On Monday Musk made the OpenAI nonprofit foundation an offer they want to refuse, but might have trouble doing so: $97.4 billion for its stake in the for-profit company, plus the freedom to stick with its current charitable mission.

For a normal company takeover bid, this would already be spicy. But OpenAI’s unique structure — a nonprofit foundation controlling a for-profit corporation — turns the gambit into an audacious attack on the plan OpenAI announced in December to free itself from nonprofit oversight.

As today’s guest Rose Chan Loui — founding executive director of UCLA Law’s Lowell Milken Center for Philanthropy and Nonprofits — explains, OpenAI’s nonprofit board now faces a challenging choice.

Links to learn more, highlights, video, and full transcript.

The nonprofit has a legal duty to pursue its charitable mission of ensuring that AI benefits all of humanity to the best of its ability. And if Musk’s bid would better accomplish that mission than the for-profit’s proposal — that the nonprofit give up control of the company and change its charitable purpose to the vague and barely related “pursue charitable initiatives in sectors such as health care, education, and science” — then it’s not clear the California or Delaware Attorneys General will, or should, approve the deal.

OpenAI CEO Sam Altman quickly tweeted “no thank you” — but that was probably a legal slipup, as he’s not meant to be involved in such a decision, which has to be made by the nonprofit board ‘at arm’s length’ from the for-profit company Sam himself runs.

The board could raise any number of objections: maybe Musk doesn’t have the money, or the purchase would be blocked on antitrust grounds, seeing as Musk owns another AI company (xAI), or Musk might insist on incompetent board appointments that would interfere with the nonprofit foundation pursuing any goal.

But as Rose and Rob lay out, it’s not clear any of those things is actually true.

In this emergency podcast recorded soon after Elon’s offer, Rose and Rob also cover:

• Why OpenAI wants to change its charitable purpose and whether that’s legally permissible
• On what basis the attorneys general will decide OpenAI’s fate
• The challenges in valuing the nonprofit’s “priceless” position of control
• Whether Musk’s offer will force OpenAI to up their own bid, and whether they could raise the money
• If other tech giants might now jump in with competing offers
• How politics could influence the attorneys general reviewing the deal
• What Rose thinks should actually happen to protect the public interest

Chapters:

• Cold open (00:00:00)
• Elon throws a $97.4b bomb (00:01:18)
• What was craziest in OpenAI’s plan to break free of the nonprofit (00:02:24)
• Can OpenAI suddenly change its charitable purpose like that? (00:05:19)
• Diving into Elon’s big announcement (00:15:16)
• Ways OpenAI could try to reject the offer (00:27:21)
• Sam Altman slips up (00:35:26)
• Will this actually stop things? (00:38:03)
• Why does OpenAI even want to change its charitable mission? (00:42:46)
• Most likely outcomes and what Rose thinks should happen (00:51:17)

Video editing: Simon Monsour
Audio engineering: Ben Cordell, Milo McGuire, Simon Monsour, and Dominic Armstrong
Transcriptions: Katy Moore