The authors note that OpenAI’s detailed interpretation of fair use in an AI context is irrelevant, at least at this stage. Fair use is a defense that is typically not used to dismiss copyright infringement claims before they’re properly argued. “Fair use is an affirmative defense, and is inappropriate to resolve on a motion to dismiss,” the author’s said in their reply brief. Given that, OpenAI’s arguments regarding fair use are “wholly misplaced.”
Source: Authors: OpenAI’s Fair Use Argument in Copyright Dispute is Misplaced * TorrentFreak