There’s also the moral question. Should creators have the right to prevent their bits from being copied at all? Fundamentally, people are upset that their work is being used. But "used" in this case means "copied, then transformed." There’s precedent for such copying and transformation. Fair use is only one example. You’re allowed to buy someone’s book and tear it up; that copy is yours. You can also download an image and turn it into a meme. That’s something that isn’t banned either. The question hinges on whether ML is quantitatively different, not qualitatively different. Scale matters, and it’s a difference of opinion whether the scale in this case is enough to justify banning people from training on art and source code. The courts’ opinion will have the final say.
The thing is, I basically agree with you in terms of what you want to happen. Unfortunately the most likely outcome is a world where no one except billion dollar corporations can afford to pay the fees to create useful ML models. Are you sure it’s a good outcome? The chance that OpenAI will die from lawsuits seems close to nil. Open source AI, on the other hand, will be the first on the chopping block.