That's not what's being decided, it's the input of copyright content and so far it is leaning strongly towards the AI companies being able to do that and only getting in trouble for pirating the material first.
If the Ai can output enough to violate copyright, that's when an author can make claims. Until it does, it's just speculation that it might one day do that
the NYT case is another, but that was an older model more prone to that, and text is easier to (eg.) hash and prevent with a post-gen guardrail