...I think you missed the point. OAI/MS can sue the author or at least cut off API access. If that happens, the fact that OAI is under fire from NYT doesn't somehow obviate the author's need to cover some massive legal bills for the foreseeable future.

The NYT case could take years. In the meantime OAI could choose to go after ToS violators.

The legal system can accommodate more than one unresolved court case at a time. We don't like put a semaphore on related cases or anything like that. (Or, sometimes we do, but guess who you need to hire for many many billable hours to make that happen in your case?).

So, the legal system can accommodate the NYT case against OAI and an OAI case against the author. The operative question is: can the author's pocketbook also accommodate?

(Or, more to the point, can the author accommodate losing access to gpt4? What happens when he wants to launch a new feature or pivot to a new product?)