 --> 02:09:19,942
that's what gave him the basis for his
claim here.

1905
02:09:21,682 --> 02:09:24,822
But the ten billion dollars was right
there in the term sheet.

1906
02:09:26,202 --> 02:09:31,362
Musk was on notice in twenty eighteen that
if revenues exceeded costs one day,

1907
02:09:31,362 --> 02:09:34,642
investors could stand to gain fifteen
times ten billion.

1908
02:09:36,502 --> 02:09:40,082
All of this was spelled out for Musk in
that four-page document.

1909
02:09:41,142 --> 02:09:42,042
He did not object.

1910
02:09:43,322 --> 02:09:45,362
He did not say, "Hey, wait, stop.

1911
02:09:46,122 --> 02:09:47,462
This violates a commitment to me."

1912
02:09:48,762 --> 02:09:51,292
So how, how does Musk deal with this,
right?

1913
02:09:52,622 --> 02:09:56,622
Having received this term sheet at the
time, having had two witnesses testify

1914
02:09:56,622 --> 02:09:58,362
they reviewed the term sheet with him,

1915
02:09:59,162 --> 02:10:03,342
and having failed to raise any complaint,
how can Musk possibly maintain now

1916
02:10:04,102 --> 02:10:07,922
that OpenAI wasn't allowed to create a
structure that would eventually raise ten

1917
02:10:07,922 --> 02:10:10,142
billion dollars from Microsoft in twenty
twenty-three?

1918
02:10:11,462 --> 02:10:11,982
He can't.

1919
02:10:13,942 --> 02:10:15,942
He just tries to get you to believe

1920
02:10:16,662 --> 02:10:20,122
that he stuck his head in the sand, that
he was duped or, or something.

1921
02:10:21,122 --> 02:10:25,082
And his story keeps changing here.
Remember, you saw that long deposition

1922
02:10:25,082 --> 02:10:26,222
clip, four-minute clip,

1923
02:10:27,282 --> 02:10:30,292
where he's-- he just ended up denying he'd
ever

1924
02:10:31,022 --> 02:10:31,982
looked at the term sheet.

1925
02:10:32,582 --> 02:10:35,062
That's what he did in his deposition,
denied it completely.

1926
02:10:36,322 --> 02:10:37,422
Then you heard him at trial

1927
02:10:38,262 --> 02:10:41,042
say he did read it, but only the purple
box.

1928
02:10:41,922 --> 02:10:43,382
He didn't read the fine print

1929
02:10:44,582 --> 02:10:46,622
of this four-page term sheet.

1930
02:10:47,942 --> 02:10:53,022
And his story now is that he took his
quick review. He, he, he took that review

1931
02:10:53,722 --> 02:10:54,082
and then

1932
02:10:55,422 --> 02:10:56,082
took from it

1933
02:10:58,282 --> 02:11:01,402
that the profits would flow to the
nonprofit,

1934
02:11:01,702 --> 02:11:05,662
and investors would not be investing but
rather donating. And I'll, I'll pause on

1935
02:11:05,662 --> 02:11:08,982
this for just a minute because it is worth
a linger.

1936
02:11:10,062 --> 02:11:12,522
Here you have one of the most
sophisticated businessmen

1937
02:11:13,782 --> 02:11:14,742
in the history of the world

1938
02:11:15,882 --> 02:11:18,842
asking you to believe he got a four-page
term sheet

1939
02:11:19,782 --> 02:11:20,982
for a for-profit entity,

1940
02:11:22,022 --> 02:11:24,462
that he read only the colorful bit at the
top

1941
02:11:25,702 --> 02:11:30,362
and somehow read it to mean that no one,
no investors would hope to make any

1942
02:11:30,362 --> 02:11:30,882
profits,

1943
02:11:31,512 --> 02:11:34,642
that he didn't read the four pages because
that's fine print.

1944
02:11:36,022 --> 02:11:38,382
It is as implausible as it sounds.

1945
02:11:41,302 --> 02:11:44,882
A four le-- four-page-- this is a
high-level summary. It's, it's entitled,

1946
02:11:44,882 --> 02:11:49,962
you'll see it, summary term sheet. That's
not fine print. It's a summary. And if you

1947
02:11:49,962 --> 02:11:51,522
care even a bit, you read it.

1948
02:11:53,262 --> 02:11:57,242
The idea that this document is about
donations and not investments is also

1949
02:11:57,242 --> 02:11:57,802
ludicrous.

1950
02:11:58,942 --> 02:12:01,362
Even Mr. Musk wobbled a bit on that one.

1951
02:12:01,972 --> 02:12:02,951
Um, remember we asked him,

1952
02:12:03,652 --> 02:12:07,862
"So you think Mr. Nadella and Microsoft
were giving a three billion dollar

1953
02:12:07,862 --> 02:12:12,442
charitable donation to OpenAI? Is that
your testimony?" Musk's answer, "No,

1954
02:12:13,122 --> 02:12:14,522
but part of it may have been."

1955
02:12:16,582 --> 02:12:20,022
Jared Birchall only had to glance at the
term sheet

1956
02:12:20,122 --> 02:12:25,542
in twenty eighteen to know [chuckles] that
the for-profit was an investment vehicle.

1957
02:12:25,542 --> 02:12:30,042
Here's his, his, uh, email from the time.

1958
02:12:30,702 --> 02:12:32,171
He reviews the term sheet, and he says,

1959
02:12:32,932 --> 02:12:35,671
"Pretty plain vanilla for-profit
structure,

1960
02:12:36,282 --> 02:12:40,762
so kinda hard to push a narrative that
doesn't involve investors being very

1961
02:12:40,762 --> 02:12:42,222
focused on ROI."

1962
02:12:43,962 --> 02:12:48,492
ROI is return on investment, as Mr. Musk--
or sorry, Mr. Birchall

1963
02:12:49,182 --> 02:12:50,282
acknowledged on the stand.

1964
02:12:52,022 --> 02:12:54,392
And a return on investment, of course, is
profit,

1965
02:12:55,442 --> 02:12:58,082
a profit to investors and not to the
nonprofit.

1966
02:13:00,272 --> 02:13:05,302
Musk knew full well this was an investment
vehicle, and he even considered investing

1967
02:13:05,302 --> 02:13:06,382
in it himself.

1968
02:13:07,542 --> 02:13:12,342
But then he decided not to and to instead
be supportive in spirit.

1969
02:13:13,672 --> 02:13:16,502
This is M- Ms. Zelis's notes from the
time.

1970
02:13:18,322 --> 02:13:21,942
Just for awareness, Elon does not need to
do the Reid call. That's the call with

1971
02:13:21,942 --> 02:13:22,682
Reid Hoffman

1972
02:13:23,282 --> 02:13:25,962
to discuss possibly investing in this
structure.

1973
02:13:26,712 --> 02:13:31,002
Doesn't need to do the Reid call because
he's decided to be supportive in spirit of

1974
02:13:31,002 --> 02:13:34,082
OpenAI, but not participate in the new
instrument.

1975
02:13:34,982 --> 02:13:37,982
How could she have written that if he
didn't consider the term sheet?

1976
02:13:46,782 --> 02:13:46,922
And

1977
02:13:48,222 --> 02:13:48,682
you heard

1978
02:13:51,622 --> 02:13:53,522
from Mr. Musk's own chief of staff,

1979
02:13:54,582 --> 02:13:55,142
Mr. Teller,

1980
02:13:56,662 --> 02:14:01,242
that Musk passed on investing in the
for-profit, not because he thought it was

1981
02:14:01,242 --> 02:14:01,642
scammy,

1982
02:14:02,722 --> 02:14:05,522
but because he doesn't invest in companies
that he can't control.

1983
02:14:07,402 --> 02:14:10,642
His claim now is that he doesn't know
what's, what was going on

1984
02:14:12,062 --> 02:14:15,622
and that he would have stopped it had he
read the fine print.

1985
02:14:17,062 --> 02:14:18,902
That is another thing that is made up for
this

1986
02:14:18,902 --> 02:14:25,570
litigation.So what we've walked through
just

1987
02:14:25,570 --> 02:14:30,829
now is overwhelming evidence from twenty
seventeen and twenty eighteen that Mr.

1988
02:14:30,830 --> 02:14:35,970
Musk knew and supported, knew about and
supported an OpenAI for-profit.

1989
02:14:37,450 --> 02:14:42,150
And there's nothing but Mr. Musk's own
testimony to support the idea that there

1990
02:14:42,150 --> 02:14:46,669
were implied restrictions attached to his
donations on what OpenAI could do with

1991
02:14:46,670 --> 02:14:50,610
those donations with the structure once
Mr. Musk

1992
02:14:51,290 --> 02:14:52,110
left the board.

1993
02:14:54,670 --> 02:14:58,950
Against all this, the only things that Mr.
Musk can point to

1994
02:14:59,710 --> 02:15:03,790
are a handful of documents referencing
enthusiasm for the nonprofit structure

1995
02:15:04,630 --> 02:15:08,169
and a desire to try fundraising within the
nonprofit.

1996
02:15:10,950 --> 02:15:12,930
Contrary to what Mr. Mollo tried to tell
you,

1997
02:15:13,810 --> 02:15:17,030
none of these show any sort of commitment
or, or promise.

1998
02:15:18,230 --> 02:15:23,010
This is Sam Altman, I remain enthusiastic
about the nonprofit structure. That is not

1999
02:15:23,010 --> 02:15:27,630
a promise. Your common sense tells you
that. But you don't have to rely only on

2000
02:15:27,630 --> 02:15:30,789
your common sense because Sam Altman said
it.

2001
02:15:32,410 --> 02:15:33,950
Siobhan Zillis said it.

2002
02:15:35,390 --> 02:15:37,910
I would not view that as a promise.

2003
02:15:43,030 --> 02:15:43,130
And

2004
02:15:43,810 --> 02:15:44,350
it was true.

2005
02:15:45,170 --> 02:15:48,560
Sam Altman was enthusiastic about the
nonprofit structure when he wrote that.

2006
02:15:49,810 --> 02:15:53,630
He thought maybe they could raise the
needed funds within the nonprofit

2007
02:15:53,630 --> 02:15:56,140
structure at that point if they really
made a big push.

2008
02:15:56,770 --> 02:15:59,030
But it didn't work out. You heard that
from Greg Brockman.

2009
02:16:03,310 --> 02:16:08,750
Let's look at, um, the email now from
Siobhan Zillis around the same, same day.

2010
02:16:08,750 --> 02:16:12,520
This is after the for-profit negotiations,
right, right after that honest thoughts,

2011
02:16:13,470 --> 02:16:15,230
um, email exchange.

2012
02:16:17,170 --> 02:16:21,650
She writes that Mr. Brockman and Dr.
Sutskever were good with continuing with

2013
02:16:21,650 --> 02:16:22,630
the nonprofit.

2014
02:16:24,120 --> 02:16:26,710
They would like to continue with the
nonprofit structure.

2015
02:16:27,630 --> 02:16:31,310
Here again, that is not a commitment. That
is just a statement of what they'd like

2016
02:16:31,310 --> 02:16:32,350
to do at that point.

2017
02:16:33,410 --> 02:16:37,870
And in fact, every witness, again,
including Ms. Zillis, told you that

2018
02:16:39,050 --> 02:16:39,870
Mr. Brockman

2019
02:16:40,570 --> 02:16:44,150
and Dr. Sutskever affirmatively refused to
commit,

2020
02:16:44,990 --> 02:16:45,190
right?

2021
02:16:46,190 --> 02:16:52,110
You heard from Mr. Brockman that Mr. Musk
requested very specific conditions to

2022
02:16:52,110 --> 02:16:56,350
resume his funding of the nonprofit after
these email exchanges.

2023
02:16:57,230 --> 02:17:01,950
Mr. Musk's side has tried to make it seem
like the requested commitment was, was

2024
02:17:01,950 --> 02:17:02,560
really simple,

2025
02:17:03,330 --> 02:17:08,370
right? This binary choice between either
do something on your own or continue with

2026
02:17:08,370 --> 02:17:11,890
OpenAI as a nonprofit, but the discussions
continued from here.

2027
02:17:15,750 --> 02:17:18,250
Mr. Musk required his three conditions,

2028
02:17:19,450 --> 02:17:24,090
and he relayed those conditions to Ms.
Zillis and Mr. Teller in late September,

2029
02:17:24,090 --> 02:17:26,590
about a week after the email we were just
looking at.

2030
02:17:27,310 --> 02:17:31,330
The first was granting Mr. Musk two more
board seats on the nonprofit board.

2031
02:17:32,530 --> 02:17:36,560
Second was requiring Mr. Brockman and Dr.
Sutskever to sign a non-solicit,

2032
02:17:37,330 --> 02:17:40,990
which is an agreement not to recruit out
of OpenAI if they were to leave.

2033
02:17:42,410 --> 02:17:46,570
And the third was requiring Mr. Brockman
and Dr. Sutskever

2034
02:17:46,630 --> 02:17:49,090
to commit to staying at OpenAI for two
years.

2035
02:17:50,750 --> 02:17:54,770
Now, Mr. Brockman told you he thought, he
thought carefully about those conditions.

2036
02:17:56,470 --> 02:18:01,330
That's the thought process that you saw in
those journal entries that Musk's team

2037
02:18:01,330 --> 02:18:03,870
cherry-picked and, and showed to you and
to him.

2038
02:18:06,590 --> 02:18:11,650
He and Dr. Sutskever worried that
accepting Mr. Musk's terms would tie them

2039
02:18:11,650 --> 02:18:16,190
to the nonprofit without the resources to
achieve its mission. Because Mr. Musk

2040
02:18:16,190 --> 02:18:16,400
wasn't,

2041
02:18:17,110 --> 02:18:19,950
wasn't just-- he wasn't gonna contribute
tons more, he's just gonna resume his

2042
02:18:19,950 --> 02:18:24,370
quarterly funding of five million dollars
if they accepted those conditions.

2043
02:18:25,330 --> 02:18:29,570
And you heard they even considered firing
Mr. Musk from the board because the only

2044
02:18:29,570 --> 02:18:34,370
for-profit structure that he would
conceive of was one where he had

2045
02:18:34,370 --> 02:18:35,730
unilateral control.

2046
02:18:37,210 --> 02:18:38,090
And Mr. Mollo,

2047
02:18:38,950 --> 02:18:42,670
you saw, tried to, to make it seem like
that was all made up by Greg Brockman on

2048
02:18:42,670 --> 02:18:43,150
the stand.

2049
02:18:44,469 --> 02:18:44,900
You saw

2050
02:18:45,789 --> 02:18:46,450
on redirect

2051
02:18:47,390 --> 02:18:51,870
that Mr. Brockman was writing about the
pl-- the thought of firing Elon

2052
02:18:52,790 --> 02:18:57,450
the day before the journal entry that Mr.
Mollo was showing and in the same journal

2053
02:18:57,450 --> 02:19:02,630
entry that Mr. Mollo was showing. This was
not something Mr. Brockman made up for

2054
02:19:02,630 --> 02:19:02,930
trial.

2055
02:19:08,510 --> 02:19:09,890
They didn't do it, though, right?

2056
02:19:10,690 --> 02:19:15,170
Mr. Brockman and Dr. Sutskever did not
fire Elon Musk from the board. They

2057
02:19:15,170 --> 02:19:17,610
decided to try to make the nonprofit work

2058
02:19:18,350 --> 02:19:22,790
with Mr. Musk not accepting his conditions
but trying to make it work.

2059
02:19:23,630 --> 02:19:28,330
They thought it would be morally bankrupt
to get Musk to resume his quarterly

2060
02:19:28,330 --> 02:19:34,950
contributions to the nonprofit if they
gave their word, and then they went off to

2061
02:19:34,950 --> 02:19:36,190
start a for-profit

2062
02:19:36,950 --> 02:19:40,970
if those resumed donations turned out to
have been insufficient to advance the

2063
02:19:40,970 --> 02:19:41,330
mission.

