OpenAI takes in code, books and articles and produces a model. This model can be used for novel tasks, like paraphrasing your own writing, translating your text to a different language, writing code according to a provided specification etc, even if there was nothing in the original corpus that exactly solved your problem.
To produce this model, you need four ingredients. The data, the compute, research effort and a lot of tedious RLHF work. While OpenAI uses the first one without providing author compensation (and it has no other option here), the latter three it provides entirely on its own.
People distilling from OpenAI do not create transformative works. They take Open AI's model and make a model of their own. Both models can do very similar things and are suitable for very similar purposes.
Distillation is just a particularly easy way of making an inexact copy of the model weights. The values of those weights will be very different, just as the values of each pixel in an illicit camera recording of a movie at a cinema are very different from those in the original version, but the net result is the same.