Isn't this the same thing Google has been doing for years with their search engine? Only difference is Google keeps the data internal, whereas openai spits it out to you. But it's still scraped and stored in both cases.

A component of fair use is to what degree the derivative work displaces the original. Google's argument has always been that they direct traffic to the original, whereas AI summaries (which Google of course is just as guilty of as openai) completely obsoletes the original publication. The argument now is that the derivative work (LLM model) is transformative, ie, different enough that it doesn't economically compete with the original. I think it's a losing argument but we'll see what the courts arrive at.

In my opinion not a lawyer, Google at least references where they obtained the data and did not regurgitate it as if they were the creators that created something new. obfuscated plagiarism via LLM. Some claim derivative works but I have always seen that as quite a stretch. People here expect me to cite references yet LLM's somehow escape this level of scrutiny.