Seems only fair that if LLMs can use copyrighted data for training then they should be able to use cannot-be-copyrighted output of other LLMs.
But barring the terms of service from forbidding distillation seems like a tough sell. OpenAI shouldn't be allowed to decide what types of customers it wants and doesn't want?
> Seems only fair
"You're trying to kidnap what I've rightfully stolen!" -- Vizzini
It's pretty common to have such laws. OpenAI can put whatever they want in their ToS, but they cannot go back and sue someone for violating those terms if the government has ruled that clause to be unenforceable.
> OpenAI shouldn't be allowed to decide what types of customers it wants and doesn't want?
Correct. It shouldn't be allowed to do that.
This happens all the time. The government can decide legislatively that certain commercial terms are simply unenforceable. Making distillation clauses unenforceable in tort law would be straightforward. They can decide what customers they want to have, but they do not have unfettered rights as to the enforceability of terms governing the relationships between the parties.