Correct, but what isn't clear here is their rationale for why they think they're covered by fair use. Does anybody have that information?
I'm not saying their interpretation is correct, but seems to be germane to this discussion. The parent comment seems to assume none of this has been litigated yet, which might also be true. Or not.
By no means am I an expert in copyright law, but factor 3 seems like very bad news if you're OpenAI.
No, they are different. "fair use" is a legal term. It is not like saying "I use it like this, I think it is fair!", the term "fair use" literally is a legal term that means a particular thing in the court of law.
When a court determines that it isn't, you can continue to argue it as much as you like (to deaf ears), and yet you're still liable to the copyright holder. Whether it's "incorrect" or not is then irrelevant. Let's not argue semantics here.
This cannot be known until it is litigated. Fair Use is not something you can unilaterally declare and have it be so, just like you can't be like Michael Scott in the Office shouting "I declare bankruptcy!" OpenAI is currently defending itself against the New York Times for this very reason.
There's a multi-factor test that courts weigh the facts against in making a determination as to whether a prima facie copyright violation would be protected under a Fair Use defense:
Factor 1: The Purpose and Character of the Use
Factor 2: The Nature of the Copyrighted Work
Factor 3: The Amount or Substantiality of the Portion Used
Factor 4: The Effect of the Use on the Potential Market for or Value of the Work
See https://copyright.columbia.edu/basics/fair-use.html for a pretty good overview of what the analysis entails.