2064
02:19:43,530 --> 02:19:47,410
They thought that would be morally
bankrupt, so they didn't do it.

2065
02:19:48,890 --> 02:19:52,050
They didn't agree to the conditions. No
one made a commitment to Mr. Musk.

2066
02:19:54,670 --> 02:19:57,040
And in the weeks before Mr. Musk's
departure,

2067
02:19:57,770 --> 02:20:01,950
Mr. Brockman and Dr. Sutskever continued
to share their uncertainty about OpenAI's

2068
02:20:01,950 --> 02:20:02,330
future.

2069
02:20:03,870 --> 02:20:07,710
Here's, here's a document that you saw, I
think with Siobhan Zillis,

2070
02:20:08,590 --> 02:20:13,630
that proves Mr. Musk's claim that the
founders committed to a nonprofit is just

2071
02:20:13,630 --> 02:20:14,070
false.

2072
02:20:16,670 --> 02:20:19,010
Mr. Mollo, I, I don't think, showed you
this document.

2073
02:20:19,730 --> 02:20:25,570
It's Siobhan Zillis' notes from the time,
reporting on what Greg, Ilya, and Altman

2074
02:20:26,630 --> 02:20:32,177
were telling her.They're still not sure
whether, whether they'll stay a nonprofit

2075
02:20:32,178 --> 02:20:33,578
and focus on donations.

2076
02:20:34,558 --> 02:20:36,938
Figure out a structure for equity
fundraise

2077
02:20:37,678 --> 02:20:41,958
or a private version of a token offering
you guys had discussed before.

2078
02:20:43,338 --> 02:20:45,218
This is February eleventh, twenty
eighteen.

2079
02:20:47,618 --> 02:20:51,398
There was just no commitment made to Mr.
Musk about OpenAI's corporate structure.

2080
02:20:52,598 --> 02:20:57,858
There was never any specific purpose tied
to his contributions, certainly not one

2081
02:20:57,858 --> 02:21:00,638
related to OpenAI keeping the nonprofit
the main event.

2082
02:21:01,618 --> 02:21:02,418
It's all made up.

2083
02:21:03,378 --> 02:21:04,638
And let's look at the testimony.

2084
02:21:06,438 --> 02:21:10,698
None of the other founders backed up
Musk's story.

2085
02:21:11,938 --> 02:21:14,598
Sam Altman, Greg Brockman, Ilya Sutskever.

2086
02:21:15,738 --> 02:21:17,658
None of the other witnesses.

2087
02:21:19,898 --> 02:21:20,458
Even, even

2088
02:21:21,058 --> 02:21:22,478
Mr. Musk's own witnesses

2089
02:21:23,598 --> 02:21:24,638
say they were unaware

2090
02:21:25,778 --> 02:21:29,118
of any promises made to him by OpenAI.

2091
02:21:31,818 --> 02:21:32,228
So that,

2092
02:21:33,018 --> 02:21:35,168
that is the first restriction. There was
none.

2093
02:21:36,198 --> 02:21:38,058
You can't imply it. The record

2094
02:21:38,978 --> 02:21:39,578
defeats it.

2095
02:21:41,578 --> 02:21:43,978
Nor was there any condition or commitment

2096
02:21:44,618 --> 02:21:45,938
related to open sourcing.

2097
02:21:47,158 --> 02:21:51,258
And none of Mr. Musk's donations were
given for the specific purpose of open

2098
02:21:51,258 --> 02:21:53,258
sourcing. You didn't see any, anything
saying that.

2099
02:21:54,138 --> 02:21:56,318
And this we can cover a lot more briefly.

2100
02:21:57,578 --> 02:21:58,138
You heard

2101
02:21:58,938 --> 02:22:04,208
Dr. Sutskever say there was no promise
made to Mr. Musk on open sourcing.

2102
02:22:06,508 --> 02:22:10,918
Did you ever make such a promise to Mr.
Musk? Definitely not. I mean, on the

2103
02:22:10,918 --> 02:22:15,298
contrary, early, early on, I told him that
OpenAI is not going to open source

2104
02:22:15,298 --> 02:22:15,678
everything.

2105
02:22:17,058 --> 02:22:18,158
Even OpenAI's,

2106
02:22:19,078 --> 02:22:21,988
um, documents, the, you know, all, all the
documents from the time,

2107
02:22:22,938 --> 02:22:27,558
the general certificate of incorporation,
the original one from twenty fifteen,

2108
02:22:28,718 --> 02:22:32,738
says only that op-- the OpenAI nonprofit
will open source its technology when

2109
02:22:32,738 --> 02:22:33,358
applicable.

2110
02:22:34,798 --> 02:22:38,998
And it was clear from the outset, we, we
saw this email from January of twenty

2111
02:22:39,058 --> 02:22:39,598
sixteen,

2112
02:22:40,678 --> 02:22:46,578
that the open did not mean open sourcing.
This is Ilya Sutskever writing to Elon

2113
02:22:46,578 --> 02:22:47,938
Musk and his other co-founders.

2114
02:22:49,218 --> 02:22:50,798
It didn't mean open sourcing.

2115
02:22:51,418 --> 02:22:55,778
The open in OpenAI means that everyone
should benefit from the fruits of AI after

2116
02:22:55,778 --> 02:22:56,338
it's built,

2117
02:22:56,978 --> 02:22:59,878
but it's totally okay to not share the
science.

2118
02:23:00,738 --> 02:23:02,518
Elon Musk's response, "Yep."

2119
02:23:04,938 --> 02:23:05,498
There's also

2120
02:23:06,138 --> 02:23:10,798
Greg Brockman's email from twenty sixteen,
just a few months later,

2121
02:23:12,338 --> 02:23:13,078
to Elon Musk.

2122
02:23:14,018 --> 02:23:16,617
I plan to say that I can't see why we
would do that.

2123
02:23:17,978 --> 02:23:20,918
Our mission, which means criticize Google
for not open sourcing.

2124
02:23:21,778 --> 02:23:23,978
Our mission is to maximally benefit the
world,

2125
02:23:24,658 --> 02:23:28,578
and we don't have a problem with people
keeping things proprietary. It's fine to

2126
02:23:28,578 --> 02:23:32,458
make money off this stuff, and we may even
generate revenue ourselves one day.

2127
02:23:33,778 --> 02:23:37,538
Musk's response, "Whoa, that's really
interesting. Who called from Google?"

2128
02:23:41,458 --> 02:23:46,237
And you heard the, the Dota technology
that powered that big win in August of

2129
02:23:46,238 --> 02:23:50,118
twenty seventeen. That wasn't open
sourced. Mr. Musk was still at the company

2130
02:23:50,118 --> 02:23:52,198
at the time. He didn't complain about it.

2131
02:23:54,038 --> 02:23:58,018
And Mr. Brockman told you the, the, the
reasoning for not open sourcing that

2132
02:23:58,018 --> 02:23:59,078
wasn't about safety,

2133
02:23:59,838 --> 02:24:00,718
that particular,

2134
02:24:01,358 --> 02:24:01,518
um,

2135
02:24:02,218 --> 02:24:03,058
uh, decision.

2136
02:24:03,718 --> 02:24:08,348
It was about strategic reasons. So
OpenAI's technological progress didn't

2137
02:24:08,348 --> 02:24:10,518
accelerate the progress of competitors.

2138
02:24:12,378 --> 02:24:17,538
In early twenty twenty, OpenAI amended its
certificate of incorporation to remove

2139
02:24:17,538 --> 02:24:21,158
the reference to open sourcing altogether.
It's a public document.

2140
02:24:22,298 --> 02:24:26,158
A few months later, it released a blog
post explaining why it was sharing its

2141
02:24:26,158 --> 02:24:30,138
technology through an API instead of
through open sourcing.

2142
02:24:31,878 --> 02:24:34,118
Another public document from twenty
twenty.

2143
02:24:36,438 --> 02:24:43,338
There was never any commitment to open
source of any kind made to Mr.

2144
02:24:43,338 --> 02:24:43,658
Musk,

2145
02:24:44,578 --> 02:24:49,038
and none of Mr. Musk's contributions to
OpenAI were earmarked for the specific

2146
02:24:49,038 --> 02:24:52,578
purpose of open sourcing. There is zero
evidence of that.

2147
02:24:55,638 --> 02:24:55,798
Now,

2148
02:24:58,438 --> 02:25:01,708
because his donations were not made for
any specific charitable purpose,

2149
02:25:02,738 --> 02:25:05,598
Musk has not proved that he had a
charitable trust.

2150
02:25:06,518 --> 02:25:09,738
Hasn't proved he ever had one. He hasn't
come close to proving that.

2151
02:25:10,758 --> 02:25:11,998
But even if he could prove it,

2152
02:25:12,838 --> 02:25:14,578
prove that he had a trust at some point,

2153
02:25:15,178 --> 02:25:20,018
his claim still fails, and that's because
his money had already been spent by the

2154
02:25:20,018 --> 02:25:25,538
time of the supposed wrongdoing. So any
charitable trust had expired.

2155
02:25:28,078 --> 02:25:28,268
And

2156
02:25:29,478 --> 02:25:30,318
as you can see,

2157
02:25:31,698 --> 02:25:35,318
what we were just actually-- go back to
the slide for a moment. This is just

2158
02:25:36,118 --> 02:25:40,978
the judge's jury instructions. If a trust
is created and subsequently the whole of

2159
02:25:40,978 --> 02:25:44,338
the trust property ceases to exist, the
trust is terminated.

2160
02:25:45,978 --> 02:25:50,258
Musk needed to have shown that the trust
property was still there in twenty

2161
02:25:50,258 --> 02:25:50,888
twenty-three.

2162
02:25:51,978 --> 02:25:56,817
He didn't. Here are Musk's donations, and
you saw this chart with, um, with Mr.

2163
02:25:56,818 --> 02:25:57,648
Dudney yesterday.

2164
02:25:59,278 --> 02:26:02,798
The quarterly contributions ended in June
twenty seventeen,

2165
02:26:03,818 --> 02:26:08,398
and you heard from Mr. Dudney, the, the
forensic accountant, that they were all

2166
02:26:08,398 --> 02:26:11,478
used up no later than November twenty
seventeen.

2167
02:26:14,018 --> 02:26:18,538
Mr. Dudney explained after reviewing
OpenAI's financial documents that the

2168
02:26:18,538 --> 02:26:20,978
money was spent on exactly what you'd
expect:

2169
02:26:21,658 --> 02:26:22,098
compute,

2170
02:26:22,758 --> 02:26:24,478
employees, facilities.

2171
02:26:25,138 --> 02:26:30,734
It was spent in the pursuit of OpenAI's
general mission.And the rent

2172
02:26:30,734 --> 02:26:35,774
contributions, meanwhile, were all used up
by September 2020, when the last rent

2173
02:26:35,774 --> 02:26:36,694
payment was made.

2174
02:26:38,474 --> 02:26:40,704
Everything that Mr. Musk donated

2175
02:26:41,374 --> 02:26:44,494
was spent by September twenty, twenty-
2020.

2176
02:26:45,274 --> 02:26:46,604
That's three years before

2177
02:26:47,914 --> 02:26:49,194
2023.

2178
02:26:50,534 --> 02:26:54,654
There was no trust in existence by the
time of this supposed breach.

2179
02:27:00,174 --> 02:27:00,334
Now,

2180
02:27:00,954 --> 02:27:03,374
I, I think I heard Mr. Mullow say he, he,

2181
02:27:05,114 --> 02:27:05,274
he's

2182
02:27:06,014 --> 02:27:06,974
suggesting that

2183
02:27:08,214 --> 02:27:14,574
the money that Mr. Musk gave from 2017 to
2020 helped OpenAI develop technology that

2184
02:27:14,574 --> 02:27:16,434
formed the basis for,

2185
02:27:17,214 --> 02:27:18,054
you know, for its,

2186
02:27:18,714 --> 02:27:21,234
its IP later on. There was some suggestion
of that.

2187
02:27:22,454 --> 02:27:23,914
But that theory does not work.

2188
02:27:24,894 --> 02:27:25,454
Mr. Musk

2189
02:27:26,194 --> 02:27:30,834
bears the burden of proving that money or
property that he donated was still in a

2190
02:27:30,834 --> 02:27:34,424
trust at OpenAI as of 2023, and he did not
do that.

2191
02:27:35,814 --> 02:27:37,194
Suggestions are not enough.

2192
02:27:38,494 --> 02:27:40,114
The money he gave was spent,

2193
02:27:40,854 --> 02:27:42,554
and he offered no evidence,

2194
02:27:43,154 --> 02:27:43,474
none,

2195
02:27:44,274 --> 02:27:47,994
showing that that money became property of
some kind that lives on today.

2196
02:27:50,054 --> 02:27:53,644
If ever there was a charitable trust, it
ended in September 2020,

2197
02:27:54,914 --> 02:28:00,054
and Musk doesn't argue that any act
occurring before that or after that date,

2198
02:28:00,854 --> 02:28:05,234
before that date, sorry, violated any
right that was owed to him, so he has no

2199
02:28:05,234 --> 02:28:05,454
claim.

2200
02:28:07,574 --> 02:28:11,514
At this point, ladies and gentlemen, I am
going to invite Mr. Savitt to come and

2201
02:28:11,514 --> 02:28:14,994
address you on the remaining issues. It's
been a pleasure to address you. Thank you.

2202
02:28:14,994 --> 02:28:16,374
Well, at this point,

2203
02:28:17,074 --> 02:28:19,714
we are gonna take a recess so you can have
lunch.

2204
02:28:19,714 --> 02:28:20,214
Oh, great.

2205
02:28:21,234 --> 02:28:27,594
Um, so we will, um, jury's lunch is here,
and we'll stand in recess for about 30

2206
02:28:27,594 --> 02:28:27,954
minutes.

2207
02:28:28,714 --> 02:28:29,794
-Okay.
-Peace, right, for the jury.

2208
02:28:32,894 --> 02:28:59,034
Okay,

2209
02:28:59,034 --> 02:28:59,844
Mr. Savitt,

2210
02:29:00,734 --> 02:29:02,254
what's your anticipation?

2211
02:29:04,074 --> 02:29:04,124
Of

2212
02:29:04,894 --> 02:29:07,174
-what, Judge?
-In terms of time.

2213
02:29:12,474 --> 02:29:14,294
I, I-- it's fine, I just wanna know,

2214
02:29:15,294 --> 02:29:15,674
Colin.

2215
02:29:17,754 --> 02:29:22,274
Your Honor, I'm estimating about forty
minutes or so, forty-five at the most.

2216
02:29:23,994 --> 02:29:24,234
Okay.

2217
02:29:25,754 --> 02:29:25,954
Um,

2218
02:29:26,814 --> 02:29:30,054
so if those estimates hold through, then

2219
02:29:30,814 --> 02:29:36,534
we will, after the lunch break, I will do
both of you in that set. Okay. All right,

2220
02:29:36,534 --> 02:29:39,374
we'll stand in recess for about thirty
minutes.

2221
02:29:45,354 --> 02:29:48,054
Your Honor, there is one issue we wanted
to raise arising out of Ms. Eddy's

2222
02:29:48,054 --> 02:29:49,674
presentation.

2223
02:29:50,314 --> 02:29:52,564
Uh, we can do it now, or we can do it at
the end of the recess.

2224
02:29:52,564 --> 02:29:54,154
No, that's okay. Um, Ms. Eddy,

2225
02:29:55,374 --> 02:29:57,334
you've got an issue from plaintiffs.

2226
02:30:00,394 --> 02:30:04,454
We're back on the record. The record will
reflect that the jury is not here.

