It’s too early to tell how fair use will play out.

Jay Eischen, “(Un)fair Use?: Understanding the New York Times’s Lawsuit Against Microsoft and OpenAI,” JetLaw, 01-08-2024, https://www.vanderbilt.edu/jetlaw/2024/01/08/unfair-use-understanding-the-new-york-timess-lawsuit-against-microsoft-and-openai/

It is too early, however, to determine whether the third and fourth factors are likely to favor the Times or OpenAI. The complaint provides examples of ChatGPT regurgitating significant portions or entire Times articles. The third factor may still favor OpenAI, however, as the Times may have engaged in abnormal, targeted prompting violative of ChatGPT’s terms of use, and OpenAI could potentially tweak the model to reduce or eliminate instances of outright copying, while still using copyrighted materials for training its models.[11] With respect to the fourth factor, it is also unclear to what extent ChatGPT may reduce the marketability of the Times reporting. OpenAI has only recently integrated real-time information access into its services through its partnership with Microsoft, and evidence has yet to be adduced showing any meaningful relationship between ChatGPT and the profitability of the Times’s reporting.