Georgetown law professor Rebecca Tushnet has a post up at her blog on a recent lecture given there by Ninth Circuit Judge Alex Kozinski entitled “Fair Use Revisited.” Kozinski uses the recent Dr. Seuss Enterprises v. Penguin Books (involving an account of the O.J. Simpson trial written in the style of Dr. Seuss and called The Cat NOT in the Hat) as an example of what’s wrong with current fair use jurisprudence:
“He finds it difficult to say the opinion is clearly wrong. When you apply a multifactor test with unclear factors, it’s difficult to be clearly wrong, though you can do it if you work at it. The real issue is that fair use doctrine is a red herring that we should just dump.”
Echoing a theme presented here on several occasions (e.g., here), he says “the [fair use] balancing process could have gone either way, and the result is uncertainty for future authors.”
Tushnet has a separate post on the question and answer period following the lecture here.