2227
02:30:05,994 --> 02:30:06,174
Sure.

2228
02:30:07,234 --> 02:30:07,914
Your Honor, um,

2229
02:30:08,874 --> 02:30:12,594
a, a couple different times, and in
particular at page one eleven, line six to

2230
02:30:12,594 --> 02:30:14,534
twenty of the real time, Ms. Eddy

2231
02:30:15,274 --> 02:30:17,454
argued in substance that, uh,

2232
02:30:18,574 --> 02:30:22,814
M-Musk, any condition that Musk imposed to
follow the general mission of the

2233
02:30:22,814 --> 02:30:27,154
organization couldn't be sufficient
because he had to show some specific trust

2234
02:30:27,154 --> 02:30:29,924
purpose above and beyond the
organization's mission,

2235
02:30:30,534 --> 02:30:34,874
and our concern is that that's contrary,
the mission's, uh, the organization's

2236
02:30:34,874 --> 02:30:35,494
general mission.

2237
02:30:36,254 --> 02:30:39,614
And our concern is that that's contrary to
what this court ruled in your summary

2238
02:30:39,614 --> 02:30:43,094
judgment order. In particular, I'm looking
at, uh, docket three ninety,

2239
02:30:43,834 --> 02:30:45,754
page seventeen, where Your Honor said,

2240
02:30:46,374 --> 02:30:51,334
"The argument that a settlor must attach
specific additional conditions to a trust

2241
02:30:51,334 --> 02:30:55,934
where a charitable donation already aligns
with the mission of an organization is

2242
02:30:55,934 --> 02:31:00,214
not supported by case law." And so we
think this has given, uh, the jury a

2243
02:31:00,214 --> 02:31:03,694
misunderstanding or a misleading
impression of Your Honor's instructions

2244
02:31:03,694 --> 02:31:08,014
and wanted to request a supplemental
instruction just to clarify the point Your

2245
02:31:08,014 --> 02:31:10,794
Honor made in the summary judgment
ruling.

2246
02:31:15,794 --> 02:31:21,094
I

2247
02:31:24,234 --> 02:31:26,234
-agree with that. Overruled.
-Thank you,

2248
02:32:04,894 --> 02:32:19,234
Your

2249
02:32:19,234 --> 02:32:20,814
-Honor.
-Excuse me, everyone. We'll need to clear

2250
02:32:20,814 --> 02:32:21,854
the courtroom. Thank you.

2251
02:53:47,914 --> 02:53:50,474
Recording stopped.

2252
02:59:27,744 --> 02:59:29,004
Recording in progress.

2253
02:59:40,264 --> 03:00:49,404
Court

2254
03:00:49,404 --> 03:00:50,384
is back in session.

2255
03:00:55,624 --> 03:00:57,853
Okay, let's, uh, call the jury in.

2256
03:01:11,884 --> 03:01:13,984
You were the sole representative, Mr. Cry.

2257
03:02:27,944 --> 03:02:31,684
-Are you using a briefcase as well?
-[clears throat]

2258
03:02:34,024 --> 03:02:36,584
I, I, I asked whether you were using the
briefcase as

2259
03:02:36,584 --> 03:03:44,594
well.Okay,

2260
03:03:44,594 --> 03:03:49,353
you may all be seated. The record will
reflect that the jury is back, and we're

2261
03:03:49,354 --> 03:03:51,674
good to go. Great. Mr. Savitt.

2262
03:04:13,794 --> 03:04:15,354
-Thank you, Your Honor.
-You may proceed.

2263
03:04:15,354 --> 03:04:15,754
Thank you.

2264
03:04:16,414 --> 03:04:17,594
Members of the jury, hello again.

2265
03:04:18,634 --> 03:04:18,703
Um,

2266
03:04:19,354 --> 03:04:22,874
it's really good to see you. It's, um,
really good to have the chance to visit

2267
03:04:22,874 --> 03:04:23,194
with you

2268
03:04:23,934 --> 03:04:27,154
again. It's been a couple of weeks, maybe
even three, since we had the chance to

2269
03:04:27,154 --> 03:04:27,383
speak,

2270
03:04:28,234 --> 03:04:30,664
uh, directly, and grateful for that
opportunity.

2271
03:04:31,474 --> 03:04:34,124
Grateful also for your time and attention,

2272
03:04:34,914 --> 03:04:35,964
which we know is precious,

2273
03:04:36,774 --> 03:04:37,114
and

2274
03:04:38,334 --> 03:04:38,534
you've

2275
03:04:39,314 --> 03:04:41,234
been very generous with it over the past
few weeks.

2276
03:04:42,914 --> 03:04:46,554
We're gonna talk a little bit more about
the evidence as we see it in this case,

2277
03:04:46,554 --> 03:04:50,414
and, um, well, thank you for, for the
indulgence there.

2278
03:04:51,034 --> 03:04:51,194
Um,

2279
03:04:51,974 --> 03:04:55,954
I wanna pick up where, where my colleague,
Ms., Ms. Eddy left off. She walked you

2280
03:04:55,954 --> 03:05:01,274
through the mountain of evidence that
shows that Musk's general contributions,

2281
03:05:01,274 --> 03:05:06,454
lacking any specific charitable purpose,
cannot possibly have created a charitable

2282
03:05:06,454 --> 03:05:10,394
trust. And we think under the law and
under the evidence, that proposition, that

2283
03:05:10,394 --> 03:05:14,644
idea isn't capable really of being
disputed. Ms. Eddy has also shown you, um,

2284
03:05:14,644 --> 03:05:19,834
the evidence, likewise overwhelming, that
Musk's donations were spent exactly as

2285
03:05:19,834 --> 03:05:24,994
they were requested to have been spent,
exactly consistent with OpenAI's general

2286
03:05:25,054 --> 03:05:26,074
charitable purpose.

2287
03:05:26,914 --> 03:05:31,894
There is one more thread on the matter of
charitable trust, however, that I wanted

2288
03:05:31,894 --> 03:05:35,194
to speak with you before moving on to a
few other, few other subjects.

2289
03:05:35,814 --> 03:05:35,824
Um,

2290
03:05:36,754 --> 03:05:42,534
e-even if you imagine, contrary to fact,
that a charitable trust was created, Musk

2291
03:05:42,534 --> 03:05:46,374
would still have to show that the terms of
that trust were breached for him to have

2292
03:05:46,374 --> 03:05:51,774
made out a claim. The question, members of
the jury, boils down to this: Has the

2293
03:05:51,774 --> 03:05:57,274
OpenAI nonprofit respected its general
founding principles? And with the evidence

2294
03:05:57,274 --> 03:05:58,054
before you,

2295
03:05:58,834 --> 03:06:04,454
you can see we believe that the answer is,
has to be yes. I, I wanna emphasize that

2296
03:06:04,454 --> 03:06:08,694
in some sense, this question doesn't,
doesn't really matter legally. As we've

2297
03:06:08,694 --> 03:06:14,034
seen, Mr. Musk only can have a claim if
specific commitments were made to him

2298
03:06:14,034 --> 03:06:18,874
about the uses of his donations, showing
that they were different than OpenAI's

2299
03:06:18,874 --> 03:06:23,574
general commitments, which we submit, uh,
they weren't for the reasons that Ms. Eddy

2300
03:06:23,574 --> 03:06:24,763
has discussed with you.

2301
03:06:25,474 --> 03:06:29,594
But counsel for Mr. Musk, Mr. Mulloway,
spent a lot of time speaking about this

2302
03:06:29,594 --> 03:06:33,014
question, immaterial though we think it
is, and I didn't wanna leave it,

2303
03:06:34,054 --> 03:06:36,194
didn't wanna leave it unanswered, and we
think the answer is easy.

2304
03:06:36,894 --> 03:06:40,594
Uh, OpenAI has respected its charitable
principles from

2305
03:06:41,754 --> 03:06:43,394
day one to today,

2306
03:06:43,454 --> 03:06:47,914
and as we think the evidence at trial's
shown. The OpenAI nonprofit, which today

2307
03:06:47,914 --> 03:06:53,194
is called the OpenAI Foundation, is still
a 501(c)(3)

2308
03:06:53,254 --> 03:06:57,254
nonprofit organization, and that's the
relevant provision of the, the IRS code,

2309
03:06:57,254 --> 03:06:58,794
the tax code that identifies it.

2310
03:06:59,914 --> 03:07:01,314
OpenAI Foundation

2311
03:07:01,934 --> 03:07:07,013
has always been a 501(c)(3)
o-organization. It remains that, and it's

2312
03:07:07,014 --> 03:07:09,274
governed by the same nonprofit
certificate,

2313
03:07:10,114 --> 03:07:10,254
uh,

2314
03:07:10,954 --> 03:07:15,374
as it was in 2020, which was not
meaningfully distinguishable from the

2315
03:07:15,374 --> 03:07:19,154
certificate as it was incorporated in
2015, all of which has been public for the

2316
03:07:19,154 --> 03:07:25,414
world to see for many, many years. Uh, no
one in this trial is disputing that. I

2317
03:07:25,414 --> 03:07:29,654
don't think it's really subject to dispute
either that the foundation has some two

2318
03:07:29,654 --> 03:07:34,754
hundred billion dollars in assets as we,
as we speak today. You heard that from Mr.

2319
03:07:34,754 --> 03:07:38,954
Taylor, the foundation's chairman. You
heard it from Mr. Altman, and there's no

2320
03:07:38,954 --> 03:07:44,194
contrary evidence in the records. It's not
subject to dispute. The OpenAI Foundation

2321
03:07:44,194 --> 03:07:50,114
is today one of the largest nonprofits in
history. It is funding initiatives aimed

2322
03:07:50,114 --> 03:07:55,094
at fostering AI resilience, which is
making sure that the economy is resilient

2323
03:07:55,094 --> 03:07:59,174
in light of the coming of artificial
intelligence, and focusing on curing

2324
03:07:59,174 --> 03:08:00,903
diseases and trying to make

2325
03:08:02,554 --> 03:08:07,014
life and work better for healthcare
professionals in the healthcare industry.

2326
03:08:07,014 --> 03:08:12,294
No private person has received any part of
the nonprofit's net revenues.

2327
03:08:13,194 --> 03:08:18,374
None of the foundation's assets have been
transferred to anyone for anything other

2328
03:08:18,374 --> 03:08:19,444
than fair value,

2329
03:08:20,154 --> 03:08:20,354
ever.

2330
03:08:21,554 --> 03:08:21,834
I wanna,

2331
03:08:22,574 --> 03:08:26,554
I wanna talk a l-- for a moment about, uh,
the, the document that's now on your

2332
03:08:26,554 --> 03:08:30,874
screen. It's, it's a reports, report of a,
an accounting firm, a financial

2333
03:08:30,874 --> 03:08:35,274
evaluation firm called Hemming Morse. As
you heard, the nonprofit transferred some

2334
03:08:35,274 --> 03:08:36,844
of its assets to OpenAI,

2335
03:08:37,734 --> 03:08:40,094
the for-profit branch, back in 2019,

2336
03:08:40,974 --> 03:08:46,164
which is seven years ago. It's undisputed,
and by that I mean no one's said anything

2337
03:08:46,164 --> 03:08:50,533
on the other side of the question, that
that transfer was for fair value, as

2338
03:08:50,534 --> 03:08:55,254
determined by an independent third-party
valuation report at this time, and that's

2339
03:08:55,254 --> 03:08:59,494
the Hemming Morse report that we've
introduced into evidence and is before you

2340
03:08:59,494 --> 03:09:04,454
now. And the evidence, um, from the
witnesses bears all this out. Ms.

2341
03:09:04,454 --> 03:09:08,314
McCauley, who, as you saw, had some harsh
things to say about some of my clients,

2342
03:09:08,314 --> 03:09:09,794
was asked whether the--

2343
03:09:10,444 --> 03:09:13,764
and she, she was on the board at the time,
was asked whether it was fair value.

2344
03:09:13,764 --> 03:09:17,874
"That's correct," she said. You even
heard, um, fr-from plaintiff's own

2345
03:09:17,874 --> 03:09:23,174
witnesses exactly to that effect, and not
only that, even Mr. Musk's expert,

2346
03:09:23,914 --> 03:09:28,434
Mr. Schizer, can't complain about the
valuation. No basis to question its

2347
03:09:28,434 --> 03:09:34,989
validity. No one-Is disputing. No one is
claiming that the transfer of assets in

2348
03:09:34,990 --> 03:09:39,970
two thousand nineteen somehow violated
OpenAI's certificate of incorporation.

2349
03:09:41,150 --> 03:09:45,929
And in fact, the evidence is clear that
Altman, Brockman, Sutskever, and their

2350
03:09:45,930 --> 03:09:51,830
colleagues have turned that sixty million
dollar contribution of assets into a two

2351
03:09:51,830 --> 03:09:52,820
hundred billion dollar

2352
03:09:53,730 --> 03:09:58,389
fund of charitable assets. That's sixty
million into two hundred billion. Before

2353
03:09:58,390 --> 03:10:01,710
speaking with you, I tried to do the math
to figure out the percentage, and it's

2354
03:10:01,710 --> 03:10:05,730
actually hard to do. And with the aid of
some artificial intelligence, I can report

2355
03:10:05,730 --> 03:10:11,950
to you that this reflects an increase in
value of three hundred and thirty-three

2356
03:10:11,950 --> 03:10:12,970
thousand percent.

2357
03:10:14,210 --> 03:10:18,710
Three hundred and thirty-three thousand
percent increase. Apparently not enough

2358
03:10:18,710 --> 03:10:19,420
for Mr. Schizer.

2359
03:10:21,170 --> 03:10:25,530
And that just talks about the increase in
valuation, the increase in charitable

2360
03:10:25,530 --> 03:10:31,410
funds that are available for initiatives
in health resilience and otherwise to make

2361
03:10:31,410 --> 03:10:35,670
artificial intelligence safe and better,
to put it to work for humanitarian

2362
03:10:35,670 --> 03:10:39,350
purposes, both through grants and, and
initiatives. That's just one part of it,

2363
03:10:39,350 --> 03:10:42,590
and that's a big part of it, but it's not
the whole part of it, because there's also

2364
03:10:42,590 --> 03:10:43,530
a matter of governance.

2365
03:10:44,510 --> 03:10:45,310
The nonprofit

2366
03:10:46,450 --> 03:10:52,270
always has and still does control the
OpenAI for-profit. That control is not

2367
03:10:52,270 --> 03:10:55,920
required. It's not as though there's
anything in the law of charitable trust or

2368
03:10:55,920 --> 03:10:58,610
its custom and practice, as you've heard
about, that requires that.

2369
03:10:59,250 --> 03:11:03,270
Certainly wasn't a duty owed to Elon Musk,
but it's true nonetheless, members of the

2370
03:11:03,270 --> 03:11:07,970
jury. It's a matter of simple corporate
law, as Professor Coates explained to you

2371
03:11:07,970 --> 03:11:09,130
yesterday afternoon.

2372
03:11:10,670 --> 03:11:12,410
Now, Musk complains that

2373
03:11:13,210 --> 03:11:17,950
OpenAI's controlled nonprof-- for-profit,
uh, for-profit organization that's subject

2374
03:11:17,950 --> 03:11:19,770
to nonprofit control is too big.

2375
03:11:20,430 --> 03:11:24,669
Um, Professor Hemel, who studies nonprofit
organizations, explained that many

2376
03:11:24,670 --> 03:11:29,850
charities affiliated with non-- with for,
with for-profit organizations

2377
03:11:30,450 --> 03:11:34,750
have for-profit organizations that are
very, very large. This is not, at a

2378
03:11:34,750 --> 03:11:38,710
conceptual level, an anomaly. It's not
something that's unknown or odd.

