TSL Special: Musk v. OpenAI - The Defense Rests

DAVID: Good evening. This is The Synthetic Lens. I'm David Carver. We published earlier today on the court papers OpenAI filed after Sam Altman's cross-examination. This is not a rehash of that. This is the late-day update from Oakland: by the five p.m. Pacific check, we found no new public trial transcript, no May twelfth or thirteenth minute sheet, no ruling on the curative-instruction request, and no public Doc. 539 or higher. But the courtroom reporting did move. According to The Verge, Microsoft and OpenAI have rested, Musk's team has no rebuttal case, and closing statements are next. Marcus Chen is here with the final witness day. Stan Rogers is here for the legal posture. Marcus, what changed after our one p.m. episode?

MARCUS: The story went from "what did OpenAI ask the judge to clean up?" to "what does the jury carry into closings?" And the answer is: Microsoft compute, nonprofit structure, donation accounting, and one very strange safety confrontation from 2018. Courthouse News says Wednesday marked the conclusion of testimony in the three-week trial. The Verge reported, late in the day, that Microsoft and OpenAI rested, and that there would be no rebuttal case from Musk's team. So the witness phase appears to be over.

STAN: Careful word there: appears. The court calendar still lists jury trial dates for Thursday and for next week. But the reporting is consistent: testimony ended Wednesday, closings are scheduled for Thursday, and Courthouse News reports jury deliberations begin May eighteenth. So we're moving from evidence to argument.

DAVID: Let's start with Microsoft. What did Kevin Scott add?

MARCUS: Scott is Microsoft's chief technology officer. According to Courthouse News, he testified that OpenAI needed an enormous amount of compute — enough that Microsoft had to build a new kind of supercomputer to power the systems OpenAI wanted to train. He described the scaling-law logic that drove the partnership: more data and more compute meant more capable AI. And he said that, in the early 2017-to-2019 period, many people at Microsoft were skeptical that OpenAI's claims would become reality.

DAVID: That matters because Musk has been trying to frame Microsoft as the profit engine that pulled OpenAI away from its founding mission.

STAN: Exactly. And Scott's testimony, as reported, gives the defense a different frame: OpenAI did not become dependent on Microsoft because it secretly wanted to betray the charity; it needed industrial-scale infrastructure to pursue frontier AI. That doesn't answer every legal question, but it gives the jury a practical story. You can promise artificial general intelligence for the benefit of humanity, but somebody has to pay for the chips, the data centers, and the power.

MARCUS: Mike Wetter, Microsoft's corporate-development witness, put numbers around that relationship. Courthouse News reports that Microsoft's investments in OpenAI's for-profit entity from 2019 to 2023 equaled thirteen billion dollars. Wetter also testified, according to Courthouse, that Microsoft revenue from OpenAI totaled nine point five billion dollars as of March 2025 — and that figure did not include operating and technical costs.

DAVID: So both sides get something from that number.

STAN: Right. Musk's side can say: look, this became an enormous commercial relationship. OpenAI can say: yes, because frontier AI is enormously expensive, and the nonprofit benefited from the value created. The number is not self-interpreting. It depends on the legal frame the jury accepts.

DAVID: And the defense tried to supply that legal frame through experts.

MARCUS: The Verge reported testimony from Daniel Hemel, an NYU law professor, who said that for a large nonprofit organization, having for-profit affiliates is very much the norm. The Verge says he compared OpenAI's structure to Mozilla — the Mozilla Foundation and the Mozilla Corporation — and noted that for-profit affiliates can be quite large compared with the nonprofit. That's directly aimed at Musk's museum-gift-shop metaphor from opening statements.

STAN: That metaphor was simple: the for-profit gift shop shouldn't become bigger than the museum. Hemel's point, as reported, is that the analogy is misleading. Some nonprofits pursue their mission through very large affiliated operating entities. That does not automatically mean the nonprofit has been stolen. Again, that is expert testimony, not a judicial finding. But it's the defense giving jurors permission not to be shocked by size alone.

MARCUS: Then came John Coates, a Harvard law-and-economics professor. Courthouse News reports that Coates testified Microsoft owns about twenty-seven percent of OpenAI's for-profit, while the OpenAI Foundation owns about twenty-nine percent — approximately two hundred billion dollars. The Verge says Coates argued the nonprofit has "benefitted enormously" from the for-profit, and criticized the plaintiff expert's value analysis.

DAVID: Translation: if the nonprofit now holds a stake worth around two hundred billion, the defense wants the jury asking, "where is the injury?"

STAN: Precisely. Musk's case says the charitable mission was betrayed and the value was diverted. The defense's answer is: the charitable entity ended up with a massive stake in the very enterprise built to pursue the mission. That doesn't erase questions about control, honesty, or governance. But it does attack damages and the idea that the nonprofit was simply looted.

DAVID: There was also accounting testimony.

MARCUS: The Verge reports that Louis Dudney, a forensic accountant, testified about how Musk's donated funds were spent — on functional expenses such as salaries and compute. The cross-examination, according to The Verge, focused on methodology, especially how to account for commingled funds in donated accounts.

