So, if the summaries are derived works and not covered by fair use, then both you and the summarizee are separately breaking the NYT's copyrights. Otherwise, if this is covered by fair use, then you are both in the clear.
Finally, GPT is not "a summarization tool" in this case. If you provide a copy of a NYT article as a prompt and then ask for summarization, then yes, it is clear that GPT is not doing anything wrong, even if it spits out the exact same text. But if you simply ask for a summary of a specific article by, say, just name and date, and you get a copy of it, it's clear that GPT is storing the original data in some way, and thus it has copied the NYT's protected works without permission.
In this particular case they were using it via Bing, which actively did a HTTP request to the particular article to extract the content. So GPT hadn't memorised it verbatim, instead it fetched it, much like a human using a search engine would.
Additionally, even the use through Copilot is very debatable. They are not returning the NYT link, which requires a subscription, they are returning the contents of it even to non-subscribers. And they are doing this in a commercial product, not a non profit like the Internet Archive, which has some arguments for fair use.
At some level it becomes a subversion of NYTs fees. First, say I subscribe and simply host the articles verbatim, for a fee. Clearly, that's not right.
Suppose I change some spelling or word order, or use a synonym or two. That's still not ok.
And if I substantially paraphrase the articles? I guess this is the relevant case. This is kind of what LLMs do. And also feels like not fair use.
That's not what OpenAI is doing; it's not selling summarised articles as a service. Your example is a false equivalence.
>This is kind of what LLMs do. And also feels like not fair use
An LLM doesn't do this unless you ask it to. And if you then take that output and publish it as your own, you're breaching the copyright, not OpenAI.
In this case, OpenAI is violating copyright by modifying, reproducing and distributing copyrighted content to its customer.
>Is that fair use? IANAL, but doesn't sound like it.
If you pay someone to do the summarisation for you, then you publish the content and charge a fee for it, you're the one liable, not the person you paid to summarise it for you. Similarly if you ask GPT to do it for you, then publish it, you're liable for what you publish; GPT is just a summarisation tool.