What they have so far argued is that it isn't infringement until an operator asks for output that infringes, and then it is the operators fault. I hate that argument, but so far they sidestep the dicey issue by putting the burden on the operator.
The rogue agent thing is bullshit, but we have shitty criminal enforcement and complicit would-be plaintiffs rather than a lack of law.
They did for example rule against that one company ripping off anothers legal material despite the "but AI" defense. The court didn't care one way or the other about the process, they just cared that the output was obviously infringement. AI or no AI.
Oh I think it is shit, especially reading that 250k and the result was still 20% off of target in a scenario that should, in theory, be right in GenAI's wheelhouse.
Btw the decomp I was referencing was of the original modern warfare 2 from 2009.