Earlier quoted context omitted.
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?
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.
The terms of service don't even necessarily matter here. OpenAI could cancel your account for almost any reason, or for no reason at all. They don't particularly need to cite a ToS violation just as a store owner doesn't need to point to a written policy to kick you out of their store.
If the underlying issue is that LLMs should be regulated as a public good, then lets have that discussion. If it's that the major AI companies are becoming too powerful and anti-competitive, let's talk serious anti-trust enforcement. Micro-managing business policies isn't going to work very well.