Rather, verbatim reproduction is the proof that copyrighted materials was used. Then the court has to evaluate whether it was fair use. Without verbatim reproduction, the court might just say that there is not enough proof that the Times's work was important for the training, and dismiss the lawsuit right away.

Instead, the jury or court now will almost certainly have to evaluate OpenAI's operation against the four factors.

In fact, I agree with the parent that ingesting text and creating a representation that can critique historical facts using material that came from the Times is transformative. An LLM is not just a set of compressed texts, people have shown for example that some neurons fire when you are talking of specific historical periods or locations on Earth.

However, I don't think that the trasformative character is enough to override the other factors, and therefore in the end it won't/shouldn't be considered fair use IMHO.