you don't have to make money off it, you just can't publish it, except as a parody or commentary or possibly a tutorial on how to draw mario if the judge is having a good day
but "making money = infringement" is folk wisdom. you could certainly say making money attracts attention and increases likelihood of legal action
Making money off it doesn't just draw more attention, it also makes a fair use defense harder. Non-commercial use isn't necessary or sufficent for fair use, but it does help.
yeah, I appreciate this clarification. "publishing" seems like a nebulous concept to me and the general act of publishing something rarely seems to be what draws the attention of the lawyers (whereas making money seems clearer-cut).
So I suppose the question will hang on whether OpenAI is "publishing" if it returns similarly infringing results for the same prompts, even though those results are individually generated for a given user query.
but "making money = infringement" is folk wisdom. you could certainly say making money attracts attention and increases likelihood of legal action