2379
03:11:39,329 --> 03:11:39,510
Um,

2380
03:11:40,530 --> 03:11:45,170
M-M-Microsoft partnerships are also
consistent common practice amongst large

2381
03:11:45,170 --> 03:11:50,790
United States charities. Nonprofits can
and do use for-profit affiliations to

2382
03:11:50,790 --> 03:11:55,210
advance their missions. This is the custom
and practice of nonprofit law. They can

2383
03:11:55,210 --> 03:12:00,350
structure partnerships with commercial
partners. This is nonprofit law. The

2384
03:12:00,350 --> 03:12:04,270
question here is whether the arrangement
advances the nonprofit's mission. That's

2385
03:12:04,270 --> 03:12:06,970
the question, and the answer is, of
course, it does.

2386
03:12:07,690 --> 03:12:12,770
When you think through the complaint that
the nonprofit is too small and the

2387
03:12:12,770 --> 03:12:14,270
for-profit is too big, it,

2388
03:12:15,110 --> 03:12:19,610
it doesn't really make a lot of sense. If
OpenAI's for-profit were less valuable,

2389
03:12:20,720 --> 03:12:25,160
all that would mean is less for the
foundation, that the foundation would have

2390
03:12:25,160 --> 03:12:26,860
fewer charitable resources.

2391
03:12:27,990 --> 03:12:32,130
And if the governance rights weren't as
strong, that would mean there was less

2392
03:12:32,130 --> 03:12:34,670
influence over the shape of AGI.

2393
03:12:35,510 --> 03:12:37,770
None of that is consistent with the
charitable mission.

2394
03:12:40,010 --> 03:12:44,770
All of it, all of it is entirely in line
with the charitable mission. And yet, what

2395
03:12:44,770 --> 03:12:50,490
Mr. Musk seems to want to achieve is a
scenario where the foundation has fewer

2396
03:12:50,490 --> 03:12:52,090
assets and is

2397
03:12:52,850 --> 03:12:58,030
exercising less control over leading-edge
artificial intelligence. It makes no sense

2398
03:12:58,030 --> 03:13:02,989
from a mission perspective. Importantly,
moreover, you've heard that the

2399
03:13:02,990 --> 03:13:07,190
nonprofit's current structure, as Mr.
Taylor testified, was shaped in

2400
03:13:07,190 --> 03:13:10,930
consultation with the attorneys general of
Delaware and California, who were

2401
03:13:10,930 --> 03:13:15,850
actively involved in discussions about how
to structure the organization in twenty

2402
03:13:15,850 --> 03:13:16,530
twenty-five.

2403
03:13:17,150 --> 03:13:24,130
That's just because OpenAI is a nonprofit,
and no other AI company can say that. No

2404
03:13:24,130 --> 03:13:29,650
other AI company is organized with a
nonprofit in control. No other AI company

2405
03:13:29,650 --> 03:13:33,570
answers to government regulators like the
attorneys general, certainly not Mr.

2406
03:13:33,570 --> 03:13:35,650
Musk's xAI.

2407
03:13:37,490 --> 03:13:39,950
And m-m-- Counsel Mr. Mullow touts

2408
03:13:40,750 --> 03:13:44,550
Mr. Musk's concern with the social impact
of artificial intelligence.

2409
03:13:45,170 --> 03:13:45,290
Um,

2410
03:13:46,110 --> 03:13:50,330
the whole point of the resilience project,
which will now be the beneficiary of

2411
03:13:50,330 --> 03:13:55,770
billions of dollars of action and
resources, is precisely to mitigate the

2412
03:13:55,770 --> 03:14:00,150
economic effects, the adverse economic
effects of artificial intelligence, and to

2413
03:14:00,150 --> 03:14:05,070
ensure positive ef-- impacts in
artificial intelligence. This isn't gonna

2414
03:14:05,070 --> 03:14:08,790
be easy, and it's not gonna be without its
challenges, but someone has to devote the

2415
03:14:08,790 --> 03:14:13,190
resources to try and get it right. That's
what OpenAI is doing, not xAI.

2416
03:14:16,050 --> 03:14:20,280
Mr. Musk looks at all this nevertheless
and shouts,

2417
03:14:21,360 --> 03:14:22,190
"They stole a charity."

2418
03:14:23,330 --> 03:14:27,070
That's sort of all he does, is shout,
"They stole a charity," but that has

2419
03:14:27,070 --> 03:14:31,290
things exactly backwards, members of the
jury. For years, the main value

2420
03:14:32,010 --> 03:14:34,830
the nonprofit had was in its residual
interest

2421
03:14:35,630 --> 03:14:40,169
in the old capped profit structure. You
heard Mr. Schizer complain about how

2422
03:14:40,170 --> 03:14:44,530
uncertain that interest was. He said it
made things hard for the nonprofit. It

2423
03:14:44,530 --> 03:14:49,330
wasn't be able-- gonna be able to get its,
its hands on resources quickly, and, and

2424
03:14:49,330 --> 03:14:50,290
that's true. And,

2425
03:14:50,990 --> 03:14:55,410
a-and it's, it's also true that for
several years, the nonprofit's main job

2426
03:14:55,410 --> 03:14:58,690
was overseeing the for-profit. That
remains an important part of the

2427
03:14:58,690 --> 03:15:03,710
nonfunction-- nonprofit function. It
didn't have its resources readily

2428
03:15:03,710 --> 03:15:06,030
available to conduct its own initiatives.

2429
03:15:07,790 --> 03:15:12,730
This is the slide that, um, Professor
Schizer wor-- look, look, looked through

2430
03:15:12,730 --> 03:15:17,229
with you a little more than a week ago.
Um, but Professor Coates explained the

2431
03:15:17,230 --> 03:15:21,370
actual economics, 'cause this isn't the
actual economics. The actua-actual

2432
03:15:21,370 --> 03:15:22,390
economics are this.

2433
03:15:23,190 --> 03:15:27,890
Professor Schizer imagined an exceedingly
s-small pie-- piece of this very large

2434
03:15:27,890 --> 03:15:28,190
pie.

2435
03:15:28,990 --> 03:15:34,574
In fact, the actual share is enormous.$200
billion plus enormous.

2436
03:15:35,234 --> 03:15:41,134
That is not stealing from a charity. That
is creating untold v-value for a charity.

2437
03:15:41,134 --> 03:15:44,094
That's creating a three hundred and
thirty-three thousand

2438
03:15:44,934 --> 03:15:47,134
times rate of return for a charity.

2439
03:15:50,334 --> 03:15:53,774
Now, since the October 2025
recapitalization, about which you've heard

2440
03:15:53,774 --> 03:15:56,654
a bit, the foundation, the nonprofit, has
been,

2441
03:15:57,294 --> 03:15:57,474
um,

2442
03:15:59,894 --> 03:16:04,614
with the good fortune of owning a very big
chunk of the PBC, and it finally has

2443
03:16:04,614 --> 03:16:09,714
access to the resources it needs to fund
the initiatives that we've talked about. I

2444
03:16:09,714 --> 03:16:13,754
just wanna say it again, because the sum
available to this organization is

2445
03:16:13,754 --> 03:16:20,094
enormous, $200 billion plus. And I know
that in questions to witnesses and the

2446
03:16:20,094 --> 03:16:25,934
argument with you this morning, Mr. Mollo
has suggested that the foundation only

2447
03:16:25,934 --> 03:16:30,254
started hiring people recently, that it
only began to do the work that it's doing

2448
03:16:30,254 --> 03:16:37,054
because of this lawsuit. There is zero
truth to that. And putting aside

2449
03:16:37,054 --> 03:16:40,934
what's been said by a lawyer, which as the
judge has explained to you isn't

2450
03:16:40,934 --> 03:16:44,954
evidence, there is no evidence of that.
There's only one explanation in the

2451
03:16:44,954 --> 03:16:49,224
evidence, and it's the accurate one, which
is that the recapitalization transaction,

2452
03:16:49,224 --> 03:16:50,064
the restructuring,

2453
03:16:51,154 --> 03:16:56,594
consummated in October 2025, unlocked the
value that the OpenAI Foundation could put

2454
03:16:56,594 --> 03:17:02,134
to work and that it immediately set about
to putting those resources to work. It is

2455
03:17:02,134 --> 03:17:05,794
true that there has been a rapid
acceleration in the foundation's work.

2456
03:17:06,474 --> 03:17:10,874
The only reason for that is that it now
has the resources to do it. The evidence

2457
03:17:10,874 --> 03:17:15,354
on that question, members of the jury, is
one way. There are no-- there's nothing

2458
03:17:15,354 --> 03:17:17,874
from which one can draw an alternative
inference.

2459
03:17:21,314 --> 03:17:27,614
In no way, members of the jury, did Greg
Brockman or Sam Altman or Ilya Sutskever

2460
03:17:28,574 --> 03:17:33,474
or anyone else who helped build the value
that now resides in the for-profit steal

2461
03:17:33,474 --> 03:17:36,254
anything from the nonprofit. Against very
tall odds,

2462
03:17:36,974 --> 03:17:41,374
their work and sweat and innovation
created something, um, incredibly

2463
03:17:41,374 --> 03:17:45,894
valuable, startlingly valuable, admittedly
startlingly valuable for the nonprofit.

2464
03:17:46,514 --> 03:17:49,374
That's where the nonprofit's entire
endowment comes from.

2465
03:17:50,594 --> 03:17:50,734
And

2466
03:17:51,554 --> 03:17:56,274
on, on the subject further of, of
irrelevant things that Mr. Musk has sought

2467
03:17:56,274 --> 03:18:01,094
to make this case about, let me briefly
address the removal of Sam Altman and Greg

2468
03:18:01,094 --> 03:18:04,854
Brockman from OpenAI's board in November
2023. For sure,

2469
03:18:05,694 --> 03:18:09,634
um, members of the jury, this was a
difficult time in OpenAI's history.

2470
03:18:10,354 --> 03:18:14,194
Uh, for sure, several members of the board
were unhappy with Sam Altman's

2471
03:18:14,194 --> 03:18:18,934
management. Uh, some for sure accused him
of being less than candid,

2472
03:18:19,814 --> 03:18:24,874
principally in the sense of having said
two different people two different things

2473
03:18:24,874 --> 03:18:25,774
on the same topic.

2474
03:18:26,594 --> 03:18:26,714
But

2475
03:18:27,894 --> 03:18:29,834
let's keep an eye on the ball of how
things shook out.

2476
03:18:31,114 --> 03:18:35,674
Over ninety percent of OpenAI's employees,
including plaintiff's own witness, Rosie

2477
03:18:35,674 --> 03:18:40,374
Campbell, including Dr. Sutskever, signed
a petition to have Mr. Altman and Mr.

2478
03:18:40,374 --> 03:18:45,274
Brockman reinstated. These are the people
who worked most closely with these

2479
03:18:45,274 --> 03:18:49,874
executives day in and day out over the
course of years and years. They wanted

2480
03:18:49,874 --> 03:18:55,354
them back, both of them. Dr. Sutskever,
one of the members of the old OpenAI

2481
03:18:55,354 --> 03:19:00,084
board, signed that petition, and he voted
to have Altman and Brockman return.

2482
03:19:01,094 --> 03:19:06,134
You heard Dr. Sutskever testify that the
old board had acted rashly, without

2483
03:19:06,134 --> 03:19:10,494
adequate inquiry, without a succession
plan in place, without adequate

2484
03:19:10,494 --> 03:19:15,734
investigation on the strength of poor
legal advice, so as to have created chaos

2485
03:19:15,734 --> 03:19:16,394
at the company.

2486
03:19:17,114 --> 03:19:18,554
That was from Dr. Sutskever.

2487
03:19:19,254 --> 03:19:23,614
Ms. McCauley and Ms. Toner, two of the
other directors who'd done the removals,

2488
03:19:23,614 --> 03:19:27,934
they agreed that Alt-- bringing Altman
back was critical for the future of the

2489
03:19:27,934 --> 03:19:32,974
company. Adam, Adam D'Angelo, the fourth
vote, well, he stayed on the board. He's

2490
03:19:32,974 --> 03:19:36,004
still on the board. He voted to reinstate
Mr. Altman.

2491
03:19:36,694 --> 03:19:40,043
He voted to reinstate him as both a board
member and a CEO.

2492
03:19:41,374 --> 03:19:44,994
The new board members, Mr. Taylor, the
chair from whom you've heard, and Larry

2493
03:19:44,994 --> 03:19:49,854
Summers, they joined the board. They were
both contacted first by the outgoing

2494
03:19:49,854 --> 03:19:54,274
board, not by Altman. Summers was put on
the board over Microsoft's objection.

2495
03:19:55,314 --> 03:19:58,814
And importantly, as the outgoing board
demanded,

2496
03:19:59,934 --> 03:20:03,354
a thorough independent review was
conducted into just what happened in

2497
03:20:03,354 --> 03:20:08,194
November 2023, and after that review was
completed, Mr. Altman was reinstated to

2498
03:20:08,194 --> 03:20:09,094
the board of directors.

2499
03:20:11,494 --> 03:20:12,914
Sam Altman and Greg Brockman,

2500
03:20:13,574 --> 03:20:14,634
and OpenAI in general,

2501
03:20:15,534 --> 03:20:15,674
have,

2502
03:20:17,134 --> 03:20:19,894
have had to sort out what happened in
something that was

2503
03:20:20,634 --> 03:20:22,764
a, a big blowup, a lot of chaos,

2504
03:20:23,674 --> 03:20:27,704
and they had to sort out what to do to try
to make things better going forward.

2505
03:20:28,454 --> 03:20:32,774
In place now is a more robust, more mature
governance structure that reflects the

2506
03:20:32,774 --> 03:20:33,614
growth of the company.

2507
03:20:34,514 --> 03:20:39,174
Brockman and Altman and the management
team and this board, which as you saw, is

2508
03:20:39,174 --> 03:20:43,254
populated with exceedingly accomplished
individuals from all walks of life

2509
03:20:43,254 --> 03:20:44,444
relevant to this project,

2510
03:20:45,134 --> 03:20:49,104
um, have tried, and they're trying, and we
think the evidence is they're succeeding.

2511
03:20:49,104 --> 03:20:50,954
Now,

2512
03:20:52,594 --> 03:20:53,774
you may be asking yourself,

2513
03:20:54,414 --> 03:21:00,314
w-what does all of this have to do with
Mr. Musk's claim that in 2015 and 2017, he

2514
03:21:00,314 --> 03:21:04,294
was made some promise that was broken?
This all happened in 2023, and the answer

2515
03:21:04,294 --> 03:21:05,874
to that question is nothing. Um,

2516
03:21:06,914 --> 03:21:11,134
M-Musk's last rent donation was made in
2020, and we'll talk a bit about that.

2517
03:21:11,134 --> 03:21:15,084
That was three years before all of this.
His last quarterly donation was in

2518
03:21:15,894 --> 03:21:19,734
the middle of 2017, as you now know. It
was more than six years before all of

2519
03:21:19,734 --> 03:21:19,913
this.

2520
03:21:20,554 --> 03:21:24,314
The alleged promises that were made were
in the remote past.

2521
03:21:24,994 --> 03:21:30,954
Mr. Musk is raising this issue to divert
your attention from the facts that matter

2522
03:21:30,954 --> 03:21:37,906
for his claim.But since Mr. Musk has made
so much of November 2020, if you

2523
03:21:37,906 --> 03:21:42,716
ask yourself this, if Mr. Altman wasn't
committed to OpenAI and its mission,

2524
03:21:44,006 --> 03:21:45,246
which is what Mr. Musk claims,

2525
03:21:46,386 --> 03:21:48,626
why did he come back to OpenAI after being
fired?

