The internet makes copying cheap. Businesses that see their livelihood as dependent on the restriction of copying – concentrated in the recording, film, publishing and software industries – are understandably upset. Their goal is to have the same ability to control their content as they had in an analog world but to keep all the benefits of pervasiveness, cost saving, and viral marketing that a global digital network brings. To that end, they have moved aggressively to change laws worldwide, to introduce stiffer penalties, expand rights, mandate technological locks, forbid reverse engineering, and increase enforcement. It is not so much a case of wanting to have their cake and eat it, as to have their cake and make your cake illegal.

Yet there are hints in each of these industries of a different business model, one that aims to encourage, rather than to forbid copying. At the moment, the hints are only that – a scattering of anecdotes suggesting alternative ways of supporting creativity. It is not clear if they will thrive or even survive, still less whether they can “scale” to a broader audience. Still, if the alternative plan is to make the internet illegal or sue grandmothers for downloading, it might be worth taking a look at them. In my next few columns, that is what I will do – study “copy-friendly” businesses, beginning today with publishing.

Yochai Benkler is a prominent academic. His widely praised book about the network economy, The Wealth of Networks, was published by Yale Press – a publisher not known for its radicalism. Yet with his publisher’s approval Benkler’s book is available for free online under a Creative Commons license. Instead of paying $40 one can simply download the book. Its sales are reportedly in the top rank of academic books. Benkler is delighted with the additional 20,000 readers who have downloaded it.

Benkler is following in the footsteps of Larry Lessig, the founder of Creative Commons and author of Free Culture. Lessig’s work has been central to the practice of making books available for free online under licenses that make it legal for readers to copy, print and share them with others. He stopped counting downloads of his own work once the count hit 500,000. Yet his mass-market books continue to sell well.

Can this method work for authors – and publishers – who need to make their living out of books? There are hints it might. Even before the academics, Cory Doctorow, a brilliant young science fiction author, had adopted the same system for his work. 700,000 copies of his first novel, Down and Out in the Magic Kingdom have been downloaded for free. It is also in its sixth print edition. In a recent article in Forbes, Doctorow listed benefits from the exposure he gains, ranging from speaking engagements, to magazine commissions, and professional advancement. Presumably his publishers believe it attracts paying readers.

More generally, science fiction writers – with their delight in counter-intuitive futurism – are conspicuous early adopters of copy-friendly methods. One publishing house – Baen – has a free library on its site in which authors put up their older books for free download; in some cases directly competing with the publisher’s own paperbacks. The editor of the library reports a strong positive effect on sales. Outside of sci-fi O’Reilly, the software publishing house, does something similar with its Open Books Project.

I have experimented too. My co-authors and I made our comic book about filmmaking and intellectual property freely available digitally. In 9 months it has been downloaded by over 100,000 people from all over the world. The license allows anyone to copy it or put it on P2P networks – provided the use is non-commercial – and this happened immediately. We have no way of tracking those downloads, but they add to the total. We have sold about 6000 paper copies, had two offers of translation and one film channel approach us about animation – and the book will not even reach brick and mortar bookstores until next month. I am trying the same thing, chapter by chapter, with my new novel – a literary mystery about the search for the true author of Shakespeare’s works. Are readers of historical detective stories as net-savvy as science fiction aficionados? It will be interesting to find out.

Of course, these experiments are marginal. They are being tried by those in non-traditional genres, or those who can afford to gamble. At the moment, the numbers are small. But most innovation happens on the margins. It would be just as wrong for us to conclude that these experiments represent the future as to assume they do not.

Why might free digital availability make sense for parts of the publishing industry? First, most people hate reading a book on a screen, but like finding out if it is worth buying. I am sure I have lost some sales, but my guess is that I have gained more new readers who otherwise would be unaware of my work, and who treat the digital version as a “sampler,” to which they then introduce others. This is a leap of faith but not an unreasonable one. Second, even professional authors make money in multiple ways other than by royalties - ranging from options on film production to commissions for magazine articles to consulting, teaching and speaker fees. Most are aided by wider exposure. As Doctorow says, “my biggest fear as an author isn’t illicit copying, it is obscurity.” Third, digital distribution is almost free. The “cost” is the gamble over lost sales, not remaindered books with their covers torn off. Some publishers are willing to take the risk to build current and future demand.

Who is least likely to try free digital distribution? The blockbuster author. Do not expect to see Harry Potter released this way. JK Rowling does not have to struggle against obscurity, and, given market saturation, it is unlikely that her publisher would see the method working for her. But the next Rowling? That is another story. And perhaps a free one.

James Boyle is professor of law at Duke University. His newest book is a literary mystery called The Shakespeare Chronicles.

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