For OpenAI, I really wouldn’t be surprised if that happened to be the case, considering they still call themselves “OpenAI” despite being the most censored and closed source AI models on the market.

But my comment was more aimed at AI models in general. If you are assuming they indeed used non-publicly posted or gathered material, and did so directly themselves, they would indeed not have a defense to that. Unfortunately, if a second hand provided them the data, and did so under false pretenses, it would likely let them legally off the hook even if they had every ethical obligation to make sure it was publicly available. The second hand that provided it to them would be the one infringing.

If that assumption turns out to be a truth (Maybe through some kind of discovery in the trial), they should burn for that. Until then, even if it’s a justified assumption, it’s still an assumption, and most likely not true for most models, certainly not those trained recently.