Analyzing the factors involved for a "fair use" consideration:

Purpose and Character of the Use: While the argument for transformation might hold in the future as you point out, the current dispute revolves around verbatim use. So clearly not transformative. Also commercial use is more difficult to be ruled fair use.

Nature of the Copyrighted Work: Using works that are more factual may be more likely to be considered fair use, but I would argue that NYT articles are as creative as factual.

Amount and Substantiality of the Portion Used: In this case, the entirety of the articles was used, leaving no room for a claim of using an insignificant portion.

Effect on the Market Value: NYT isn't getting any money from this, and it's clearly not helping their market value if people are checking on ChatGPT instead of reading a NYT article.

IANAL, but in my opinion NYT is well within its rights to pursue legal action. Progress is inevitable, but as humans, we must actively shape and guide it. Otherwise it cannot be called progress. In this context, legal action serves as a necessary means for individuals and organizations to assert their rights and influence its course.