Well, if the Judge agrees with this there goes the rule of law in the USA. Their thesis is that it's illegal to investigate criminal behaviour. That seems like a very bad sort of thing to accept to me.
Getting OpenAI to spit out part of the prompt you provided in its output, and then claiming that it had been trained on that, seems dishonest. It shouldn't be illegal, but it also shouldn't be the basis of a successful lawsuit unless there's other context missing here.
https://arstechnica.com/tech-policy/2023/12/ny-times-sues-op...
And this is a screenshot of their session with copilot
https://cdn.arstechnica.net/wp-content/uploads/2023/12/Scree...