Against Intellectual Monopoly

of a great number of U.S. writers and scientists toward the
end of the nineteenth century.
    But how relevant for the modern era are copyright arrangements from
the nineteenth century? Books, which had to be moved from England to the
United States by clipper ship, can now be transmitted over the Internet at
nearly the speed of light. Furthermore, although the data show that some
English authors were paid more by their U.S. publishers than they earned
in England, we may wonder how many, and if they were paid enough to
compensate them for the cost of their creative efforts. What would happen
to an author today without copyright?
    This question is not easy to answer - because today virtually everything written is copyrighted, whether or not intended by the author. There
is, however, one important exception - documents produced by the U.S. government. Not, you might think, the stuff of best sellers, and hopefully
not fiction. But it does turn out that some government documents have
been best sellers. This makes it possible to ask in a straightforward way,
How much can be earned in the absence of copyright? The answer may
surprise you as much as it surprised us.

    The most significant government best seller of recent years has the rather
off-putting title The Final Report of the National Commission on Terrorist
Attacks Upon the United States, but it is better known simply as the 911 Commission Report.14 The report was released to the public at noon on
Thursday, July 22, 2004. At that time, it was freely available for downloading
from a government Web site. A printed version of the report published by W.
W. Norton simultaneously went on sale in bookstores. Norton had signed
an interesting agreement with the government.
    The 81-year-old publisher struck an unusual publishing deal with the 9/11 commission back in May: Norton agreed to issue the paperback version of the report
on the day of its public release.... Norton did not pay for the publishing rights, but
had to foot the bill for a rush printing and shipping job; the commission did not
hand over the manuscript until the last possible moment, in order to prevent leaks.
The company will not reveal how much this cost, or when precisely it obtained
the report. But expedited printings always cost extra, making it that much more
difficult for Norton to realize a profit.
    In addition, the commission and Norton agreed in May on the 568-page tome's
rather low cover price of $10, making it that much harder for the publisher to recoup
its costs. (Amazon.com is currently selling copies for $8 plus shipping, while visitors
to the Government Printing Office bookstore in Washington, D.C. can purchase its
version of the report for $8.50.) There is also competition from the commission's
Web site, which is offering a downloadable copy of the report for free. And Norton
also agreed to provide one free copy to the family of every 9/11 victim.15
    This might sound like Norton struck a rather bad deal - one imagines
that other publishers were congratulating themselves on not having been
taken advantage of by sharp government negotiators. It turns out, however,
that Norton's rivals were, in fact, envious of this deal. One competitor in
particular - the New York Times - described the deal as a "royalty-free
windfall,"16 which does not sound like a bad thing to have.
    To be clear, what Norton received from the government was the right
to publish first, and the right to use the word authorized in the title. What
it did not get was the usual copyright, the right to exclusively publish
the book. Because it is a U.S. government document, the moment it was
released, other individuals, and more important, publishing houses, had
the right to buy or download copies and to make and resell additional
copies - electronically or in print, at a price of their choosing, in direct
competition with Norton. In other words, after the release of the book on July 22, the market became a conventional competitive market. And the
right to compete with Norton was not a purely hypothetical one. Another
publisher, St. Martin's, in collaboration with the New York Times, released
its own version of the report in early August, about two weeks after Norton,
and this version contained not only the entire government report but also
additional articles and analysis by New York Times reporters. Like the Norton
version, this version was also a best seller.17 In addition, it is