Which is not to say that any of this is okay and should just be excused, but failing to recognize this fairly significant difference is probably not a great start to any discussion about the issue.
It could change the sentencing maybe, I'm not sure.
Yes, it does, because the damaged party is less likely to press charges. And when it came to sentencing, like you said, how the damaging party handled themselves would also be considered (in most western jurisdictions).
It is an American Entertainment Industry misconception that victims (or anyone else) have the ability to tell the police or the prosecutors how and when to do their jobs.
Hypothetically, a private homeowner could choose not to report a break-in as a crime, since it wasn't violent, and it wasn't commercial property, and if the crooks are not gangstas or some other group-backed actor, then they could quietly put the crime to rest. This would also be a question of the insurance company's policy.
But if there were a crime that did damage, usually there is a question that comes up in the police report like, "as a victim, are you prepared to cooperate in the investigation?" and if you do not tick "yes" then you can probably count on nothing else being done whatsoever.
https://www.maricopa.gov/911/Remain-Silent
https://www.ajblawfirm.com/articles/understanding-pressing-c...
Then we would find out if the argument doesn't hold (in which case there should be liability and dire consequences for the labs), or the argument holds (in which case YOLO, AI labs can blame the AI and we can all do it too).
At least that would make things consistent.
Have any of the private hacking victims sued? Maybe OpenAI is furiously settling in the shadows?