I am the member who asked Uli about this old font. If someone thinks I should not digitize or sell the font under the original name, I would like to hear his opinion here. Until now I am convinced the typeface has all the public domains attributes. Thank you.

Mergenthaler Linotype distributed Erbar Sans, and doubtless trademarked the name. I would check with their digital successors before proceeding. Several years back, I--and several other foundries and myfonts.com--got sued by Berthold over the use of the names City and Boulevard in any way, shape or form in a font name. My "offenders" were Boogaloo Boulevard NF (nothing AT ALL like Berthold Boulevard) and City SLicker (nothing AL ALL like Berthold City)...

Really not sure about this:
"Therefore, a digitization of Erbar Mediaeval will be public domain too, just like the original font made by Erbar is public domain."

Its really depending what you're doing as designer. Based on a the "fact" that new technologies demand new designs (thanks Mr Zapf), I assume that a good designer will not just scan and do autotrace but will really design a typeface in the style of the old typeface.

Its what happening all the time in the history of typeface. *Adobe Garamond* and so on.

But indeed, what ever new interpretation of a recent design, contact first any people connected with the original typeface or current digital version.

oldnick:

> Mergenthaler Linotype distributed Erbar Sans, and doubtless trademarked the name.

Prove it!

As regards "Erbar Mediaeval" (in Germany also spelled "Erbar Mediäval"), this font name consists of two components:

1) "Erbar" is the name of a German typographer
2) "Mediaeval" is the generic German term for "old style"

1) ad "Mediaeval" as a Generic term:

Generic terms such as "Mediaeval" cannot be registered. Harvey Hunt even tried to register the generic term "Standard", but did not succeed.

www.sanskritweb.net/forgers/standard.pdf

2) ad "Erbar" as the name of a person:

The name "Erbar" without any additions cannot be registered as a font name.

The German typographic company Schumacher-Gebler in Munich recently tried in vain to register the name "Erbar" for a font. The application was rejected by the German Trademark Office with the remark "Eintragung nicht möglich" (= "Registration not possible").

see www.sanskritweb.net/temporary/Erbar-Trademark.pdf

But the combination "Erbar" + "Mediaeval" = "Erbar Mediaeval" could be registered as a trademark for the font shown above

www.sanskritweb.net/temporary/Erbar-II.jpg

As far as I know, nobody ever tried to register this font name, and as far as I know, nobody offers the font "Erbar Mediaeval" for sale. Hence, whosoever comes first and publishes a digitization of the "Erbar Mediaeval" font, may call it "Erbar Mediaeval".

@oldnick - That is a horrible story ! I don't know how could that happen. Seems nowadays there are a lot of people in the font business who spend more time sueing others than making fonts. I see you have an impressive portfolio of lovely old style typefaces - and what a coincidence! a font from the same period (1910 -1913) and from the same part of the world - I'm talking about Kleukens Antiqua :

http://new.myfonts.com/fonts/nicksfonts/kleukens-antiqua-nf/

Can you, please, give me a few hints, what measures did you take to assure that nobody sues you (hope not already happened) for reviving and selling this typeface with the original name ? Thank you

As regards Harvey Hunt, read his famous claim
on page 7 of the file mentioned above:

www.sanskritweb.net/forgers/standard.pdf

To the best of my knowledge and belief, after
inquiry, there is no “standard” font in the
type industry.

To the best of my knowledge and belief, after
inquiry, the term STANDARD as understood in
the type industry has no significance other
than to identify the typeface marketed by
Berthold under the mark BERTHOLD STANDARD.

I wonder whether the inmates of a lunatic asylum
would agree to this utter nonsense.

@uli...

I don't need to prove anything; I merely made a "better safe than sorry" suggestion.

Yes, copyright laws differ from country to country: what Germany says cannot be done may be perfectly allowable under US copyright law. For example, Berthold claimed copyright to the name Boton BE/BQ, which effectively prevented Alfred Boton from using HIS OWN NAME for any other of his works in the US.

Lawsuits don't have to have a sound basis in order to be filed but, in US courts at least, once a person is sued, it is his or her responsibility to prove that the claims are bogus: in other words, in civil court, one is presumed guilty unless he or she proves otherwise. So, I repeat: better safe than sorry.

jfp:

Really not sure about this: "Therefore, a digitization of Erbar Mediaeval will be public domain too, just like the original font made by Erbar is public domain." Its really depending what you're doing as designer. Based on a the "fact" that new technologies demand new designs (thanks Mr Zapf), I assume that a good designer will not just scan and do autotrace but will really design a typeface in the style of the old typeface. Its what happening all the time in the history of typeface. *Adobe Garamond* and so on.

