I don’t necessarily fault OpenAI’s decision to initially train their models without entering into licensing agreements - they probably wouldn’t exist and the generative AI revolution may never have happened if they put the horse before the cart. I do think they should quickly course correct at this point and accept the fact that they clearly owe something to the creators of content they are consuming. If they don’t, they are setting themselves up for a bigger loss down the road and leaving the door open for a more established competitor (Google) to do it the right way.
If your "fair use" substantially negatively affects the market for the original source material, which I think is fairly clear in this case, the courts wont look favorably on that.
Of course, I think this is a great test case precisely because the power of "Internet scale" and generative AI is fundamentally different than our previous notions about why we wanted a "fair use exception" in the first place.