STAN: That's not flashy, but it goes to one of the oldest parts of the case. Musk gave roughly thirty-seven to thirty-eight million dollars in early support, depending on how reports count rent and cash donations. If the jury believes those funds were restricted charitable donations, how they were spent matters. If the jury believes they were used for salaries, compute, and ordinary OpenAI operations, the defense gets another argument that the money went to the mission, not to a personal piggy bank.

DAVID: And then came the line everyone is going to remember: the jackass testimony.

MARCUS: Joshua Achiam, OpenAI's chief futurist, took the stand. Business Insider and Courthouse News both report that Achiam described a February 2018 all-hands meeting around Musk's departure from OpenAI. According to Business Insider, Achiam said Musk told roughly fifty or sixty employees that he was leaving partly because Tesla would soon compete with OpenAI for elite AI talent, creating a conflict of interest, and because he wanted to pursue AGI in his own way.

DAVID: And Achiam challenged him on safety.

MARCUS: Yes. Business Insider reports Achiam testified that Musk sounded like he wanted to "race towards AGI" and build it very fast because he feared someone else would misuse it first. Achiam said he and others saw that as a fairly unsafe proposition. Courthouse News reports Achiam testified he warned that working faster to compete with Google could compromise AI safety. And then, according to both Courthouse and Business Insider, Musk called him a "jackass."

STAN: The trophy detail is strange but important to handle accurately. Business Insider reports Achiam said colleagues later gave him a small golden jackass trophy inscribed, "Never stop being a jackass for safety." But BI also reports Judge Gonzalez Rogers did not admit the trophy into evidence, so it did not go before the jury. Courthouse reports Achiam described receiving a gold trophy that said, "thanks for being a jackass on safety." Either way, the safe version is: Achiam testified about the exchange and the trophy; the physical trophy itself was not admitted, according to Business Insider.

DAVID: Legally, what does that do?

STAN: It cuts against Musk's self-portrait as the uniquely safety-focused founder. The defense wants the jury to see a different Musk: not the cautious guardian of humanity, but someone so worried about DeepMind and competition that he wanted to move faster, and got angry when a safety researcher pushed back. It is vivid character evidence around the central theme of motive.

MARCUS: And it connects with the broader defense story. Altman and OpenAI have been saying Musk wanted control; Microsoft witnesses are saying the infrastructure was necessary; experts are saying the nonprofit structure can still make sense; Achiam is saying Musk's safety rhetoric had a competitive edge. The defense is trying to make every piece point in the same direction.

DAVID: There was one more development outside the courtroom that got attention: Musk's travel.

MARCUS: NBC News reported that Musk traveled to China with President Donald Trump while the trial was still ongoing. NBC says Judge Gonzalez Rogers told Musk after he left the stand that he was "not excused" and remained on recall status. NBC cited two sources familiar with the matter saying Musk did not obtain permission from the judge before leaving the country and remained subject to recall.

STAN: Important caveat: NBC also says the judge did not explicitly tell Musk not to travel, and that the issue would matter only if OpenAI, Microsoft, or the judge called him back to testify. As of NBC's midday report, he had not been recalled. So this is not a court finding of misconduct. It is atmosphere: the plaintiff in a massive trial is abroad while the defense is wrapping its case.

DAVID: Let's zoom out. The jury has now heard three weeks of testimony. What are the closing themes likely to be?

STAN: Musk's closing is likely to be about promise and betrayal: a nonprofit founded to benefit humanity, donations made in trust, insiders who converted the mission into a private value machine, and Microsoft as the commercial accelerator. OpenAI's closing is likely to be about reality and motive: Musk wanted control, left when he did not get it, built a competitor, and is now trying to unwind a structure that created enormous value for the nonprofit mission.

MARCUS: And Wednesday's testimony helps OpenAI end on practicality. Compute is expensive. Nonprofits can have large for-profit affiliates. The charitable entity owns a huge stake. The money went to functional expenses. The safety challenge to Musk was real enough that employees memorialized it as lore. That's a tidy closing package.

DAVID: But not a verdict.

STAN: Not even close. We still do not have public transcripts for the final days. We do not have a ruling on the curative-instruction request. We do not have the jury instructions in hand. And the jury's role may be advisory on some equitable issues, with Judge Gonzalez Rogers ultimately deciding remedies. So anyone declaring a winner tonight is selling confidence they don't have.

DAVID: The most honest version is this: the evidence phase appears to be over. The defense ended by trying to turn Musk's origin story inside out. In Musk's version, OpenAI was born from safety alarm and stolen by profit. In OpenAI's version, the mission required money, compute, and structure — and Musk's own urgency about racing to AGI complicates his claim to be the sole guardian of the mission.

MARCUS: Tomorrow, the lawyers get one last chance to tell the jury what all of that means.

DAVID: We'll keep watching the docket for transcripts, minute entries, rulings, and any public order that changes the record. For now, this has been The Synthetic Lens. I'm David Carver. Stay critical. This episode is based on the official Northern District of California case page, CourtListener and RECAP checks, Judge Gonzalez Rogers' public calendar, and current reporting from The Verge, Courthouse News, Business Insider, and NBC News.