This then becomes about where the liability of that violation lies, and how attractive that is to companies.
A human "learning" the marvel logo and reproducing it is violation. How does OpenAPI fit into this analogy?
The whole point of these generative models is that I have less agency over exactly what gets created - it takes my prompt and does the rest.
LLMs are also not usually trained to remenber where the examples they were trained on came from, the sourcing information is often not even there (maybe they could, maybe they should, but they aren't). Given that and the way training works, one could argue that they're never copying, only re-expressing or combining (which I think of as a form of "generating something original"). Just memorizing and copying is overfitting, and strongly undesirable, as it's not usable outside of the exact source context. I agree it can happen, but it's a flaw in the training process. I'd also agree that any instance of exact reproductions (or of material with similarity to the original content over some high threshold) is indeed copyright infringement, punishable as such.
So, my point is, training a model on copyrighted material is legal, but letting that model output copies of copyrighted material beyond fair use (quotations, references, etc - that make sense in the context the model was queried on) is an infringement. And since the actual training data is not necessarily known, providers of model-as-a-service, such as OpenAI with GPT, should be responsible for that.
In cases where a model was made available to others, it falls on the user of the model. If the training data is available, they should check answers against it (there's a whole discussion on how training data should be published to support this) to avoid the risk;if the training data is unknown, they're taking the risk of being sued full-on, without any mitigation.
Not quite, it's really in the resale or redistribution that violation occurs, painting an image of the hulk to hang in your living room wouldn't really be a violation, selling that painting could be, turning it into merch and selling that would wholeheartedly be, trying to pass it off as official merch is without question a violation.