Pixelization

Digital History Made This Month: iTunes Music Now DRM Free

This month, Apple's iTunes made the final transition to ridding itself of DRM (digital rights management) restrictions on the music files it sells. That means that the iTunes software and associated encryption algorithms are no longer trying to prevent you from taking newly purchased iTunes music to an unauthorized computer.

This is a great thing for iTunes consumers, because it means they no longer need to worry about the red tape of trying to authorize and de-authorize different computers and players just to hear the music that's already been paid for. It also means iTunes consumers are no longer tied down to iPods and iTunes software to play their music. 

But there is a significance to this that goes far beyond its impact on consumers or Apple. I would call this is a red-letter day in the history of intellectual property. Ten years ago, when Napster and illegal downloading were scarring the pants off the record business and much of the rest of the entertainment industry, it looked like to me and to many people like we were headed into an era of trusted systems – where proprietary formats and cooperating hardware would hold a Big-Brother-like grip over audiences – deciding what people could and could not do with reproductions of copyrighted works. It was in that environment that the Digital Millennium Copyright Act was passed, which made it a criminal offense to defeat DRM systems through hacking or reverse engineering. 

Apple's successful push to make iTunes music DRM-free indicates that the survival of the entertainment industry, in fact, did not hinge on DRM technology and the passage of the DMCA as Big Hollywood would have had everyone believe. It turns out, if you charge reasonable prices, people are generally willing to pay rather than go out of their way to get copies unlawfully.

A big downside of DRM for society is that it creates a technological barrier to exercising fair-use rights. So this development with iTunes is a very happy one. By shedding DRM in this instance, the free market actually provided people with a freedom that Congress was all too willing to bargain away. 

Acknowledging What Harvard Law Owes to Slaves

The three sheaves of wheat on the Harvard Law School coat of arms (top), derived from the family crest of Isaac Royall (bottom), may be fairly said to represent the labor of slaves.

Harvard Law School was founded with money amassed through slavery.

This is a fact that HLS, my alma mater, does not try to hide. But it is a truth that is not exactly advertised either. If you visit the “Our History” page of the law school’s website, you get a somewhat-whitewashed version of the school’s heritage. More than a third of the 311-word synopsis of HLS history reads as follows:

The Law School traces its origins to Isaac Royall, who in 1781 left land from his estate in nearby Medford to Harvard University, with the proceeds intended to "endow of a Professor of Laws at said college, or a Professor of Physics and Anatomy." Harvard took the opportunity to fund its first chair in law, and the Royall chair continues to support an HLS professor today, more than 200 years later.

In 1806, Royall’s heirs sold the rest of his estate and used the funds to establish a school of law at Harvard University. The Royall family coat-of-arms -- three stacked wheat sheaves beneath the university motto, Veritas -- was adopted as the school’s shield.

What this account omits entirely is that Isaac Royall was a slaveholder – his donated estate was built from slave labor and the slave trade.

I appreciate that the issue of how Harvard Law deals with its slave-money origins raises a set of very difficult questions. (A very thoughtful and wonderfully engaging discussion by Janet Halley, Harvard’s current Royall Chair, can be found here.)

Nonetheless, I think there is one simple question of fairness that transcends the historical, political, and social complexities: Shouldn’t HLS acknowledge Royall’s slaves as it does all other benefactors?

Surely they are benefactors. We know that the slaves were not paid the wages they were owed for their labor. So, to borrow a concept from remedies, it seems only fair that Royall’s slaves should, in retrospect, be awarded something like a constructive trust on their unremitted earnings. That trust property, having been converted to charitable contribution, leaves a residue of acknowledgement of giving. That acknowledgement is currently possessed, posthumously, by Royall. It seems only equitable to shift that res to the account of the slaves, or at least allow them to share as co-tenants.

I think it follows that, at a minimum, Harvard Law ought to acknowledge the slaves’ contributions in the school website’s historical narrative. And I think a tangible statement on campus – a wall-mounted inscription somewhere – would very much be in order. Many of the slaves’ names are known and are listed by The Royall House Association. Those individuals should be acknowledged. Using the information found on the Royall House Association’s rolls, I imagine the inscription might read as follows:

IN GRATEFUL ACKNOWLEDGEMENT OF THE INVOLUNTARY CONTRIBUTIONS OF THE SLAVES OF THE ROYALL ESTATE FOR THE FOUNDING ENDOWMENT OF HARVARD LAW SCHOOL:

HECTOR
QUACO
RUTH
NAN
CUFF
PETER JUNE
CUFFEE
PETER
FORTUNE
CAPTAIN
BLACK BETTY
ABBA
QUACOE
DIANA
JOHN
NANCY
BETTY
GEORGE
SARAH
JACOB
JEMMY
ABBA
ROBIN
COBA
WALKER
NUBA
TRACE
TOBEY
PRESENT
CATO
BARRON
NED
HOUSE PETER
ROBIN
QUAMINO
SMITH
PHILLIP
TRACE
SUE (SUSANNAH)
JONTO
OLD NEGRO MAN
SANTO
GIRL 6 YEARS OF AGE
OLD COOK
GEORGE
ABRAHAM
BETSEY
NANCY
COOPER
HAGAR
JOSEPH
MIRA
PHEBE
PLATO
STEPHY
DIANA
JOSEPH
BELINDA
JOSEPH
PRINE
PRISCILLA
BATHSHEBA
NANNY
AND OTHERS WHOSE NAMES ARE LOST

[Reposted from my April 21, 2009 post at PrawfsBlawg. Some very interesting comments followed.]