File-sharing and the future of publishing

Megan McArdle has recently posted a couple of excellent blog posts (here and here) on The Atlantic on the subject of illegal downloading, and where on the spectrum from file-sharing to file-stealing it really sits.

This is, of course, a thorny problem – and one that excites a great deal of passion on either side. And although music and film have borne the brunt of the assault on their rights so far, books cannot be far behind. Certainly, one leading Spanish author has already quit writing in disgust once she realised that more of her books were being downloaded illegally than being bought.

But is this a cultural problem, masquerading as a technological problem, or a technological problem masquerading as a legal one? Sadly, it is probably all three.

In essence, like the law, the argument proceeds by analogy and precedent. To what extent is the unauthorised uploading and downloading of an album like theft – that is, like taking a physical product from a retailer’s premises without paying? Or, conversely, to what extent is it like copying it onto a cassette or CD for specific a friend to hear, or buying and selling it on the second-hand market? After all, all three activities could be said to deprive the artist of income, but only one is the subject of much debate.
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The trial of Sir Walter Ralegh: a transcript

The Great Hall at Winchester

Sir Walter Ralegh was tried for treason in the great hall of Winchester Castle on Thursday 17 November 1603. As with almost all treason trials of the period, the result was a foregone conclusion: he was found guilty. The jury took less than fifteen minutes to reach its conclusion, surprising even the king’s counsel, the recently knighted Sir Edward Coke, in its speed: he was still out walking in the castle gardens when the verdict came in.

And yet, the day was in many respects a personal triumph for Ralegh.

Hitherto, he had been widely detested by both his peers and the populace for his arrogance and apparent avarice. He had been, one courtier said a year or two previously, ‘the most hated man in England’. Indeed, the journey from his prison in the Tower of London to the castle in Winchester – the court was out of London because of an outbreak of plague – was particularly fraught. ‘It is almost incredible with what speeches and execrations he was exclaimed upon all the way through London and the towns as he went; which they say he neglected and scorned, as proceeding from base and rascal people. They threw tobacco-pipes, stones and mire at him, as he was carried in the coach,’ a friend at court wrote to the earl of Shrewsbury.

The dignity, courage and wit with which he defended himself during these few brief hours in Winchester changed all that irrevocably. ‘In half a day,’ one witness said, ‘the mind of all the company was changed from the extremest hate to the greatest pity.’ Another said: ‘never [had] any man spoke so well in times past, nor would do in the world to come’. A third, bringing the news to James I, reported that ‘whereas when he saw him first, he was so led with the common hatred, that he would have gone a hundred miles to have seen him hanged; he would, ere he parted, have gone a thousand to have saved his life’.
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The Grotian moment: Hugo Grotius and the invention of international law

Hugo Grotius (1583-1645)

A lawyer serving a life sentence escapes from prison hidden in a bookcase: as a plot point it would have the sort of ironic neatness that gives novelists and screenwriters a bad name. In this instance, however, it is true.

It happened on 22 March 1621. The prison was the 14th Century castle of Loevestein, which stands at the meeting of the Meuse and Waal rivers in the Dutch United Provinces. And the lawyer in question was Huigh de Groot (better known then and now as Hugo Grotius). The charge? We shall come to that later.

But to describe Grotius as merely a lawyer is to do him scant justice. In an age when polymaths were less rare he was considered exceptional. He was a philosopher, a diplomat, a historian and a poet (in Latin and in Dutch); he was hailed as ‘the miracle of Holland’ when just 15 by Henri IV of France; Milton met him and admired his dramatic poem Adamus Exul (‘Adam in Exile’); Sweden’s Gustavus Adolphus carried his writings with him wherever he went.

And yet it is on his work as a legal theorist that his reputation now rests. He is, simply, the father of international law. To this day, whenever international lawyers discuss great leaps forward in their field, they describe them as Grotian moments. The establishment of the UN at the end of World War II was one such moment; the abolition of slavery another.

At the time of his incarceration, however, all this is beside the point. In 1621, his greatest work was ahead of him. Had he remained in Loevestein for the rest of his life, it is debatable what he would have achieved – and what, if anything, he would be remembered for.
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