No, it's not, the analogy explicitly acknowledge that theft is still happening despite laws.
The point is that simply because it still occurs, doesn't justify to call the distinction arbitrary.
What the ToS says, counts, because it's written by the devs, they state their intent for the game, if the players then can circumvent that without breaking the ToS, it's up to them to fix that loophole, if they don't, they allow pay to win to happen.
However, i don't expect the devs to keep ToS breaking activities down to 0, because that's not a reasonable thing to expect.
I'm not going to further entertain this notion, because arguing over what is forbidden by the ToS should be self evident.