Musk v. Altman – The Hundred-Billion-Dollar Diary

When private notes resurface as star witness

Private notes have a way of resurfacing at the worst possible moment. In the autumn of 2017, Greg Brockman—president of OpenAI and, at 32, one of the most consequential figures in artificial intelligence—sat down to record his doubts about a fraught negotiation with Elon Musk. He wrote for himself, to untangle his thinking, perhaps to quiet his conscience. Nearly a decade later, those jottings have become the central evidence in a lawsuit seeking $134 billion in damages—more than the annual gross domestic product of Morocco.

The case of Elon Musk et al. v. Samuel Altman et al., now before the Northern District of California, is scheduled for jury trial from April 27 to May 22, 2026. Musk is demanding between $79 billion and $134 billion—a return of approximately 3,500 times his original $38 million investment. If successful, it would represent one of the largest damage awards in legal history.

And it all began with a vision that was supposed to change the world—and with e-mails whose authors never imagined they would one day become weapons in court.

I. The Foundation of Trust

The story begins, as so many Silicon Valley origin stories do, with a gathering of the already powerful contemplating how to become more powerful still. In late 2015, a small group of technology luminaries—Musk, Sam Altman, Brockman, Ilya Sutskever, and several others—concluded that artificial general intelligence was coming whether anyone was ready for it or not, and that someone other than Google ought to be the one building it.

After months of discussion, the founders agreed that “the resulting technology will benefit the public,” that OpenAI would “seek to open source technology for the public benefit,” and that it would not be “organized for the private gain of any person.” They incorporated OpenAI as a nonprofit on December 8, 2015. Because the founders feared AI’s unconstrained potential, they agreed that “safety should be a first-class requirement” and the technology “would be owned by the foundation and used for the good of the world.”

In a pivotal e-mail dated June 24, 2015, Altman laid out the vision for Musk: “The mission would be to create the first general AI and use that to benefit individual empowerment—i.e., the distributed version of the future that seems safest. Safety should be a first-class requirement.”

Musk’s reply was characteristically terse: “I agree on all.”

Those four words—preserved in the aspic of e-mail servers, as so many consequential communications now are—would become foundational evidence in the lawsuit. Musk’s contributions totaled approximately $38 million—nearly 60% of the organization’s initial seed capital. But his involvement went beyond money. He leveraged his considerable network to recruit talent, most notably persuading Sutskever, then at Google Brain, to defect. He lent the project the imprimatur of his name, which in 2015 still carried an almost unblemished reputation for world-changing ambition.

These words—”not organized for the private gain of any person”—have become the axis of the dispute. How does one reconcile that declaration with a current valuation of roughly $500 billion? In legal terms, this is a question of fiduciary duty and the limits of permissible transformation for charitable organizations.

II. The Schism

By 2017, cracks had begun to appear in the founding coalition. OpenAI’s founders became increasingly concerned that building AGI would “ultimately require large amounts of capital” beyond what they could collect through charitable donations. Brockman, Altman, Sutskever, and Musk discussed several corporate restructuring options. Brockman, Altman, and Sutskever appeared to favor establishing a for-profit affiliate, while Musk proposed that OpenAI “attach to Tesla as its cash cow”—which would finance the research. The other founders rejected this proposal. Musk insisted throughout those discussions that OpenAI remain a “philanthropic endeavor.”

On September 20, 2017, amid governance discussions, Musk sent an e-mail that, like so many messages composed in frustration, would come back with force:

“Guys, I’ve had enough. This is the final straw. Either go do something on your own or continue with OpenAI as a nonprofit. I will no longer fund OpenAI until you have made a firm commitment to stay or I’m just being a fool who is essentially providing free funding for you to create a startup. Discussions are over.”

Altman responded the following day: “I remain enthusiastic about the non-profit structure!” Brockman, too, assured Musk—via e-mail to Shivon Zilis, an OpenAI board member and Musk employee—that he would “like to continue with the non-profit structure.” Altman further informed Zilis that he was “[g]reat with keeping non-profit and continuing to support it.” In November 2017, Brockman and Sutskever presented Musk with strategies to increase OpenAI’s charitable funds. Brockman reported in contemporaneous notes: “[W]e said that we wanted to get more results in the non-profit and to fundraise there.”

But in private, Brockman was considerably less sanguine.

