I've edited my comment with examples and a clarification.
Fair use is an exception to copyright and, by definition, copyright licenses.
Fair use is an exception to copyright and, by definition, copyright licenses.
Google didn't create new books from the contents of existing ones (whether you agree that they should have been allowed to store the books or not) but Copilot is creating new code/apps from existing ones.
Edit: I guess my understanding of fair use was wrong. I stand corrected.
Copilot producing new, novel works (which may contain short verbatim snippets of GPL works) is a strong argument for transformativeness.
I don't know how a court would decide this, but I do think the facts in future GPT-3 cases are sufficiently different from Author's Guild that I could see it going any way. Plus, I think the prevalence of GPT-3 and the ramifications of the ruling one way or another could lead some future case to be heard by the Supreme Court. A similar case could come up in California, or another state where the 2nd Circuit Artist Guild case isn't precedent.
Define short
Fair use is a defense for cases of copyright infringement, which means you're starting of from a case of copyright infringement, which sort-of muckys up the whole "innocent until proven guilty" thing. And considering it's a weighted test, it's hardly very cut-and-dry at that.