Leaving aside the many legal and ethical questions associated with the publication of John Bolton’s The Room Where it Happened, there’s one question nobody (to my knowledge) has asked: Why should John Bolton get copyright protection?

As a matter of law, this is what lawyers call a “stupid question.” Under virtually every copyright regime in human history, Bolton’s book would be eligible for copyright. But when asked concerning the economics of the publishing industry and the public’s right to know what happened in the room where it happened, the question becomes far more interesting.

The Room Where it Happened will be a financial success. The book is number one on Amazon Kindle–with 200,000 copies already shipped to booksellers–and Bolton has secured a slew of top-dollar speaking engagements.

The army of eager readers pre-ordering the book and all those who will buy it as soon as it is released are evidence of a lead-time advantage that exists independent of exclusivity and isn’t unique to this situation.

A few weeks in theaters is enough to make back the production cost (and then some) of a blockbuster movie. In the complete absence of copyright, some people would probably wait to grab a free copy online; there are already pirated copies of The Room Where it Happened floating around the internet. But every pre-order of a book or game, and every packed theater at a midnight premier, is an opportunity to charge a premium that doesn’t rely on copyright.

An obvious response to this is that, while there will always be a population willing to pay to receive content as soon as possible, among those first in line are those willing to wait a little while for it to appear online for free–especially if there were no legal risks for copying. This is probably true on the margins. Still, it doesn’t imply that nobody (or next to nobody) would purchase this book, and we have a few natural experiments to prove it.

Thanks to the government edicts doctrine, all works created by government officials in the course of their official duties are in the public domain. Court decisions, legislation, and reports of all kinds are all posted online for free. If we apply the logic that in the absence of copyright (almost) nobody would purchase what they can get online for free, then the sales of high-profile government reports would be negligible.

This couldn’t be further from the truth. The Starr Report, the first “blockbuster” government publication after the dawn of the internet, sold millions of paperback copies shortly after its release. This is back in the days of laserjet and low-resolution computer monitors, so it’s certainly not a one-to-one comparison. However, we still see sales of these reports even as reading on a computer became more tolerable. Released in July 2004, the 9/11 Commission Report sold over a million copies by November of that year. It vastly outperformed The Financial Crisis Inquiry Report, which still sold all 25,000 copies from its initial printing in a month. The Mueller Report was also a minor bestseller.

For all intents and purposes, copyright law does’t exist for these works. I can’t say whether or not the government made its money back from these sales (the answer is likely no due to the intensive fact-finding involved and sales by third parties), and these examples are far from sufficient to refute the case for copyright as a whole. Even so, these natural experiments thoroughly disprove the notion that free access necessarily makes for a commercial flop.

As a memoir of sorts, The Room Where It Happened doesn’t have the overhead of a government inquiry. Time and effort surely went into the writing and editing of the book, but the source material is Bolton’s time in the White House. This leads to the second reason The Room Where it Happened should be in the public domain: the contents should have been public record.

Ten thousand years ago, in January 2020, there was the possibility that John Bolton would testify during the impeachment trial of Donald Trump. This didn’t happen. Had it happened, it is highly likely that a significant amount of the information in The Room Where it Happened would have been made available to the public.

Would this have changed the outcome of the impeachment trial? Probably not. Had he testified, would everything in The Room Where it Happened come out in Bolton’s testimony? Again, probably not. But John Bolton’s words would have been on the record and not behind a paywall.

In the context of John Bolton, this may not seem like a serious issue. Aside from the pirated copies, reviews of the book have already revealed some truly outlandish conduct by the Trump Administration–and the President in particular. But it is worth knowing what happened in his words specifically for the same reason direct testimony is more valuable than an accurate second-hand account.

Direct quotations, even lengthy ones, would qualify as fair use depending on the context, and I don’t think there’s a serious risk of this book falling down the same copyright memory hole that books from the 20th century have. Still, unrestricted access for the American public can only be guaranteed by the public domain.

There is obviously a middle ground between the public domain and our current copyright laws. It is also safe to say that, whatever his motives, John Bolton has done some kind of service by writing The Room Where it Happened. Regardless, it’s cases like these that create the opportunity to critically examine both the economic logic of copyright law and how to balance it with access to information in a democracy.

Techdirt.