The Diary

Discovery in this case revealed Brockman’s private thoughts about OpenAI’s structure, which he documented in personal files—Musk’s attorneys refer to these entries as a “diary.” In September 2017, Brockman wrote:

“This is the only chance we have to get out from Elon. Is he the ‘glorious leader’ that I would pick? We truly have a chance to make this happen. Financially, what will take me to $1B? . . . Accepting Elon’s terms nukes two things: our ability to choose (though maybe we could overrule him) and the economics.”

The entry is remarkable for its candor. Here was a co-founder of a nonprofit dedicated to benefiting humanity musing, in writing, about what path might lead him to a billion-dollar net worth.

After Brockman and Altman reaffirmed to Musk their commitment to OpenAI’s nonprofit structure, Brockman discussed OpenAI’s future with Sutskever on November 6, 2017. Brockman wrote after the meeting:

“The conclusion is we truly want the b-corp. Honestly we also want to get back to work, but it’s not super clear how we get there. . . . Cannot say that we are committed to the non-profit. Don’t wanna say that we’re committed. If three months later we’re doing b-corp then it was a lie.”

He conceded that he was “not feeling so great about all of this. The true answer is that we want [Musk] out.” He continued:

“Can’t see us turning this into a for-profit without a very nasty fight. I’m just thinking about the office and we’re in the office. And his story will correctly be that we weren’t honest with him in the end about still wanting to do the for profit just without him.”

Yet the same entry reveals something more complex—a man wrestling with conscience:

“Another realization from [this meeting] is that it’d be wrong to steal the non-profit from him. To convert to a b-corp without him. That’d be pretty morally bankrupt. And he’s really not an idiot.”

Days later, Brockman wrote under the heading “our plan” that “it would be nice to be making the billions” and explained that “we’ve been thinking that maybe we should flip to a for profit.”

Federal Judge Yvonne Gonzalez Rogers found these diary entries sufficiently ambiguous to permit the case to proceed to trial, noting that while they could be interpreted innocuously as normal business anxiety, they could also support Musk’s fraud claim if a jury found they reflected knowledge of deliberate deception.

OpenAI has published extensive context around these entries, arguing that Brockman’s concerns reflect normal business uncertainty rather than evidence of fraud. The company emphasizes that the diary also documents the founders’ genuine efforts to find a path forward with Musk—and that Brockman ultimately decided against deceiving him.

III. The Microsoft Era

Departure and Continued Donations

OpenAI pressed forward as a nonprofit. In January 2018, Altman worked “on a fundraising structure that does not rely on a public offering.” Brockman continued to represent to Musk through January 2018 that OpenAI would “try [its] best to remain a non-profit” because OpenAI’s “biggest tool is the moral high ground.”

On February 20, 2018, Musk resigned from the OpenAI board but agreed to “continue to donate and advise” the organization. He provided just under $10 million to OpenAI over the next three years to pay for the company’s office space. His last payment was on September 14, 2020.

That continuation of financial support after receiving assurances about the nonprofit structure forms a key element of the fraud claim—and of the argument over reasonable reliance.

Microsoft had been circling OpenAI since its founding—Satya Nadella shared the organization’s inaugural blog post with his executive team the day after it was published. In March 2018, just weeks after Musk’s departure, Altman presented Microsoft with plans for a commercial venture. Kevin Scott, Microsoft’s Chief Technology Officer, responded with an e-mail that now reads as prescient:

“I wonder if the big OpenAI donors are aware of these plans? Ideologically, I can’t imagine that they funded an open effort to concentrate [machine learning] talent so that they could then go build a closed, for profit thing on its back.”

Microsoft invested anyway.

The Cascade of Capital

On March 11, 2019, OpenAI announced that it had formed a for-profit subsidiary, OpenAI LP, which would help the organization “increase [its] ability to raise capital while still serving [OpenAI’s] mission.” OpenAI explained that under the new structure, employees and investors would receive a “capped return” and that OpenAI LP would “put [OpenAI’s] overall mission—ensuring the creation and adoption of safe and beneficial AGI—ahead of generating returns for investors.” The profit cap was set “north of $250 billion.”

After the for-profit entity was created, OpenAI transferred its assets out of the nonprofit. It moved “substantially all” of its intellectual property “that was developed at the nonprofit at that point” and all employees to the for-profit entity.

