EleutherAI won this fight already. The technology is freely available for anyone to use however they like, and they're responsible for whatever it is they do with it.
The 6 billion parameter model was released just last week with the huggingface api hooks. It's just a few percentage points less performant than Gpt-3 DaVinci in most metrics. You can run it on a laptop with 40gb ram, albeit slowly.
All that to say, the horse has left the barn. What openai is doing is just marketing and protecting an investment. They don't have an ethical or moral high ground.