Is this illegal Copyright Revival Procedure customary in France too?

Is it customary in France to modify public-domain works and to rename them

Porchez Balzac
Porchez Gauguin

and to add Revived Copyright Notices to the public-domain works

Porchez Balzac © Copyright by Jean F Porchez 2011
Porchez Gauguin © Copyright by Jean F Porchez 2011

So, I repeat: better safe than sorry.

You said it. It's getting to the point where I think I should name fonts with strings of random letters to avoid getting more C&D letters.

@ray
Seriously? Whose jerking you around about names?

@oldnick
"Berthold claimed copyright to the name Boton BE/BQ"
Can't claim copyright to that. Trademark perhaps?

Trademark perhaps?

TM it is...

Boton is Registered Trademark for entire Europe till 2020

www.sanskritweb.net/temporary/Boton-Trademark.pdf

"Do not make the legal mistake of claiming copyright to digitizations of the public domain Erbar fonts, because nobody can claim copyright to something that is in public domain. Neither the heirs of Erbar nor anyone else can do that. Therefore, a digitization of Erbar Mediaeval will be public domain too, just like the original font made by Erbar is public domain."

"Many people at the Typophile website erroneously think that they can become the copyright owner of a public domain font by digitizing this public domain font. This is legal nonsense."

Uli is misrepresenting both the views of "many people at the Typophile website" and as far as I can tell, the reasonably settled state of US law on the subject, by conflating the underlying design and the digital representation.

What is commonly believed and claimed is that by digitizing a public domain *design*, one may create a digital font and have copyright on the font. This belief is founded on pre-existing practice, strongly supported by both the broad situation and the details of the summary judgment of Judge Ronald Whyte of the US 9th Federal District Court in the Adobe v SSI case.

http://directory.serifmagazine.com/Ethics_and_Law/Copyright/judgement.php4

Specifically, Whyte found:

"The evidence presented shows that there is some creativity in designing the font software programs. While the glyph dictates to a certain extent what points the editor must choose, it does not dictate every point that must be chosen. Adobe has shown that font editors make creative choices as to what points to select based on the image in front of them on the computer screen. The code is determined directly from the selection of the points. Thus, any copying of the points is copying of literal expression, that is, in essence, copying of the computer code itself."

Whether or not the abstract design is protected by copyright (which it sadly is not in the USA), the placement of on and off-curve points in digitizing that design is itself protected by copyright in the USA. Judge Whyte found this to be the case as a simple matter of law.

Neither Uli nor I is a lawyer, and the sensible thing to do would be to consult one on these sorts of questions.

The other sensible thing to do would be to consider the past behavior of the most likely complainant, Berthold, the likelihood of them suing you, and whether you are willing to contend with such a lawsuit, even if you have reason to believe you could win in the end.

Cheers,

T

>Whether or not the abstract design is protected by copyright (which it sadly is not in the USA), the placement of on and off-curve points in digitizing that design is itself protected by copyright in the USA.

Interesting. Looking through the telescope the other way, does that then mean that any pre- or non-digital face can be revived/digitised without infringing copyright (positioning nodes and bcps from scratch)?

Let me add a small information.

A type design from someone dead in 1935 is in public domain in almost all countries –standard copyright length varies from 50 to 70 years. So, it can be freely reused to create new fonts. But the new font based on that type design is not in public domain.

See: a new font has other additional works, as digitalization, OT programing and kerning. This is new intellectual creation and cannot be freely reused. Thus, the font cannot be freely copied, its use must follow the EULA conditions.

What remain in public domain even in the new font is the type design. This means anyone can produce another font using the same design. There is no illegal copy of the glyphs as their shapes are public (of course, I'm talking about a simple reedition of a font in new format. maybe with small adjusts, and not a revival).

In some countries, there is a split between copyright and software protection. Under this legal model, this new font wouldn't have elements protected by copyright (the only artistic creation is the type design and it's expired). But anyway this new font cannot be copied due to software protection –which actually is very similar to copyright, but preserves technical solutions instead of artistic creations.

Analogy with music applies. A piece from Debussy is in public domain; it can be freely performed and recorded by any orchestra. But a CD with his works is not public domain –it brings efforts by other people, some of them also protected by copyright, as performers– and cannot be copied.