The chronology of Microsoft’s involvement tells the story of OpenAI’s metamorphosis:

• July 2019: $1 billion, with rights to profits up to $20 billion
• March 2021: An additional $2 billion, with rights to $12 billion
• January 2023: $10 billion more, with rights to $60 billion (increasing 20% annually from January 2025)
• Late 2024: Another $750 million

A year after the first investment, Musk appeared to track OpenAI’s growing relationship with Microsoft. In September 2020, he publicly responded to reporting that Microsoft had exclusively licensed OpenAI’s GPT-3 model by commenting that “[t]his does seem like the opposite of open” and that “OpenAI is essentially captured by Microsoft.”

Notes from an October 2020 meeting between Microsoft executives document a discussion of not wanting “to get caught up in something” because “we are effectively owning”—presumably—OpenAI, and Nadella’s comment that Microsoft needed to “think . . . through” Musk’s perspective on “closed OpenAI.”

In February 2022, Altman shared plans with Microsoft to restructure OpenAI “to address some of the challenges we’ve faced with our unusual structure (a nonprofit being in control of an LLC) as we become a more commercial effort.” One such objective was to “[r]emove [the] Nonprofit from formal control to mitigate private benefit risk.”

In October 2025, OpenAI completed its transformation into a public-benefit corporation. The nonprofit that Musk had helped create retained approximately 27% of the equity—a stake valued at $130 billion.

IV. Two Versions of the Truth

As the case proceeds toward trial, two irreconcilable stories have emerged.

Musk’s Version: The Betrayed Philanthropist

According to his complaint, the founders committed classic fraud—fraudulently inducing him to provide funding and credibility by promising that OpenAI would remain a nonprofit committed to open-source development, while secretly planning commercialization with Microsoft. His $38 million was given conditionally—and those conditions were violated the moment OpenAI began its transformation.

Musk contends that the organization’s current $500 billion valuation, built on the foundation he helped create, has accrued to Microsoft, Altman, and Brockman, while he received nothing in return. The legal theory includes unjust enrichment—the defendants profited at his expense.

Financial economist C. Paul Wazzan, retained by Musk’s legal team, calculated damages by applying Musk’s proportional contribution to the initial seed funding against OpenAI’s current valuation. The resulting figure—$79 billion to $134 billion—represents what Musk claims he would have received had he been given the equity stake his contributions warranted.

OpenAI’s Version: The Frustrated Would-Be Controller

OpenAI filed counterclaims in April 2025, accusing Musk of unfair competition and tortious interference—characterizing his litigation strategy as a coordinated effort to damage a competitor for the benefit of xAI, his rival A.I. venture founded in 2023.

According to the company, e-mails from 2017 show that Musk explicitly acknowledged the necessity of a for-profit structure to raise the capital required for A.G.I. research. A call transcript from 2017 shows Musk proposing to establish both a nonprofit and a for-profit entity working together—the exact structure OpenAI ultimately adopted.

The real reason negotiations collapsed, OpenAI argues, was not mission drift but Musk’s insistence on majority equity and total control. When the board refused to give him 51% or more, he demanded that OpenAI be merged into Tesla instead. When that, too, was rejected, he departed voluntarily—but explicitly encouraged the founders to pursue their own path, telling them he was confident in their ability to succeed.

The counterclaim emphasizes timing: Musk’s legal campaign began only after xAI’s founding, suggesting competitive retaliation rather than principled concern about mission betrayal.

OpenAI has told investors that it views the lawsuit’s actual merit value as limited to the $38 million Musk originally contributed—though it acknowledges litigation risk.

V. The $97.375 Billion Gambit

On February 10, 2025, Musk’s attorneys sent OpenAI’s board a letter offering to acquire the nonprofit’s assets for $97.375 billion on behalf of a consortium of investors including xAI. The figure was not arbitrary: it was an apparent reference to “974 Praf,” a character in Iain M. Banks’s science-fiction novel “Look to Windward”—the same series from which Musk has drawn names for SpaceX drone ships. Whether the jury will appreciate the literary allusion remains to be seen.

Altman rejected the offer on X with characteristic pith: “No thank you, but we will buy Twitter for $9.74 billion.”

OpenAI characterized the bid as a “sham” designed to disrupt its ongoing capital raise and destabilize relationships with investors and employees. The court found that the letter itself was protected by litigation privilege, but that its subsequent publication in the Wall Street Journal and the accompanying media campaign were not.

