For example, if you take out a loan and you sign terms and conditions which say you agree to pay it back and then later your circumstances change and you can't pay, that's probably just a civil matter. But if, at the time you signed the agreement, you had planned to deliberately not pay it back, that's fraud and therefore criminal. The fraud is in the fact that you are making a false representation: you are saying you will pay it back, but you know that to be false. It's a very different thing from believing it to be true, but it then later turns out not to be true.
The same principle applies to LLM subscriptions (or any other contract).
I assume most of it is just people who want cheaper access to these models and don't mind subsidizing access via somebody who is simultaneously distilling the model.
This is about controlling who gets to use the tokens for what, not about payment fraud.
This is about people circumventing the model company's attempts to protect their intellectual "property" (which, if you insist on that incoherent usage of the word "property", they themselves stole from the rest of us).
It's equivalent to buying a DVD in the US which is region-locked to Asia. Grey market, not black market. If you use a stolen credit card to buy that DVD, well tat's a totally separate matter.