Based on these companies' arguments that copyrighted material is not actually reproduced by these models, and that any seemingly-infringing use is the responsibility of the user of the model rather than those who produced it, anyone could freely generate an infinite number of high-truthiness OpenAI anecdotes, freshly laundered by the inference engine, that couldn't be used against the original authors without OpenAI invalidating their own legal stance with respect to their own models.
The argument about LLMs not being copyright laundromats making sense hinges the scale and non-specificity of training. There's a difference between "LLM reproduced this piece of copyrighted work because it memorized it from being fed literally half the internet", vs. "LLM was intentionally trained to specifically reproduce variants of this particular work". Whatever one's stances on the former case, the latter case would be plain infringing copyrights and admitting to it.
In other words: GPT-4 gets to get away with occasionally spitting out something real verbatim. Llama2-7b-finetune-NYTArticles does not.
You would think having a massive scale just means it has infringed even more copyrights, and therefore should be in even more hot water
If you're only training on a handful of works then you're taking more from them, meaning it's not de minimus.
For the record, I got this legal theory from Cory Doctorow[0], but I'm skeptical. It's very plausible, but at the same time, we also thought sampling in music was de minimus until the Second Circuit said otherwise. Copyright law is extremely malleable in the presence of moneyed interests, sometimes without Congressional intervention even!
[0] who is NOT pro-AI, he just thinks labor law is a better bulwark against it than copyright
It's up to you if that counts as "a handful" or not.