VI. The Questions for the Jury

Federal Judge Yvonne Gonzalez Rogers denied OpenAI and Microsoft’s motions for summary judgment in January 2026, finding that neither narrative was conclusively supported by the documentary record. The case will therefore proceed to trial, where twelve jurors will be asked to resolve questions that have no obvious answers:

Did Musk agree to a for-profit transition? E-mails suggest he acknowledged the need for one; other e-mails suggest he conditioned his ongoing support on maintaining the nonprofit structure. Which correspondence reflects his true understanding?

What do Brockman’s diary entries mean? The phrases “it was a lie” and concerns about a “very nasty fight” could indicate conscious deception. They could also reflect the ordinary anxieties of a founder navigating an uncertain situation. Brockman’s observation that it would be “morally bankrupt” to convert without Musk suggests a man with a conscience, not a fraudster. But his musings about reaching a billion dollars suggest… something else.

Why did Musk leave? Was it because he discovered a betrayal in progress, or because his demands for control were incompatible with the other founders’ vision?

What is a fair remedy? Even if Musk was wronged, does a thirty-eight-million-dollar contribution entitle someone to a hundred-billion-dollar recovery? Or is that figure, as OpenAI has suggested, “deliberately outlandish”—designed not to prevail at trial but to extract a settlement?

VII. The Lessons

Whatever the jury decides, the case has already delivered verdicts of its own—written in e-mail timestamps and diary entries and the merciless permanence of digital records. These lessons apply equally to corporate disputes anywhere in the world.

Private notes do not exist. Brockman kept his diary, presumably, to sort through his own thoughts during a difficult period. He could not have imagined that these reflections would become the centerpiece of a federal lawsuit nearly a decade later. In the era of discovery, every document is a potential exhibit. The same principle applies to legal due diligence in M&A transactions—buyers will search every corner of the documentation.

E-mails written in emotion are eternal. Musk’s frustrated “I’ve had enough” message, Altman’s breezy assurance of enthusiasm, Scott’s prescient question about whether donors knew what was coming—all of these were dashed off in moments, and all have become ammunition in a legal battle over artificial intelligence’s future. Every impulsive e-mail can become a weapon against its author—or its recipient. This is why careful review of contracts and corporate communications is not bureaucracy but insurance.

Founding promises have consequences. What seemed like visionary rhetoric in 2015—technology for humanity’s benefit, open-source development, no private gain—is now being parsed word by word by attorneys seeking tens of billions of dollars. Careful drafting of corporate documents—articles of incorporation, bylaws, shareholder agreements—is not formalism but the foundation of legal security.

The implications extend beyond the parties involved:

For nonprofit-to-for-profit transitions: The case will establish whether and to what extent donors can enforce mission commitments through litigation when organizations restructure. A Musk victory would expose future nonprofits to significant litigation risk; a loss might embolden other organizations to pursue for-profit transformations with less donor protection. The problem applies to corporate transformations generally—any change in legal form carries the risk of claims from existing stakeholders.

For the Microsoft partnership: A judgment against OpenAI could require restructuring of the Microsoft agreement or payment of damages that Microsoft indirectly funded. At stake is Microsoft’s investment valued at over $100 billion. The case also illustrates the risks inherent in mergers and acquisitions—a strategic investor can be drawn into disputes whose existence was unknown at the time of the transaction.

For AI governance: The dispute implicitly addresses whether AI development should prioritize rapid scaling and profit maximization or constrain growth to nonprofit structures that may impose mission discipline. The jury’s verdict may influence regulatory approaches to AI governance across the industry.

VIII. Conclusion

The case of Musk v. Altman is, at bottom, a collision between two narratives about the same set of facts. In one, a visionary philanthropist was deceived by founders who took his money, leveraged his credibility, and then executed a premeditated betrayal that enriched themselves and their corporate partner while leaving him with nothing. In the other, a would-be autocrat demanded control he had no right to, departed voluntarily when he didn’t get it, and is now using litigation as a competitive weapon against a company that had the temerity to succeed without him.

Judge Gonzalez Rogers has concluded that neither story is dispositive based on the documents alone. That leaves the question to 12 ordinary citizens who will be asked to assess the credibility of billionaires, parse the meaning of diary entries written in moral uncertainty, and decide whether promises made in the heady early days of a nonprofit bind that organization forever—even as the technology it created reshapes the world.

The trial begins in April. Greg Brockman’s diary awaits its final readers.

Timeline

Robert Nogacki

Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.