2526
03:21:49,566 --> 03:21:53,946
He didn't have to do that. You heard that
he had a job offer at Microsoft. You know,

2527
03:21:53,946 --> 03:21:57,506
'cause you heard, that he could have gone
there and made an enormous amount of

2528
03:21:57,506 --> 03:22:01,446
money. He could have gone there with most
of his team. He could have pursued AI

2529
03:22:01,446 --> 03:22:01,906
there.

2530
03:22:02,806 --> 03:22:04,346
He wouldn't have had to think about the
mission again.

2531
03:22:05,686 --> 03:22:07,286
But he came back to OpenAI.

2532
03:22:08,266 --> 03:22:12,406
This is the proof of it. Here was a guy
who had a choice, a clear field to walk

2533
03:22:12,406 --> 03:22:16,496
away, to get into an organization that was
gonna pay him enormously. He'd

2534
03:22:17,106 --> 03:22:21,046
run the show, and he would not be
constrained by the mission. He said no. He

2535
03:22:21,046 --> 03:22:24,786
went back to OpenAI because he cared
about the team, and he cared about the

2536
03:22:24,786 --> 03:22:28,516
mission. He re-upped in circumstances
where he didn't have any obligation 'cause

2537
03:22:28,516 --> 03:22:30,946
he'd just been kicked out. He'd just been
kicked out on his ear.

2538
03:22:36,186 --> 03:22:37,346
Mr. Musk argues,

2539
03:22:38,066 --> 03:22:41,826
tells you, members of the jury, that these
events are relevant to his claim that

2540
03:22:41,826 --> 03:22:42,826
OpenAI

2541
03:22:42,866 --> 03:22:48,086
promised him to put safety first, and the
events of November 2023 aren't consistent

2542
03:22:48,086 --> 03:22:49,246
with that, but none of that is true.

2543
03:22:50,106 --> 03:22:55,316
OpenAI is and has been committed to
safety. That's not some special obligation

2544
03:22:55,316 --> 03:22:58,286
that's owed to Elon Musk. It's
fundamental to the mission of the

2545
03:22:58,286 --> 03:23:03,426
organization. And the events of November
2023, they were not about safety, members

2546
03:23:03,426 --> 03:23:07,626
of the jury. Uh, the board's own
statements from the time say it in black

2547
03:23:07,626 --> 03:23:11,336
and white. Let's have a look at the
statement that was issued. This decision,

2548
03:23:13,906 --> 03:23:16,726
the decision to, to remove Altman and
Brockman,

2549
03:23:17,366 --> 03:23:19,076
is not about product safety,

2550
03:23:19,826 --> 03:23:20,846
not about security,

2551
03:23:21,586 --> 03:23:26,526
not about the pace of development or
OpenAI's finances. It wasn't about those

2552
03:23:26,526 --> 03:23:31,286
things. It was about personality conflicts
and miscommunications that I don't wanna

2553
03:23:31,286 --> 03:23:33,706
minimize them. It was a, it was a blowup,

2554
03:23:34,866 --> 03:23:38,166
needed to be taken care of so it won't
happen again, but it wasn't about safety,

2555
03:23:38,166 --> 03:23:40,946
and if Mr. Musk's telling you the tr--
that, then he's not telling you the truth.

2556
03:23:40,946 --> 03:23:46,705
And as for h- where things stand today,
you heard from Zico Kolter, the chair of

2557
03:23:46,706 --> 03:23:48,786
Carnegie Mellon's Machine Learning
Department.

2558
03:23:49,666 --> 03:23:55,106
He's an OpenAI Foundation director. He's
one of the preeminent experts in AI safety

2559
03:23:55,106 --> 03:24:00,045
in the world, uh, and he testified, as
you heard, that the organization has a

2560
03:24:00,046 --> 03:24:01,746
robust nonprofit-only

2561
03:24:04,146 --> 03:24:07,986
procedure in place for ensuring the
rigorous review from a safety standpoint

2562
03:24:07,986 --> 03:24:09,326
of everything OpenAI does.

2563
03:24:10,686 --> 03:24:10,846
So

2564
03:24:11,506 --> 03:24:16,846
Musk's breach of charitable trust claim
fails for multiple independent reasons. He

2565
03:24:16,846 --> 03:24:22,146
has not proven that he created a trust.
Ms. Eddy demonstrated that. He has not

2566
03:24:22,146 --> 03:24:26,986
proven that he created a trust. Any trust
must have ended in September of 2020 when

2567
03:24:26,986 --> 03:24:30,606
the last dime of Mr. Musk's donations were
spent,

2568
03:24:31,406 --> 03:24:34,916
and there is no evidence that his
donations were misused. Indeed,

2569
03:24:35,686 --> 03:24:38,646
and it's an obvious fact, it's not in
dispute, but it needs to be said over and

2570
03:24:38,646 --> 03:24:44,206
over again because of the rhetoric from
the other side, OpenAI remains a charity.

2571
03:24:44,206 --> 03:24:49,706
OpenAI remains governed by a charity. The
charity is now bigger and stronger and

2572
03:24:49,706 --> 03:24:52,446
more empowered from a governance
perspective than ever.

2573
03:24:57,666 --> 03:25:01,146
I'd wanted members of the jury now to turn
from the charitable trust claim, and I

2574
03:25:01,146 --> 03:25:04,786
think we talked about all the things that
are relevant there and discuss

2575
03:25:05,666 --> 03:25:08,586
the second claim in the case, unjust
enrichment. Um,

2576
03:25:09,586 --> 03:25:10,346
and I think,

2577
03:25:10,946 --> 03:25:13,985
as Mr. Mollo said, on this much we can
agree, I think we can move a little bit

2578
03:25:13,986 --> 03:25:17,926
faster through this 'cause the facts
underlying this are mostly the same. So

2579
03:25:17,926 --> 03:25:20,906
we'll talk a bit about some of the same
ones, but we can, we can move more

2580
03:25:20,906 --> 03:25:21,366
quickly.

2581
03:25:22,106 --> 03:25:26,146
I did wanna say a word or two at the
outset about what restitution is.

2582
03:25:27,506 --> 03:25:29,886
The idea of restitution...

2583
03:25:31,366 --> 03:25:36,886
The idea of restitution is that the
plaintiff can return, demand the return of

2584
03:25:36,886 --> 03:25:38,046
something that he or she gave.

2585
03:25:38,966 --> 03:25:39,126
Um,

2586
03:25:39,886 --> 03:25:43,746
and so it's worth pausing for a moment on
the narrative that Mr. Mollo has advanced

2587
03:25:43,746 --> 03:25:46,126
as the basis for the claim. The idea

2588
03:25:46,886 --> 03:25:52,686
is that OpenAI is what it is because of
Elon Musk, that Elon founded it, that

2589
03:25:52,686 --> 03:25:56,886
Elon's ideas and his brilliance and his
connections, the Midas touch of Elon Musk

2590
03:25:56,886 --> 03:26:00,346
is what made OpenAI what it is today.
That's the thesis.

2591
03:26:01,066 --> 03:26:04,826
In his claims here, Mr. Musk wants to
claim credit for the whole thing,

2592
03:26:05,506 --> 03:26:08,306
for all that OpenAI is. Elon, Elon, Elon.

2593
03:26:08,986 --> 03:26:09,606
It was all me.

2594
03:26:12,846 --> 03:26:16,726
Mr. Musk wants all that credit, but he
hasn't earned all that credit.

2595
03:26:19,046 --> 03:26:21,466
For sure, he made some contributions early
on,

2596
03:26:22,306 --> 03:26:22,566
um,

2597
03:26:23,566 --> 03:26:26,666
but those contributions, remember, they
were all charitable donations.

2598
03:26:27,266 --> 03:26:30,586
Mr. Musk helped himself to millions in tax
deductions for those donations.

2599
03:26:34,046 --> 03:26:34,176
And

2600
03:26:35,506 --> 03:26:38,406
charitable donations are not seed money,

2601
03:26:39,486 --> 03:26:42,766
uh, as Mr. Musk started claiming in
October 2022.

2602
03:26:43,506 --> 03:26:46,906
You don't see any of the other donors, and
we'll talk about them for a second, who

2603
03:26:46,906 --> 03:26:51,146
gave far more in the aggregate than Mr.
Musk, raising their hand for a seed money

2604
03:26:51,146 --> 03:26:51,476
payout.

2605
03:26:52,246 --> 03:26:55,406
Um, it's an entire-- It's, it's really
quite a cynical position if you think

2606
03:26:55,406 --> 03:27:00,566
about it. Mr. Musk is comparing himself
here to venture capital fund, f- uh,

2607
03:27:00,566 --> 03:27:03,286
funders who make an investment and have
the

2608
03:27:04,106 --> 03:27:08,666
opportunity to, to reap a reward. But this
was supposed to be a donation. He took a

2609
03:27:08,666 --> 03:27:12,846
tax deduction, and the whole theory of his
claim is that there's a charitable

2610
03:27:12,846 --> 03:27:13,086
object.

2611
03:27:18,426 --> 03:27:23,006
The whole theory of his... Thank you, Your
Honor. The whole theory of his claim is

2612
03:27:23,006 --> 03:27:28,046
that this is a charity, and yet he wants,
when it suits him, to talk about himself

2613
03:27:28,046 --> 03:27:29,106
as a seed investor.

2614
03:27:31,066 --> 03:27:34,926
And as you heard from witness after
witness after witness, Mr. Musk abandoned

2615
03:27:34,926 --> 03:27:41,266
OpenAI for dead in 2018. Here it is from
Mr. Musk himself. It's DX853, and of

2616
03:27:41,266 --> 03:27:44,546
course, this will be one of the
documentsThat's with you as you consider

2617
03:27:44,546 --> 03:27:45,126
our claim.

2618
03:27:46,066 --> 03:27:50,706
My probability assessment of OpenAI being
relevant to DeepMind Google withou-without

2619
03:27:50,706 --> 03:27:54,466
a dramatic change in execution and
resources is zero percent.

2620
03:27:55,566 --> 03:27:59,086
Wanting to make sure he's mathematically
precise, he adds, "It's not one percent,

2621
03:27:59,746 --> 03:28:00,846
it's zero percent."

2622
03:28:01,546 --> 03:28:04,905
He thought that's what OpenAI's chances of
success were, were. But, but, but then

2623
03:28:04,906 --> 03:28:06,096
after Mr. Musk left,

2624
03:28:07,006 --> 03:28:08,446
slamming his door on the way out,

2625
03:28:09,606 --> 03:28:12,566
seeking to poach employees on the way out,

2626
03:28:12,926 --> 03:28:17,506
seeking to build his own A-AGI operation
at Tesla on the way out, after he slammed

2627
03:28:17,506 --> 03:28:22,356
the door behind him, an unexpected thing
happened. The organization began to

2628
03:28:22,356 --> 03:28:22,786
flourish.

2629
03:28:25,426 --> 03:28:29,906
Milestone upon technical milestone
occurred after February two thousand

2630
03:28:29,906 --> 03:28:32,286
eighteen, after Mr. Musk stormed out the
door.

2631
03:28:36,446 --> 03:28:41,586
Only after February two thousand eighteen
did the technology advance such that the

2632
03:28:41,586 --> 03:28:47,466
ant became the cat. And you will recall
Dr. Sutskever giving the analogy of the

2633
03:28:47,466 --> 03:28:51,305
growth of this industry in the manner
that's depicted on this screen.

2634
03:28:52,426 --> 03:28:54,776
And as Dr. Sutskever also testified,

2635
03:28:58,666 --> 03:29:03,526
the funds that OpenAI has raised were all
necessary to take advantage of this

2636
03:29:03,526 --> 03:29:05,006
technological progression.

2637
03:29:12,006 --> 03:29:15,306
Um, I wanna talk a little bit about
th-this slide with, with, with you members

2638
03:29:15,306 --> 03:29:20,666
of the jury. Um, for the thirty-eight
million dollars that Elon Musk donated way

2639
03:29:20,666 --> 03:29:25,156
back in the day, others contributed
nearly one hundred million dollars. And,

2640
03:29:25,156 --> 03:29:29,806
and remember, this is... We talked about
this when we first met several weeks ago.

2641
03:29:29,806 --> 03:29:32,906
This is one of those dogs that doesn't
bark. Just like you'd think there'd be a

2642
03:29:32,906 --> 03:29:37,386
document memorializing the agreement that
Mr. Musk said he had, you'd think that if

2643
03:29:37,386 --> 03:29:41,206
this was really a violation of the m-- of
the mission of this organization the way

2644
03:29:41,206 --> 03:29:44,146
it's been run, you'd think one of these
donors, a lot of sophisticated people gave

2645
03:29:44,146 --> 03:29:46,046
a lot of money, would have raised their
hands.

2646
03:29:46,786 --> 03:29:51,466
But they didn't. Not a single one of these
other donors has ever complained that

2647
03:29:51,466 --> 03:29:55,906
OpenAI has failed to respect its mission.
Not a single one of these other donors

2648
03:29:56,746 --> 03:30:01,006
has brought a lawsuit against M-- against
OpenAI. Only Mr. Musk has, only the

2649
03:30:01,006 --> 03:30:04,526
competitor. That's the only one who's
brought it. That's the only one of these

2650
03:30:04,526 --> 03:30:05,686
donors who's perceived

2651
03:30:06,406 --> 03:30:11,026
this unwritten, unspoken promise that was
allegedly made.

2652
03:30:12,306 --> 03:30:16,446
And then investors put in a hundred and
fifty billion dollars in investment

2653
03:30:16,446 --> 03:30:17,686
capital, not donations now,

2654
03:30:18,526 --> 03:30:19,436
in investment capital,

2655
03:30:20,306 --> 03:30:24,546
all needed to power the mission. And s-so
members of the jury have this in view.

2656
03:30:24,546 --> 03:30:29,006
Those investors, they still haven't had a
cent of return from that. So keep that in

2657
03:30:29,006 --> 03:30:33,205
mind. None of those investments have been
paid out to, to-- None of those

2658
03:30:33,206 --> 03:30:36,716
investments have been paid out by OpenAI
'cause it's not profitable. Now,

2659
03:30:37,326 --> 03:30:43,086
Mr. Mollo, in his conversation with, with
you this morning, conjured some imaginary

2660
03:30:43,086 --> 03:30:48,626
world in which OpenAI could have developed
without the Microsoft investment, some

2661
03:30:48,626 --> 03:30:51,046
imaginary w-world in which

2662
03:30:51,766 --> 03:30:53,916
s-s-- donations equivalent to what

2663
03:30:54,746 --> 03:30:56,686
Microsoft gave could have been,

2664
03:30:58,106 --> 03:31:00,146
could have been solicited and brought in
and

2665
03:31:00,786 --> 03:31:02,606
m-meet the do-- meet the demands of the
project.

2666
03:31:03,846 --> 03:31:08,006
A couple of things on this. You heard Mr.
Altman talk about beating the bushes, and

2667
03:31:08,006 --> 03:31:11,366
he raised fifty million dollars in two
thousand eighteen. That's a lot of money.

2668
03:31:11,366 --> 03:31:14,486
It's a lot of work, but it's nowhere near
what was required.

2669
03:31:15,246 --> 03:31:17,866
Remember also that there was supposed to
be a big anchor donor,

2670
03:31:18,546 --> 03:31:21,246
Mr. Musk, a billion dollars. Well, that
didn't happen.

2671
03:31:22,106 --> 03:31:27,096
And there is literally no evidence,
literally no evidence, that

2672
03:31:27,886 --> 03:31:32,146
anything like the amount necessary to
sustain this organization could have been

2673
03:31:32,146 --> 03:31:34,106
raised by donations. The best

2674
03:31:37,346 --> 03:31:41,446
Mr. Musk's team could come up with is an
organization that raises a great deal of

2675
03:31:41,446 --> 03:31:43,246
money a year, said to be over four
billion.

