The same principle can be applied to distillation - it is a fair use. You just shouldn't use illegal ways to access the models being distilled.
To the commenter below: if it is illegal - has the police/FBI report been made? Otherwise it is just a civil court matter.
It does seem to be becoming the norm for AI companies to licence premium content in America, judging by the deals they're making. It doesn't seem to be done by the international distillers. It's a cost that American open models will seem to have to pay but not international.
It goes both ways - American companies and their business are protected by American laws and have access to the market protected by those laws, etc.
This is a very surprising claim to me (and I imagine many small website owners who keep getting scraped by Anthropic and OpenAI).
Do you have a source?