extensive uses of expressive material. This overall increase in creative
production is accomplished by providing comfort and protection for
some of the appropriate borrowing and cross-fertilization that is
necessary for a new work.
While a clear connection to internal copyright policy exists, there
is no operative connection between the third factor and free speech.
Within First Amendment jurisprudence, the amount of expression a
speaker projects is irrelevant. Movies and novels have been protected
just as much as Cohen's brief statement, "Fuck the Draft., 225 I do not
argue that the third fair use factor rises to the level of violating a First
Amendment principle, as I do with the first factor. Nonetheless, the
analysis of quantity and quality does not possess any First
Amendment benefits that ameliorate the damage done under the first
factor.
The final fair use factor, the effect of the use on the value of or
the market for the copyrighted work,226 clearly attempts to vindicate
copyright's internal purpose of motivating production by providing
for authorial reward. The factor tries to avoid significant interference
with the reward that is "due" the author under our system, even while
tolerating insignificant interferences. In contrast, when the First
Amendment is at stake, we never ask what the financial effect was
upon the target of speech or on competing speech being disseminated
by others. Money is not the issue. The only time that the commercial
purpose of particular speech matters in today's First Amendment