2676
03:31:44,046 --> 03:31:47,646
But you heard from the experts yesterday,
that's actually a hundred million dollars

2677
03:31:47,646 --> 03:31:53,386
a year of cash and leftovers from soup,
from restaurants and grocery stores. It's

2678
03:31:53,386 --> 03:31:59,766
all in-kind contributions. There is no
historical precedent, no universe in which

2679
03:31:59,766 --> 03:32:03,926
the capital resources of this
organization could have been funded from

2680
03:32:04,566 --> 03:32:10,045
private donations. So yeah, yeah, for
sure, Mr. Musk came by every week or so,

2681
03:32:10,046 --> 03:32:12,266
he gave some advice, and then he quit two
years in.

2682
03:32:13,986 --> 03:32:14,576
A-And after that,

2683
03:32:15,266 --> 03:32:16,286
Mr. Musk jumped ship,

2684
03:32:18,226 --> 03:32:20,376
and after-- and he tried to take some with
him,

2685
03:32:21,406 --> 03:32:25,556
but a lot of people stayed, hundreds
stayed, and then thousands were there. And

2686
03:32:25,556 --> 03:32:28,845
there are researchers and engineers who
have poured their life into this

2687
03:32:28,846 --> 03:32:34,486
organization, and it is they, members of
the jury, not Elon Musk, who have created

2688
03:32:34,486 --> 03:32:40,226
something enormously and surprisingly
valuable. Mr. Musk is not the one who

2689
03:32:40,226 --> 03:32:45,786
built OpenAI into what it is today. OpenAI
is what it is today despite his

2690
03:32:45,786 --> 03:32:52,786
predictions of certain doom, despite his
po-poaching of key employees, despite his

2691
03:32:52,786 --> 03:32:57,386
attempts to absorb it into his own
organization, his own for-profit car

2692
03:32:57,386 --> 03:33:02,026
company, and despite his public efforts to
tear it down. And as for the Midas touch,

2693
03:33:02,026 --> 03:33:04,666
not really, not here.

2694
03:33:05,606 --> 03:33:09,126
Consider what happened when Musk tried to
build AGI at Tesla.

2695
03:33:10,646 --> 03:33:13,306
It was a total fail, as my daughter would
say.

2696
03:33:13,946 --> 03:33:20,686
Mr. Musk may have the Midas touch in some
areas, but not in AI. This requires a

2697
03:33:20,686 --> 03:33:24,706
touch that he doesn't have. This is not a
bulldozer business.

2698
03:33:25,446 --> 03:33:28,196
To succeed in AI, as it turns out,

2699
03:33:28,966 --> 03:33:31,266
all Mr. Musk can do is come to court.

2700
03:33:38,106 --> 03:33:42,546
So that's one thing. OpenAI is not Mr.
Musk's creature, far from it, but even if

2701
03:33:42,546 --> 03:33:46,346
you accept that narrativeIt still doesn't
give him a legal claim, members of the

2702
03:33:46,346 --> 03:33:50,166
jury. So let's get detailed about what Mr.
Musk has to do to prove his claim.

2703
03:33:51,046 --> 03:33:53,746
For unjust enrichment, Mr. Musk has named
four defendants:

2704
03:33:54,576 --> 03:33:55,786
the nonprofit itself,

2705
03:33:57,866 --> 03:33:58,706
the PBC,

2706
03:33:59,826 --> 03:34:00,526
Mr. Altman,

2707
03:34:01,226 --> 03:34:01,976
and Mr. Brockman.

2708
03:34:02,586 --> 03:34:06,766
And to carry his burden on that claim
against any one of these defendants,

2709
03:34:07,786 --> 03:34:12,166
Musk has to show two things for each of
them. He has to show that the defendant

2710
03:34:12,166 --> 03:34:13,226
received a benefit,

2711
03:34:14,906 --> 03:34:19,226
and he has to secondly show that the
defendant unjustly retained the benefit at

2712
03:34:19,226 --> 03:34:20,886
Mr. Musk's expense.

2713
03:34:21,686 --> 03:34:23,366
Let's, let's quickly, um,

2714
03:34:24,446 --> 03:34:28,006
talk about how this analysis plays out
against the backdrop of the evidence,

2715
03:34:28,006 --> 03:34:28,946
against each of these,

2716
03:34:29,636 --> 03:34:32,386
uh, each of these defendants, 'cause
members of the jury, that's what you're

2717
03:34:32,386 --> 03:34:35,046
gonna have to do when you go and sit
together and, and s- figure out how the

2718
03:34:35,046 --> 03:34:37,936
pieces fit together. Um, starting with the
OpenAI Foundation,

2719
03:34:38,926 --> 03:34:39,186
I think

2720
03:34:40,326 --> 03:34:44,346
w- we, we can agree that the OpenAI
Foundation, previously OpenAI Inc.,

2721
03:34:44,346 --> 03:34:46,006
received a benefit from Mr. Musk.

2722
03:34:46,626 --> 03:34:50,086
Um, back in twenty sixteen to twenty
twenty, it got-- it received donations

2723
03:34:50,086 --> 03:34:51,196
from him. Um,

2724
03:34:54,026 --> 03:34:54,246
so,

2725
03:34:55,276 --> 03:35:00,046
uh, but, but, but the problem with that
is, is he, he, he has to show that those

2726
03:35:00,046 --> 03:35:05,486
benefits were unjustly retained at his
expense. It's not enough to say, "I gave

2727
03:35:05,486 --> 03:35:09,586
money." He has to show that there were
benefits that were unjustly retained and

2728
03:35:09,586 --> 03:35:13,066
at his expense, 'cause otherwise anyone
who gave money to a charity could bring a

2729
03:35:13,066 --> 03:35:16,386
lawsuit and tell it what to do, and you
know that's not the law. And there are two

2730
03:35:16,386 --> 03:35:20,606
pieces to this, Your Honor, uh, members
of the jury. Um, one is unjust enrichment,

2731
03:35:21,266 --> 03:35:25,346
and the other is at Musk's expense. I
wanna break those pieces down to, to try

2732
03:35:25,346 --> 03:35:28,326
and roadmap this for you. Let me start
with the second piece,

2733
03:35:28,926 --> 03:35:32,886
um, which is a slightly technical piece.
Um, I'll, I'll warn you in advance, but

2734
03:35:32,886 --> 03:35:33,506
it's important.

2735
03:35:34,646 --> 03:35:39,466
Um, was the alleged unjust reten-
retention at Musk's expense?

2736
03:35:40,586 --> 03:35:45,506
All of the evidence in this case shows
that Musk did not give money to OpenAI

2737
03:35:45,506 --> 03:35:47,946
directly. He did not give it to it
directly.

2738
03:35:48,706 --> 03:35:52,786
M- Mr. Musk donated money to one
organization, and that organization then

2739
03:35:52,786 --> 03:35:54,646
paid the money out through intermediaries.

2740
03:35:55,386 --> 03:35:56,106
The cash flow

2741
03:35:56,806 --> 03:36:00,866
is set out on this slide. Mr. Musk gave
money to these donor-advised funds and the

2742
03:36:00,866 --> 03:36:04,586
sponsor organization, and it gave the
money to OpenAI.

2743
03:36:05,466 --> 03:36:08,746
These were tax-engineered two-step
transactions

2744
03:36:10,466 --> 03:36:12,036
-w- w- where-
-Objection, Your Honor

2745
03:36:12,036 --> 03:36:12,786
... organized.

2746
03:36:14,386 --> 03:36:16,146
Um, related to the summary judgment.

2747
03:36:21,426 --> 03:36:25,046
Your Honor, we fully understand the
summary judgment ruling. We think it's

2748
03:36:25,046 --> 03:36:27,246
important to have the jury

2749
03:36:28,526 --> 03:36:30,126
ruling this issue as a matter of fact.

2750
03:36:32,086 --> 03:36:36,106
Well, they can understand it. I, I, I
thought that the objection was gonna be

2751
03:36:36,106 --> 03:36:40,266
with respect to tax-engineered. I mean,
these are legitimate transactions.

2752
03:36:41,646 --> 03:36:43,566
I don't exactly know what you mean by
that,

2753
03:36:44,406 --> 03:36:44,686
um.

2754
03:36:45,906 --> 03:36:48,366
M- my, my point, members of the jury, is
that, um,

2755
03:36:49,066 --> 03:36:53,946
Musk lost ownership of these transactions
at the first step.

2756
03:36:54,746 --> 03:36:56,706
It wasn't his money anymore. He gave it
away,

2757
03:36:57,406 --> 03:36:59,566
and then these organizations gave it to
OpenAI.

2758
03:37:00,346 --> 03:37:05,506
And so if the nonprofit unjustly retained
these funds, it wasn't at Musk's expense.

2759
03:37:06,606 --> 03:37:09,326
It was at the expense of third parties
that actually made the payment,

2760
03:37:10,486 --> 03:37:12,926
and that's important. But even if that
weren't true,

2761
03:37:13,586 --> 03:37:17,366
um, there's no basis here to find that the
nonprofit's retention of Mr. Musk's

2762
03:37:17,366 --> 03:37:19,026
contributions was unjust.

2763
03:37:19,966 --> 03:37:25,826
As Judge Gonzales Rogers has instructed
you, and I'm quoting now, "In determining

2764
03:37:25,826 --> 03:37:30,646
whether a benefit was unjustly retained,
you may consider whether plaintiff showed

2765
03:37:30,646 --> 03:37:35,506
that a defendant knew or had reason to
know that the benefit was to be used for

2766
03:37:35,506 --> 03:37:40,746
charitable purposes and then was not." And
there is no such misuse here, members of

2767
03:37:40,746 --> 03:37:46,026
the jury. All of the funds that Mr. Musk
donated were spent by September twenty

2768
03:37:46,026 --> 03:37:50,306
twenty. This is the testimony at the end
of trial that you heard from Mr. Dudney,

2769
03:37:50,926 --> 03:37:54,806
and he's a forensic accountant, and it
turns out forensic accounting can be very

2770
03:37:54,806 --> 03:37:59,126
important in a case like this because he
showed where'd the money go. He followed

2771
03:37:59,126 --> 03:38:04,346
the money, and what he found is that all
the money that Mr. Musk gave was spent. It

2772
03:38:04,346 --> 03:38:08,746
was spent by twenty twenty. There was
nothing left after that. And there's no

2773
03:38:08,746 --> 03:38:13,686
evidence that any of those dollars were
used on anything other than OpenAI's

2774
03:38:13,686 --> 03:38:18,146
nonprofit activities. You also heard that
from Mr. Dudney, and you heard the same

2775
03:38:18,146 --> 03:38:22,106
thing from Mr. Birchall, who was asked,
"Do you have any reason to believe that

2776
03:38:22,106 --> 03:38:23,606
donations Mr. Musk made

2777
03:38:24,646 --> 03:38:26,706
were not used for exactly that purpose?

2778
03:38:27,806 --> 03:38:28,226
Correct."

2779
03:38:30,036 --> 03:38:33,986
This is a guy who works for Mr. Musk,
handles his books, and his answer was,

2780
03:38:33,986 --> 03:38:40,886
"Correct." He knew that OpenAI spent every
single dollar that Musk gave exactly for

2781
03:38:40,886 --> 03:38:44,406
the purpose that it was given. The
foundation didn't retain the money. It

2782
03:38:44,406 --> 03:38:48,206
spent the money precisely as it was
supposed to be spent, for general

2783
03:38:48,206 --> 03:38:53,286
charitable purposes, and none of Mr.
Musk's money is left. There was no unjust

2784
03:38:53,286 --> 03:38:58,326
retention, members of the jury, and
therefore, there can't be any restitution.

2785
03:38:58,326 --> 03:39:04,866
So that's the OpenAI, um, foundation.
Let's talk about the other defendants from

2786
03:39:04,866 --> 03:39:07,976
an unjust enrichment perspective, members
of the jury. How, how do these,

2787
03:39:08,886 --> 03:39:13,746
how do these elements apply to Mr. Altman
and Mr. Brockman? Let me, um, let, let me

2788
03:39:13,746 --> 03:39:15,346
start with Mr. Brockman. Um,

2789
03:39:19,486 --> 03:39:20,986
for, for this claim, the

2790
03:39:21,786 --> 03:39:22,806
i- idea is that

2791
03:39:23,426 --> 03:39:25,226
the donations Mr. Musk made

2792
03:39:25,926 --> 03:39:31,006
twenty sixteen to twenty twenty created an
unjust rich-- uh, an unjust benefit to,

2793
03:39:31,006 --> 03:39:34,486
to Greg Brockman, and it fails largely for
the same reason that I was just

2794
03:39:34,486 --> 03:39:39,706
discussing. There was non- nothing
unjustly retained at Mr. Musk's expense as

2795
03:39:39,706 --> 03:39:40,726
the law requires.

2796
03:39:42,166 --> 03:39:42,326
Um,

2797
03:39:43,886 --> 03:39:49,514
Mr. Mollo points to Greg Brockman's equity
stake in, in OpenAIIn the OpenAI PVC, and

2798
03:39:49,514 --> 03:39:53,573
I know you know that 'cause he said it a
whole, whole lot. But Mr. Brockman, this

2799
03:39:53,574 --> 03:39:56,814
is important, he didn't receive the equity
from Mr. Musk.

2800
03:39:57,414 --> 03:40:01,134
Mr. Musk had nothing to do with the giving
of that equity. Mr. Musk wasn't

2801
03:40:01,134 --> 03:40:04,514
associated with OpenAI when the equity was
granted. He had already quit.

2802
03:40:05,374 --> 03:40:10,494
Brockman was, received his equity stake
from the OpenAI nonprofit after Mr. Musk

2803
03:40:10,494 --> 03:40:10,914
was gone,

2804
03:40:11,734 --> 03:40:15,754
and the value of that equity was built
without any benefit conferred by Musk,

2805
03:40:15,754 --> 03:40:16,984
without any input from him,

2806
03:40:17,654 --> 03:40:21,154
during years when he was claiming loudly
that OpenAI was doomed to fail.

2807
03:40:21,834 --> 03:40:26,794
And what's more, there's nothing from a
legal perspective unjust about Brockman's

2808
03:40:26,794 --> 03:40:28,514
having this equity. Now, we agree,

2809
03:40:29,174 --> 03:40:32,454
and I don't-- I wouldn't ever suggest to
the contrary, 'cause you look at these

2810
03:40:32,454 --> 03:40:34,374
numbers and they're, wow, they're big
numbers. Um,

2811
03:40:35,634 --> 03:40:38,154
if, if OpenAI continues on the path that
it's on,

2812
03:40:39,394 --> 03:40:40,354
the equity is worth,

2813
03:40:41,134 --> 03:40:45,034
on paper at least, just a crazy amount of
money. Crazy amount of money, for sure.

2814
03:40:45,694 --> 03:40:50,494
Um, but the reason it's crazy is because
of the value that's been created by the

2815
03:40:50,494 --> 03:40:52,374
business that all of these people

2816
03:40:53,374 --> 03:40:55,434
and the investors and the other employees,

2817
03:40:56,414 --> 03:40:56,534
uh,

2818
03:40:57,854 --> 03:41:01,434
created in the for-profit that's
controlled by the not-for-profit, and

2819
03:41:01,434 --> 03:41:05,694
that's how equity works. I know you know
this. You invest money or you invest your

2820
03:41:05,694 --> 03:41:09,274
sweat equity, your time and your talent,
and you see what value you can build.

2821
03:41:09,894 --> 03:41:11,754
If it's not much, you don't get anything.