Almost all Western countries follow these guidelines, with small variations, as Intellectual Property rules proposed by WIPO were adopted in a near standard basis.

Since Adobe v SSi has been brought up, the following is worth a read:

The SSI/Adobe Case

As for myself, as a matter of law, not morality, I agree with Luc Devroye's opinion:

"I think that this particular judge was taken for a ride by the lawyers of Adobe and Emigre. He made an erroneous judgment, and Paul King was within his legal rights."

Devroye adds:

"Morally, Paul King's actions were deplorable, but that is another matter."

Me, I don't know enough about the case. Or King's motives.

@Richard
Seriously? Whose jerking you around about names?

monolithic font corporations
rock bands
movie companies

The only plus side to making fonts based on trademarked logos is that it's kind of fun to try to guess who the next C&D letter is going to come from. On my list of reasons why I don't recommend making free fonts: contacting every free font site to recall a font release over a decade ago is a frustrating/humiliating task. At least with commercial vendors, I can recall a font in a matter of minutes. A few weeks ago it took me 5 solid days to attempt to recall a free font from a zillion font sites who deliberately hide their contact information.

typodermic:

> A few weeks ago it took me 5 solid days to attempt to recall a free font from a zillion font sites

This is surprising, since the trademark law does not apply to non-trade things.

If a font is really for free, i.e. if the font is not a commercial commodity sold against payment, but a font made just for fun, the trademark law does not apply at all to such a non-commercial, non-trade object.

For instance, if someone writes the trademark "Pepsi-Cola" just for fun on the hood of his old car, he cannot be sued by PepsiCo Inc. The same holds true, if someone making a free font as a pastime or leisure activity labels this free font "Pepsi-Cola".

Even a novelist cannot be sued by PepsiCo Inc, if the novel begins with the sentence:

"The trademark shyster with his greedy eyes was drinking Pepsi-Cola"

If all this were forbidden by trademark law, you could not even enter a drug store or a pub and say: "I want to drink a Pepsi-Cola", without fearing to receive a cease-and-desist letter by some trademark shyster.

Thanks, Ray. Interesting. It's the technological times we live in. Even pre-internet, there were law firms who specialized in this. If there was any similarity in the name at all, a pre-prepared letter went out. Like a collection agency. The one time it happened to me, I had to have an attorney respond to explain that they were off the wall and that was the end of it. That's the problem - the costs of defending. In your case, the cost of a recall.
Is it fair to call it harrassment? Well, sometimes it most definitely is. Competitive gamesmanship.
And once in a blue moon it's legitimate, of course.

I wrote something more detailed and critical in this post, but I turned around and immediately deleted it because I realized I just don't want to engage any further, and rather revert to my policy of not responding to anything Uli says.

In place of that lengthy post, I'll just reiterate that Uli is not a lawyer. I in return am certainly not offering legal advice, but merely trying to suggest that some of the advice being offered here has been highly suspect. Go talk to a lawyer if you want legal advice. Also, do some reading on your own. Read the Adobe vs SSI decision, which I linked to earlier. Read up on trademarks.

I will say in parting, as somebody who has been around the block a few times, if I was given a choice between cutting off one of my own toes and digitizing and naming a font as described here, I would carefully consider the balance between these options, and ask "which toe"?

Cheers,

T

Uli is not a lawyer.

Nor, it would seem, is he familiar with American Civil Law. I reiterate, in U.S. civil courts, a case does not have to have merit in order to be filed, and defending one's self against a lawsuit, frivolous or not, can be costly and/or time-consuming.

Trademark law does not apply to non-trade things.

This is wrong. Everything eligible to be protected under any category of intellectual property (what includes trademark for font names) would keep its privileges no matters if it is commercially used or not. To freely distribute a font is not a right withdrawal. Of course, commercial use is the main privilege granted to its owner, but it's not the only one.

Usually there is confusion between trademarks, patents, industrial designs and copyrights. When discussing these matters in relation to fonts, it may refer to trademarks (font name), copyrights (shapes) or copyright-related issues (codes, mappings, kerning, hinting, etc.).

I suggest some survey in WIPO, where one finds much information about this and also some ways to solve international infringements.

In U.S. civil courts, a case does not have to have merit in order to be filed.

Unhappily, it's also this way in many other places. And even in countries where legal procedures permit the judge to refuse a case due to complete lack of minimum sense, this is not always done due to excessive number of cases.

There are notorious cases where people sued God, Devil, Abraham, Adam, etc. and the procedure advanced for weeks or months before a judge finally aborted it.

