I agree, (2) seems much less problematic since the AI outputs are not copyrightable and since OpenAI gives up ownership of the outputs. [1]
So, if you really really care about ToS, then just never enter into a contract with OpenAI. Company A uses OpenAI to generate data and posts it on the open Internet. Company B scrapes open Internet, including the data from Company A [2].
[1]: Ownership of content. As between you and OpenAI, and to the extent permitted by applicable law, you (a) retain your ownership rights in Input and (b) own the Output. We hereby assign to you all our right, title, and interest, if any, in and to Output.
[2]: This is not hypothetical. When ChatGPT got first released, several big AI labs accidentally and not so accidentally trained on the contents of the ShareGPT website (site that was made for sharing ChatGPT outputs). ;)
So, if you really really care about ToS, then just never enter into a contract with OpenAI. Company A uses OpenAI to generate data and posts it on the open Internet. Company B scrapes open Internet, including the data from Company A [2].
[1]: Ownership of content. As between you and OpenAI, and to the extent permitted by applicable law, you (a) retain your ownership rights in Input and (b) own the Output. We hereby assign to you all our right, title, and interest, if any, in and to Output.
[2]: This is not hypothetical. When ChatGPT got first released, several big AI labs accidentally and not so accidentally trained on the contents of the ShareGPT website (site that was made for sharing ChatGPT outputs). ;)