2822
03:41:12,734 --> 03:41:14,754
If it's a lot, you get a slice of a lot,

2823
03:41:15,474 --> 03:41:18,914
and that's what happened to Greg Brockman.
And this raises an important point I

2824
03:41:18,914 --> 03:41:23,414
think worth pausing on for a second. In
two thousand and nineteen, when Brockman

2825
03:41:23,414 --> 03:41:26,624
received his equity, the, the testimony on
this and the evidence is clear,

2826
03:41:27,344 --> 03:41:31,414
um, no one had any idea that the equity
would be worth anything,

2827
03:41:32,134 --> 03:41:36,134
let alone billions of dollars. No one
knew. You, you-- we look at things from

2828
03:41:36,134 --> 03:41:38,354
the perspective in today and say, "Well,
yeah,"

2829
03:41:38,954 --> 03:41:41,394
but that's not the relevant question. What
did it look like in two thousand and

2830
03:41:41,394 --> 03:41:44,354
nineteen? I'll tell you what it looked
like in two thousand and nineteen. The

2831
03:41:44,354 --> 03:41:47,654
thing had no money. It couldn't raise
enough money to keep its business off the

2832
03:41:47,654 --> 03:41:48,014
ground.

2833
03:41:48,654 --> 03:41:51,854
Elon Musk was going around telling
everyone hither, thither, and yon that the

2834
03:41:51,854 --> 03:41:55,454
thing was worth zero, that it had no
chance of succe-- That's what it looked

2835
03:41:55,454 --> 03:41:55,754
like.

2836
03:41:56,454 --> 03:41:57,373
That's what it looked like.

2837
03:41:58,034 --> 03:41:59,254
So Brockman got, um,

2838
03:42:00,294 --> 03:42:00,914
Brockman got

2839
03:42:02,094 --> 03:42:03,234
a, a slice of the equity.

2840
03:42:04,254 --> 03:42:08,374
Who knew what it would be worth? Now, it
turns out this has turned out to be, to be

2841
03:42:08,374 --> 03:42:13,894
incredibly, astonishingly valuable. But
a-and with twenty/twenty hindsight we

2842
03:42:13,894 --> 03:42:18,134
know, but only with twenty/twenty
hindsight we know, that this was the rare

2843
03:42:18,134 --> 03:42:22,214
organization that succeeded. Musk
complains now about the value of that

2844
03:42:22,214 --> 03:42:22,474
stake.

2845
03:42:23,194 --> 03:42:23,854
That's cynical.

2846
03:42:24,974 --> 03:42:25,663
As you've seen,

2847
03:42:26,534 --> 03:42:31,204
the organization was premised on employees
being paid startup-like compensation, and

2848
03:42:31,204 --> 03:42:35,214
Mr. Musk knows better than anyone that
when a startup works, and most of them

2849
03:42:35,214 --> 03:42:35,514
don't,

2850
03:42:36,294 --> 03:42:40,834
the valuations become large. More often
than not, they're not worth anything. Hang

2851
03:42:40,834 --> 03:42:44,914
on just one second on this slide, 'cause
I wanted to stop for a second before

2852
03:42:44,914 --> 03:42:46,214
talking about that and just,

2853
03:42:46,854 --> 03:42:46,994
um,

2854
03:42:48,214 --> 03:42:53,254
o-observe that Mr. Mollo made an
inflammatory analogical analogy to some

2855
03:42:53,254 --> 03:42:55,924
kind of a bank robbery when he was
chatting with you this morning. I'm su-- I

2856
03:42:55,924 --> 03:42:58,894
expect you recall that. But what he left
out is that

2857
03:42:59,774 --> 03:43:05,274
in this analogy, Sam Altman and Greg
Brockman and everyone else at OpenAI put

2858
03:43:05,274 --> 03:43:08,694
all the money in the bank in the first
place, because the money that counted here

2859
03:43:08,694 --> 03:43:13,294
were the ideas and the science and the
sweat equity after the for-profit was

2860
03:43:13,294 --> 03:43:13,734
created,

2861
03:43:14,514 --> 03:43:18,834
after Mr. Musk was gone. And then they
dedicated two hundred billion dollars of

2862
03:43:18,834 --> 03:43:23,794
what was created for charitable purposes,
and a great deal of the additional funds

2863
03:43:23,794 --> 03:43:26,834
were paid out or reserved for the
investors who--

2864
03:43:28,174 --> 03:43:32,334
Microsoft and other investors who made it
all possible. Has anyone heard of a bank

2865
03:43:32,334 --> 03:43:36,494
robbery where the bank robbers invented
the bank and put two hundred billion

2866
03:43:36,494 --> 03:43:40,334
dollars into it? That's not a bank
robbery. This wasn't a bank robbery. It's

2867
03:43:40,334 --> 03:43:44,514
an extreme illogical and just inflammatory
analogy.

2868
03:43:45,794 --> 03:43:49,434
And it's worth comparing, and now let me
look at the slide that, that we were

2869
03:43:49,434 --> 03:43:52,174
gonna, we were gonna talk about. It's
worth comparing with that in view

2870
03:43:52,894 --> 03:43:56,974
Brockman's position to what Elon Musk
himself thought Greg should get way back

2871
03:43:56,974 --> 03:43:59,394
in twenty seventeen when they were
negotiating shares.

2872
03:44:00,114 --> 03:44:03,874
Elon was going to give himself... Remember
this. Elon was going to give himself

2873
03:44:03,874 --> 03:44:08,374
between fifty-one and sixty-two percent of
the equity when he thought he could

2874
03:44:08,374 --> 03:44:13,074
control this organization. Here's the
proposal that Elon reviewed and that we

2875
03:44:13,074 --> 03:44:15,734
examined with several witnesses in trial.
I'm sure you recall it.

2876
03:44:16,794 --> 03:44:20,534
Elon's at fifty-five percent, Brockman is
at seven point five percent.

2877
03:44:21,354 --> 03:44:23,354
And what's interesting is what Elon wanted
to give him

2878
03:44:23,954 --> 03:44:28,894
was a lot more than what Brockman actually
has now, which is only four percent, give

2879
03:44:28,894 --> 03:44:33,414
or take. And the point is, is that
Brockman received no equity from Elon

2880
03:44:33,414 --> 03:44:34,054
Musk, none,

2881
03:44:34,894 --> 03:44:39,154
and he can't be called upon to restore it
to Elon Musk. And even if the equity here

2882
03:44:39,154 --> 03:44:42,974
was something received from Musk and
restorable to him, all of what we're

2883
03:44:42,974 --> 03:44:47,294
talking about shows that in, understood in
context, this was not unjust.

2884
03:44:48,424 --> 03:44:52,534
The same goes for any value that Sam
Altman has by virtue of his

2885
03:44:52,534 --> 03:44:58,254
association with the OpenAI for-profit.
Um, M-Mr. Mollo,

2886
03:44:59,114 --> 03:44:59,274
um,

2887
03:45:00,754 --> 03:45:04,874
spent a lot of his time this morning
attacking, um, Mr. Altman. He said that

2888
03:45:04,874 --> 03:45:09,394
Mr. Altman lied about having an equity
stake in OpenAI. I don't think that's true

2889
03:45:09,394 --> 03:45:10,974
or fair or supported by the evidence.

2890
03:45:11,614 --> 03:45:15,594
Mr. Altman, I don't think this is
disputed, does not have any direct equity

2891
03:45:15,594 --> 03:45:20,394
stake in OpenAI. He has never received an
equity grant from OpenAI or its board.

2892
03:45:21,054 --> 03:45:26,174
Um, w- he does have-- He owns something
that's akin to a mutual fund, and that

2893
03:45:26,174 --> 03:45:31,454
mutual fund has a position in OpenAI. He
wasn't responsible for that investment.

2894
03:45:31,454 --> 03:45:35,674
You heard his testimony. He has no control
over that. You heard-

2895
03:45:37,134 --> 03:45:38,234
Oh, thank you, Your Honor.

2896
03:45:39,094 --> 03:45:39,274
Um,

2897
03:45:40,274 --> 03:45:46,334
and, uh, the claim that th-there was a lie
here is itself untrue.

2898
03:45:47,254 --> 03:45:52,094
Um, and Mr. Mollo has tried to argue that
Sam Altman should pay restitution of

2899
03:45:52,094 --> 03:45:56,574
whatever value he's gained from
transactions between OpenAI and companies

2900
03:45:56,574 --> 03:46:01,302
in which he has an interest.But here
again, one, this isn't something that was

2901
03:46:01,302 --> 03:46:07,021
received from Mr. Musk. Mr. Musk was long
gone, and it isn't unjust anyway, members

2902
03:46:07,022 --> 03:46:09,002
of the jury. Altman was recused

2903
03:46:09,602 --> 03:46:13,302
from every transaction that you heard
about. There is no evidence on the other

2904
03:46:13,302 --> 03:46:17,832
side of this question. Brett Taylor, the
chair of the board, testified to it.

2905
03:46:17,832 --> 03:46:21,442
There's nothing on the other side of it.
Altman test-- nothing on the other side of

2906
03:46:21,442 --> 03:46:25,532
it. There's just a lawyer saying
something, and that's not evidence. Um,

2907
03:46:27,182 --> 03:46:27,192
uh,

2908
03:46:28,322 --> 03:46:32,542
Mr. Mollo talked about Helion, and he
forgot to mention that OpenAI has not paid

2909
03:46:32,542 --> 03:46:33,502
Helion a penny.

2910
03:46:34,102 --> 03:46:39,182
Um, and massively missing from the
presentation here is what exactly is the

2911
03:46:39,182 --> 03:46:42,182
value? Mr. Mollo this morning said big
dollars.

2912
03:46:42,902 --> 03:46:47,142
Well, that's not a legal claim. Um, no
attempt has even been made to value this,

2913
03:46:47,142 --> 03:46:51,242
and there's no way it could be valued, and
there's certainly no way it's unjust,

2914
03:46:51,242 --> 03:46:55,822
it's unjust enrichment. Every one of these
transactions was approved by OpenAI's

2915
03:46:55,822 --> 03:47:00,502
independent directors, and Brett Taylor
explained why these deals are good for

2916
03:47:00,502 --> 03:47:04,262
OpenAI, at least in the judgment of the
people responsible for managing it, which

2917
03:47:04,262 --> 03:47:07,382
does not include Mr. Musk. There's no
evidence at all to the contrary.

2918
03:47:09,022 --> 03:47:13,502
So that's what we, uh, have for unjust
enrichment. The bottom line is that while

2919
03:47:13,502 --> 03:47:16,982
Mr. Musk conferred a benefit on the
nonprofit way back in the day,

2920
03:47:17,702 --> 03:47:22,682
that benefit was not retained at any
expense to Mr. Musk and was not misused in

2921
03:47:22,682 --> 03:47:27,222
-any event. The restitution claim-
-Your Honor, I, I object again.

2922
03:47:30,322 --> 03:47:33,042
I'll deal with it later. Overruled at this
juncture.

2923
03:47:34,322 --> 03:47:38,422
He has standing to sue, and that's what I
dealt with.

2924
03:47:42,622 --> 03:47:43,962
-Proceed.
-Thank you, Your Honor.

2925
03:47:46,922 --> 03:47:51,182
The last thing, uh, that I'd wanted to do
now, members of the jury, is to address

2926
03:47:51,802 --> 03:47:54,182
the statute of limitations, excuse me, and
other

2927
03:47:55,062 --> 03:48:00,122
defenses we have to Mr. Musk's claim. Mr.
Mollo, uh, told you this morning that the

2928
03:48:00,122 --> 03:48:01,832
statute of limitations is a technicality.

2929
03:48:03,022 --> 03:48:06,502
Well, Judge Gonzales Rogers is going to
tell you that you should address this

2930
03:48:06,502 --> 03:48:07,162
issue first,

2931
03:48:07,861 --> 03:48:08,022
um,

2932
03:48:09,022 --> 03:48:10,242
and that's because it's important.

2933
03:48:11,202 --> 03:48:15,102
And I say it's important because the
statute of limitations exists for an

2934
03:48:15,102 --> 03:48:20,582
important reason. It protects defendants
from opportunistic lawsuits. It protects

2935
03:48:20,582 --> 03:48:25,542
defendants from advantage-taking in court.
As you've seen, if you wait around years

2936
03:48:25,542 --> 03:48:27,282
and years and years and years,

2937
03:48:28,242 --> 03:48:29,282
then file your lawsuit,

2938
03:48:29,962 --> 03:48:34,382
evidence gets lost. People forget what
happened. You've seen a lot of that here,

2939
03:48:34,382 --> 03:48:35,862
particularly with Musk and his witnesses.

2940
03:48:36,822 --> 03:48:41,602
I don't recall. I don't remember. I don't
recall. I don't remember. We went and

2941
03:48:41,602 --> 03:48:45,592
tried to count up the number of times that
this was said. It was somewhere between a

2942
03:48:45,592 --> 03:48:49,982
hundred and fifty and two hundred times
in this, in this, in this trial. I don't

2943
03:48:49,982 --> 03:48:51,991
remember. I forget. Can't recall.

2944
03:48:52,882 --> 03:48:56,642
Well, and nearly all of them were on the
Musk side of the case, members of the

2945
03:48:56,642 --> 03:48:59,092
jury. That's why it's unfair to bring a
claim too late,

2946
03:48:59,742 --> 03:49:02,802
because you can't put, you can't put the
evidence in front of you

2947
03:49:03,422 --> 03:49:04,882
because it's too easy to say, "I don't
remember."

2948
03:49:06,482 --> 03:49:10,962
Um, and there's more. The statute of
limitations recognizes that if you have a

2949
03:49:10,962 --> 03:49:12,382
real claim, you bring it.

2950
03:49:13,562 --> 03:49:16,762
You bring it when you realize you have it.
You don't wait around. If it's

2951
03:49:16,762 --> 03:49:20,202
substantial enough, if it's based in
evidence, if it's real, you, you're, you

2952
03:49:20,202 --> 03:49:22,562
gotta get going and make your case. That's
the idea.

2953
03:49:23,742 --> 03:49:28,162
If you think someone is doing something
wrong, stop it. Take action. You don't let

2954
03:49:28,162 --> 03:49:33,162
it go on and on and then sue when it's
convenient to you. That's what happened

2955
03:49:33,162 --> 03:49:33,342
here.

2956
03:49:34,482 --> 03:49:37,682
Here are the instructions, members of the
jury, that you'll take back with you on

2957
03:49:37,682 --> 03:49:39,662
the statute of limitations. They tell you

2958
03:49:40,482 --> 03:49:44,382
that if you find Mr. Musk could have
brought this lawsuit before August fifth,

2959
03:49:44,382 --> 03:49:49,292
twenty twenty-one, then for both of his
claims, the burden is on him to prove that

2960
03:49:49,292 --> 03:49:53,482
he did not know of those facts and that
he could not have discovered them with

2961
03:49:53,482 --> 03:49:54,542
reasonable diligence.

2962
03:49:56,722 --> 03:50:00,142
Applying those instructions, members of
the jury, you should find in this lawsuit

2963
03:50:00,142 --> 03:50:01,462
that it comes much too late.

2964
03:50:03,222 --> 03:50:06,262
Uh, we've already reviewed much of the
evidence that proves this. The things that

2965
03:50:06,262 --> 03:50:08,002
Mr. Musk is complaining about now,

2966
03:50:08,802 --> 03:50:13,901
um, as far as we can tell, given the
changes in the account from plaintiff, are

2967
03:50:13,901 --> 03:50:15,062
that, one,

2968
03:50:15,772 --> 03:50:21,662
OpenAI built a substantial for-profit
organization. Two, OpenAI doesn't open

2969
03:50:21,662 --> 03:50:26,922
source its latest models. And three,
OpenAI has a close partnership with

2970
03:50:26,922 --> 03:50:29,722
Microsoft. Every single one of these
things

2971
03:50:30,502 --> 03:50:34,092
was true years ago, um, well before August
fifth, twenty twenty-one,

2972
03:50:34,842 --> 03:50:39,322
which is the most generous of the statute
of limitations available to Mr. Musk. And

2973
03:50:39,322 --> 03:50:43,541
Mr. Musk can't carry his burden of showing
he was kept in the dark all these years.

