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view runs deep within the current debates. It is what NYU law professor Rochelle
Dreyfuss criticizes as the "if value, then right" theory of creative property
2--if there is
value, then someone must have a right to that value. It is the perspective that led a
composers' rights organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.
3 There was "value" (the songs) so there
must have been a "right"--even against the Girl Scouts.
This idea is certainly a possible understanding of how creative property should work. It
might well be a possible design for a system of law protecting creative property. But the
"if value, then right" theory of creative property has never been America's theory of
creative property. It has never taken hold within our law.
Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for
a richly creative society but remains subservient to the value of creativity. The current
debate has this turned around. We have become so concerned with protecting the
instrument that we are losing sight of the value.
The source of this confusion is a distinction that the law no longer takes care to draw--the
distinction between republishing someone's work on the one hand and building upon or
transforming that work on the other. Copyright law at its birth had only publishing as its

concern; copyright law today regulates both.
Before the technologies of the Internet, this conflation didn't matter all that much. The
technologies of publishing were expensive; that meant the vast majority of publishing
was commercial. Commercial entities could bear the burden of the law--even the burden
of the Byzantine complexity that copyright law has become. It was just one more expense
of doing business.
But with the birth of the Internet, this natural limit to the reach of the law has disappeared.
The law controls not just the creativity of commercial creators but effectively that of
anyone. Although that expansion would not matter much if copyright law regulated only
"copying," when the law regulates as broadly and obscurely as it does, the extension
matters a lot. The burden of this law now vastly outweighs any original benefit--certainly
as it affects noncommercial creativity, and increasingly as it affects commercial creativity
as well. Thus, as we'll see more clearly in the chapters below, the law's role is less and
less to support creativity, and more and more to protect certain industries against
competition. Just at the time digital technology could unleash an extraordinary range of
commercial and noncommercial creativity, the law burdens this creativity with insanely
complex and vague rules and with the threat of obscenely severe penalties. We may be
seeing, as Richard Florida writes, the "Rise of the Creative Class."
4 Unfortunately, we are
also seeing an extraordinary rise of regulation of this creative class.
These burdens make no sense in our tradition. We should begin by understanding that
tradition a bit more and by placing in their proper context the current battles about
behavior labeled "piracy."


CHAPTER ONE: Creators
In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of
that year, in a silent flop called Plane Crazy. In November, in New York City's Colony
Theater, in the first widely distributed cartoon synchronized with sound, Steamboat
Willie brought to life the character that would become Mickey Mouse.
Synchronized sound had been introduced to film a year earlier in the movie The Jazz
Singer. That success led Walt Disney to copy the technique and mix sound with cartoons.
No one knew whether it would work or, if it did work, whether it would win an audience.
But when Disney ran a test in the summer of 1928, the results were unambiguous. As
Disney describes that first experiment,
A couple of my boys could read music, and one of them could play a mouth organ. We
put them in a room where they could not see the screen and arranged to pipe their sound
into the room where our wives and friends were going to see the picture.

The boys worked from a music and sound-effects score. After several false starts, sound
and action got off with the gun. The mouth organist played the tune, the rest of us in the
sound department bammed tin pans and blew slide whistles on the beat. The
synchronization was pretty close.
The effect on our little audience was nothing less than electric. They responded almost
instinctively to this union of sound and motion. I thought they were kidding me. So they
put me in the audience and ran the action again. It was terrible, but it was wonderful! And
it was something new!
1
Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks,