> The best-positioned lawsuits to win, like NYTimes vs. OpenAI/MS, is actually based on violating terms of use, rather than infringing at training time.

I agree with this, but it's worth noting this does not conflict with and kind of reinforces the GP's comment about hypocrisy and "[ignoring] the law as long as you've got enough money".

The terms of use angle is better than copyright, but most likely we'll never see any precedent created that allows this argument to succeed on a large scale. If it were allowed then every ToS would simply begin to say Humans Only, Robots not Welcome or if you're a newspaper then "reading this you agree that you're a human or a search engine but will never use content for generative AI". If github could enforce site terms and conditions like that, then they could prevent everyone else from scraping regardless of individual repository software licenses, etc.

While the courts are setting up precedent for this kind of thing, they will be pressured to maintain a situation where terms and conditions are useful for corporations to punish people. Meanwhile, corporations won't be able to punish corporations for the most part, regardless of the difference in size. But larger corporations can ignore whatever rules they want, to the possible detriment of smaller ones. All of which is more or less status quo