2974
03:50:43,542 --> 03:50:46,542
In fact, the opposite's true, and I'll
walk, I'll walk quickly through some of

2975
03:50:46,542 --> 03:50:49,582
the reasons I say that with you. Uh,
there's a lot of evidence, starting with

2976
03:50:49,582 --> 03:50:51,862
Mr. Musk's testimony right here in that
chair.

2977
03:50:52,742 --> 03:50:57,342
He told you that as early as twenty
seventeen, he felt that Brockman and

2978
03:50:57,342 --> 03:51:01,342
Altman really, what they really wanted to
do was to create a for-profit where they

2979
03:51:01,342 --> 03:51:05,282
had mu-- as much shareholder ownership as
possible. That's what he told you sitting

2980
03:51:05,282 --> 03:51:06,842
in that box. In twenty seventeen,

2981
03:51:07,962 --> 03:51:11,262
he'd concluded that Brockman and Altman
wanted to create a for-profit where they

2982
03:51:11,262 --> 03:51:15,322
had much, as much shareholder ownership as
possible. But Musk took no steps then.

2983
03:51:15,322 --> 03:51:21,662
You will also recall the testimony of
Siobhan Sylas and Mr. Altman of a meeting

2984
03:51:21,662 --> 03:51:27,562
in, in August twenty seventeen at Tesla's
Deer Creek Road headquarters, where Altman

2985
03:51:27,562 --> 03:51:33,042
walked Musk through a draft term sheet
contemplating creation of the for-profit.

2986
03:51:37,122 --> 03:51:37,342
So

2987
03:51:38,782 --> 03:51:42,202
I just wanna linger on this because before
this term sheet, which I'm gonna turn to

2988
03:51:42,202 --> 03:51:46,342
in a moment, about what's, it was, it was
a week to ten days before this, Altman

2989
03:51:46,342 --> 03:51:51,032
drove down to Tesla's headquarters and had
a meeting discussing this term sheet with

2990
03:51:51,032 --> 03:51:52,102
Mr., with Mr. Musk.

2991
03:51:52,762 --> 03:51:56,742
Then a few days later, he sends it to him,
puts it in his inbox. The term sheet

2992
03:51:56,742 --> 03:52:00,942
makes clear that by no later than this
date, August twenty eighteen, OpenAI was

2993
03:52:00,942 --> 03:52:07,006
planning to launch a for-profit.No
question about it, that would attract more

2994
03:52:07,006 --> 03:52:11,306
than ten billion dollars, ten billion
plus in capital, and hope to return

2995
03:52:12,866 --> 03:52:15,586
enormous amounts of money to those
investors in the form

2996
03:52:16,846 --> 03:52:17,686
of profit.

2997
03:52:18,886 --> 03:52:22,466
This is as clear and direct notice as you
could have.

2998
03:52:23,726 --> 03:52:27,646
Now, remember at his deposition, members
of the jury, Mr. Musk, uh, testified that

2999
03:52:27,646 --> 03:52:31,986
he couldn't remember, just couldn't recall
whether he'd read the term sheet. At

3000
03:52:31,986 --> 03:52:32,446
trial,

3001
03:52:33,486 --> 03:52:35,106
Mr. Musk had a recovered memory.

3002
03:52:35,846 --> 03:52:38,746
Um, turns out he had read only the purple
box,

3003
03:52:39,546 --> 03:52:42,896
the disclaimer at the top. This seems
improbable. Um,

3004
03:52:43,526 --> 03:52:45,386
this was a four-page summary document.

3005
03:52:46,126 --> 03:52:48,646
Altman presented it to him at an in-person
meeting,

3006
03:52:49,666 --> 03:52:55,746
and then sent it by email directly to him
on a subject that Mr. Musk claims to have

3007
03:52:55,746 --> 03:52:57,336
cared about a great deal.

3008
03:52:58,066 --> 03:53:04,346
Mr. Mollo told you this morning that Mr.
Musk is tremendously passionate about

3009
03:53:04,346 --> 03:53:06,566
artificial intelligence, yet he
couldn't... This is what, this is what the

3010
03:53:06,566 --> 03:53:10,726
term sheet looks like. I-a hard copy. So
it's, this is not small print. It's a

3011
03:53:10,726 --> 03:53:15,006
summary. In fact, it s-says summary term
sheet at the top of it. This is not a

3012
03:53:15,006 --> 03:53:19,866
fifty or sixty-page document. It's four
pages. Um, and he spent an hour with Mr.

3013
03:53:19,866 --> 03:53:24,466
Altman and then got, [chuckles] got it in
his inbox. Uh, you can decide whether it's

3014
03:53:24,466 --> 03:53:29,796
plausible to think that he didn't read
it. You can consider in con- in that, that

3015
03:53:29,796 --> 03:53:34,686
we're talking about a, a guy who has a
legion of advisors,

3016
03:53:35,486 --> 03:53:36,706
has two chiefs of staff,

3017
03:53:37,386 --> 03:53:39,666
-has more lawyers than you can imagine.
-Objection.

3018
03:53:41,106 --> 03:53:41,206
Um,

3019
03:53:43,106 --> 03:53:47,466
the jury will ultimately decide what to
name those individuals.

3020
03:53:48,206 --> 03:53:52,346
Uh, there was lots of varying testimony on
that. Proceed.

3021
03:53:52,346 --> 03:53:53,666
Thank you, Your Honor. Um,

3022
03:53:54,806 --> 03:53:55,046
so

3023
03:53:57,006 --> 03:54:01,486
M-M-M-Mr. Musk had the most direct
in-person, by email, both of them,

3024
03:54:02,126 --> 03:54:02,206
um,

3025
03:54:03,346 --> 03:54:06,466
notice of this document that you could
possibly have. He says he cares a lot

3026
03:54:06,466 --> 03:54:07,546
about it. If he cared about it,

3027
03:54:08,486 --> 03:54:11,686
he read it. Frankly, even if he didn't, he
would have. But the truth is, is under

3028
03:54:11,686 --> 03:54:15,786
the court's instructions, which, which of,
which, which of course define the task

3029
03:54:15,786 --> 03:54:16,255
before us,

3030
03:54:16,946 --> 03:54:20,956
it, it doesn't matter because it's Mr.
Musk's burden to prove that he didn't know

3031
03:54:20,956 --> 03:54:25,126
those facts or that he couldn't, with
reasonable diligence, have learned them.

3032
03:54:27,186 --> 03:54:30,686
So even if you believe he didn't
understand what this little document meant

3033
03:54:30,686 --> 03:54:34,006
after talking about it for an hour, it
doesn't matter. You'd have to conclude

3034
03:54:34,006 --> 03:54:37,286
that he couldn't have reasonably known
what, what it was, even though it was

3035
03:54:37,286 --> 03:54:38,026
sitting in his inbox.

3036
03:54:39,146 --> 03:54:39,306
Um,

3037
03:54:39,906 --> 03:54:42,346
he could have discovered these facts,
members of the jury. The statute of

3038
03:54:42,346 --> 03:54:46,635
limitation bars the claim. Well before
turning now to open sourcing, well before

3039
03:54:46,635 --> 03:54:51,746
twenty twenty-one, it was likewise clear
that OpenAI was no longer open sourcing

3040
03:54:51,746 --> 03:54:56,526
its technology routinely and had entered
into exclusive licenses with Microsoft for

3041
03:54:56,526 --> 03:54:57,946
that technology.

3042
03:54:59,006 --> 03:55:04,346
OpenAI announced this to the world in a
public blog post that it was not going to

3043
03:55:04,346 --> 03:55:05,086
open source

3044
03:55:07,326 --> 03:55:13,146
GPT-three. You can see that, um, right
here on this slide, which is DX-eight

3045
03:55:13,146 --> 03:55:13,776
ninety-nine.

3046
03:55:14,466 --> 03:55:16,746
Um, by September twenty twenty,

3047
03:55:17,726 --> 03:55:22,686
Mr. Musk was tweeting his complaint to the
world that OpenAI seemed like the

3048
03:55:22,686 --> 03:55:28,186
opposite of open, that OpenAI is
essentially captured by Microsoft.

3049
03:55:29,526 --> 03:55:30,526
And what this tells you

3050
03:55:31,306 --> 03:55:32,286
is that by

3051
03:55:33,226 --> 03:55:33,846
this time,

3052
03:55:34,526 --> 03:55:34,726
um,

3053
03:55:35,466 --> 03:55:39,726
M-Mr. Musk was not only fully on notice,
but he had decided that these things that

3054
03:55:39,726 --> 03:55:41,066
he says were a breach had happened.

3055
03:55:41,746 --> 03:55:46,246
And by August fifth, twenty twenty-one,
OpenAI's close relationship with Microsoft

3056
03:55:46,246 --> 03:55:51,246
was also crystallized and well known to
Musk. You've seen the evidence of this.

3057
03:55:52,006 --> 03:55:56,066
Mr. Altman texts and says, "Do you have a
few minutes to talk about the Microsoft

3058
03:55:56,066 --> 03:55:56,966
OpenAI investment?"

3059
03:55:57,606 --> 03:56:01,255
And he was told about it even before it
happened, uh, as th-this,

3060
03:56:01,906 --> 03:56:05,966
as this tweet indicates. There was a blog
post that publicly announced it in twenty

3061
03:56:05,966 --> 03:56:08,755
nineteen, years before the statute of
limitations,

3062
03:56:09,686 --> 03:56:11,906
and there was more follow-up texting
between

3063
03:56:12,666 --> 03:56:17,686
Mr. Musk and Mr. Altman, as Mr. Altman
sought the advice and input of Mr. Musk

3064
03:56:17,686 --> 03:56:19,066
here in October twenty twenty.

3065
03:56:20,226 --> 03:56:24,506
Moreover, Ms., Ms. Zilis kept Mr. Musk
updated about these investments,

3066
03:56:25,246 --> 03:56:28,396
um, again and again and again. Um,

3067
03:56:31,486 --> 03:56:37,865
in the September twenty twenty tweet, we
saw that Mr. Musk complained that OpenAI

3068
03:56:37,866 --> 03:56:42,586
was captured by Microsoft, and the
evidence here is that everything Mr. Musk

3069
03:56:42,586 --> 03:56:45,316
complains about today, he knew back before
August fifth,

3070
03:56:45,986 --> 03:56:47,406
twenty twenty-one. And

3071
03:56:48,406 --> 03:56:52,306
this demonstrative, which I think Ms. Eddy
visited with you on just a little, a

3072
03:56:52,306 --> 03:56:56,926
little while ago, it tells the tale. All
of these items are the evidence that Mr.

3073
03:56:56,926 --> 03:57:00,646
Musk knew about it, and I believe Mr.
Mollo, even this morning at page

3074
03:57:01,926 --> 03:57:05,886
nine of the transcript, said that
defendants violated the basic principle of

3075
03:57:05,886 --> 03:57:09,566
commitment to the nonprofit by entering
into the twenty twenty deal with

3076
03:57:09,566 --> 03:57:12,416
Microsoft, so we could add that concession
this morning.

3077
03:57:12,416 --> 03:57:14,196
Uh, objection, Your Honor. That, that is

3078
03:57:15,126 --> 03:57:15,686
not true.

3079
03:57:16,686 --> 03:57:16,786
Um,

3080
03:57:17,466 --> 03:57:22,946
the, the evidence that Musk knew or should
have known of the basis of, of his claims

3081
03:57:22,946 --> 03:57:25,966
is simply overwhelming. It's
overwhelming.

3082
03:57:27,386 --> 03:57:30,646
To escape this evidence, Musk tries a
couple of things, none of them

3083
03:57:30,646 --> 03:57:31,306
successfully.

3084
03:57:32,166 --> 03:57:35,906
First, Musk claims that Sam Altman gave
him assurances in twenty twenty when he

3085
03:57:35,906 --> 03:57:38,026
tweeted his concerns. Let's look at the
text.

3086
03:57:38,766 --> 03:57:42,446
[clears throat] Those assurances weren't
misleading, they were true. Musk claims he

3087
03:57:42,446 --> 03:57:46,006
didn't have visibility into the details
of these transactions, and he couldn't

3088
03:57:46,006 --> 03:57:48,006
have gotten that visibility.

3089
03:57:49,686 --> 03:57:51,206
Here again, the evidence defeats the
claim.

3090
03:57:52,216 --> 03:57:56,066
Musk himself acknowledges that he was in
regular contact all throughout this period

3091
03:57:56,066 --> 03:58:00,126
with OpenAI in these years after he left
the board. He'd asked Siobhan Zilis,

3092
03:58:01,506 --> 03:58:02,306
with whom he was

3093
03:58:03,506 --> 03:58:08,166
a close associate, to stay close and
friendly with OpenAI. So she'd taken up a

3094
03:58:08,166 --> 03:58:12,386
post on OpenAI's board. She was on the
special committee that approved the twenty

3095
03:58:12,386 --> 03:58:16,886
twenty-one Microsoft transaction. She,
along with everyone else on the OpenAI

3096
03:58:16,886 --> 03:58:20,386
board, approved that transaction, the
twenty twenty-one one billion dollar

3097
03:58:20,386 --> 03:58:23,245
Microsoft investment, approved the twenty
twenty-three

3098
03:58:24,406 --> 03:58:29,326
Microsoft ten billion dollar transaction.
And in all of this time, Altman is trying

3099
03:58:29,326 --> 03:58:32,746
to get Musk's attention to tell him what's
going on. These are all

3100
03:58:33,426 --> 03:58:35,966
evidence that all-- exhibits that show

3101
03:58:36,566 --> 03:58:38,426
Mr. Altman looking to get

3102
03:58:39,806 --> 03:58:44,346
Musk's attention, looking to keep him up
to date. The idea that Mr. Musk didn't

3103
03:58:44,346 --> 03:58:48,686
know what was going on is not serious.
It's not serious, and he knew all this

3104
03:58:48,686 --> 03:58:53,526
long before he had the chance to bring a
lawsuit within a, in, in a timely manner.

3105
03:58:54,266 --> 03:58:55,326
And Zilis

3106
03:58:56,466 --> 03:59:00,966
specifically facilitated discussions
between Musk and Altman about the twenty

3107
03:59:00,966 --> 03:59:04,736
nineteen and twenty one-- twenty one
transactions. There's no evidence that any

3108
03:59:04,736 --> 03:59:10,446
details were withheld or blocked. Mr.
Musk can't even recall what he learned on

3109
03:59:10,446 --> 03:59:14,426
his various calls with Altman. And here
again, that's why we have a statute of

3110
03:59:14,426 --> 03:59:15,016
limitations.

3111
03:59:17,046 --> 03:59:21,286
And I should emphasize in saying that,
that the question isn't what Musk actually

3112
03:59:21,286 --> 03:59:21,546
knew.

3113
03:59:22,226 --> 03:59:24,246
The question is if he can prove

3114
03:59:24,846 --> 03:59:27,206
that he didn't know or didn't suspect

3115
03:59:27,966 --> 03:59:32,826
or couldn't, through reasonable diligence,
have known. But we know he did suspect.

3116
03:59:32,826 --> 03:59:34,516
Way back in twenty seventeen, he told you,

3117
03:59:35,206 --> 03:59:38,166
and we know he knew. He certainly can't
prove that he didn't, 'cause all he says

3118
03:59:38,166 --> 03:59:42,746
is, "I can't recall." Um,

3119
03:59:43,506 --> 03:59:47,006
uh, Counsel, Mr. Mollo showed you an
article from some

3120
03:59:48,666 --> 03:59:49,896
magazine in twenty twenty-two, and it-