In its complaint, The New York Times alleges that because the AI tools have been trained on its content, they sometimes provide verbatim copies of sections of Times reports.

OpenAI said in its response Monday that so-called “regurgitation” is a “rare bug,” the occurrence of which it is working to reduce.

“We also expect our users to act responsibly; intentionally manipulating our models to regurgitate is not an appropriate use of our technology and is against our terms of use,” OpenAI said.

The tech company also accused The Times of “intentionally” manipulating ChatGPT or cherry-picking the copycat examples it detailed in its complaint.

https://www.cnn.com/2024/01/08/tech/openai-responds-new-york-times-copyright-lawsuit/index.html

The thing is, it doesn't really matter if you have to "manipulate" ChatGPT into spitting out training material word-for-word, the fact that it's possible at all is proof that, intentionally or not, that material has been encoded into the model itself. That might still be fair use, but it's a lot weaker than the original argument, which was that nothing of the original material really remains after training, it's all synthesized and blended with everything else to create something entirely new that doesn't replicate the original.