I would assume that clause would be unenforceable. They may be able to try to sue for violating the terms of the license, but I'm fairly confident they're not going to get a judge to order them to give their model away for free even if they won. And they would likely still need to show damages in order to win a contract case.
The hope is to flip the script. Sure, the company might not fulfill their full obligation under the terms and conditions they agreed to (in the same way that we all agree to these “continuing to use this site means you agree to our terms and conditions,” they are agreeing to the terms and conditions by continuing to scrape the site). But, at least if a model leaks or some pirates software that was generated by one of their LLMs, they can say, well it was open source.
I disagree... if those terms are unenforceable, then 1. someone else's model does not become free just because they say it does, and 2. I'm not convinced that is even legal to begin with.
Typically contracts (a license is a contract) have to be fair and mutually beneficial... I don't think a judge would agree that giving a whole model away for free just because you trained on some of their data, is fair, if there's anything even legally wrong with using said data for training in the first place.
You would also need to show a "reasonable purpose" for such a stipulation in the contract. Giving their product away for free as a punishment doesn't sound very reasonable to me, and I don't think a judge would say so either.
If they don’t like the contract, they can try and get it invalidated, but at least it will be a distributed problem for them.
> If they don’t think it is mutually beneficial, they don’t have to use the site.
That's not how contracts work insofar as legal enforcement though. If a judge finds that clause to be unenforceable, then they wouldn't be giving anything up.