Last year a person filed dozens of identical cases in Rio because he did bet and lost in Brazilian Federal lottery. The Federal Bank who manages the lottery was even notified to answer some of the cases before Judiciary finally perceived what was happening...

Freiberger:

> Trademark law does not apply to non-trade things.

> This is wrong.

If you get a daughter (undisputedly a non-trade thing) and you name your daughter Mercedes, neither the Mercedes car company nor any other company claiming trademark rights to the name Mercedes can sue you for trademark infringement.

Uli, the problem here is the difference between goodies freely available (as a free font) and things which cannot be subject of commercial operations (as the daughter in your example). These last does produce trademarks or any other intellectual property. But a free font is not an example of this category.

You call these things non-trade. I'm not sure (as my English is far from good) but I thought non-trade was related to tertiary sector and non profit actions, not? In Roman Law we have the expression "goodies out of commerce" to indicate things like human beings, personal names, sunlight, wind, rain, etc. Probably there is a Common Law equivalent.

Anyway, a free font can have trademarks or other IPs associated.

Sidenote: after Jellinek's story, it would be funny if Mercedes sue someone who name a daughter Mercedes.

"Go talk to a lawyer if you want legal advice."

I think this misses the problem, Thomas. Why is it so hard to figure out what the law is? What's permissible and what isn't? What kind of situation are we in that we need to consult with lawyers at every turn? (Which of course puts the people with the money for lawyers at a natural advantage.)

If there's any lesson to be had in this thread (doubtful, I know, considering the BS level), I think that's it.

Rich

What kind of situation are we in that we need to consult with lawyers at every turn?

Not every turn. If someone is going to adopt appropriation as a business model, then it would be foolish to not take legal advice.
On the other hand, it's possible to design new typefaces with new names, and get by without a lawyer.

Nick Shinn writes:

On the other hand, it's possible to design new typefaces with new names, and get by without a lawyer.

With the myriads of fonts available, though, determining whether you've really got a new name can be tricky. Of course, the likelihood that an original font shares a name with another font which it closely resembles is extremely small (unless, of course, you're dealing with a name like 'Trajan' which suggests a particular pedigree), but even if the fonts are clearly distinct you still risk claims of trademark infringement.

André

@nickshinn

"On the other hand, it's possible to design new typefaces with new names, and get by without a lawyer."

I'm not so sure about that. Have you spoken to a lawyer about this?

BTW - I should make it clear that I'm not referring to behavior that's stupid by anyone's lights. If you look and see that someone has a trademarked name for a font you're either asking for trouble or out to prove a point if you name your font the same.

But in that case there is a Trademark registry to check. It's rather clear cut. Very little else is, in comparison.

Here's what one author has to say about this. (All of these instances are endnoted with citations from the actual cases in the original):

 "I would not have imagined that a temporary image of a Web page captured in the cache of my browser counted as a “copy” for the purposes of copyright law. I would have thought that it was fair use for a company to photocopy articles in journals it subscribed to, and paid for, in order to circulate them to its researchers. If a conservative Web site reposted news articles from liberal newspapers with critical commentary, that, too, would have seemed like fair use. I would have thought that it was beneficial competition, and not a trespass, for an electronic “aggregator” to gather together auction prices or airline fares, so as to give consumers more choice. I would not have thought that a search engine that catalogued and displayed in framed format the digital graphics found on the Internet would be sued for infringing the copyrights of the owners of those images. I would not have thought that I might be sued for violating intellectual property law if I tried to compete with a printer company by making toner cartridges that were compatible with its printers.

 "The examples go on. I know that the “research exemption” in U.S. patent law is very tightly limited, but I would have laughed if you had told me that even a research university was forbidden from doing research unless that research had no conceivable practical or academic worth - in other words that even in academia, in a project with no commercial goal, the research exemption only covered research that was completely pointless. Why have an exemption at all, in that case? I would have told an academic cryptography researcher that he need not fear legal threats from copyright owners simply for researching and publishing work on the vulnerabilities of copy protection schemes. I would not have thought that one could patent the idea of having an electronic Dutch auction on the Internet, working out the daily prices of a bundle of mutual funds through simple arithmetic, or buying something online with one click. I would have assumed that celebrities’ rights to control their images should end with their deaths, and that courts would agree that those rights were tightly limited by the First Amendment. Yet, in each of these cases, I would have been wrong, or at least I might be wrong — enough that a sane person would worry. Not all of the expansive claims eventually triumphed, of course, but some did. Guessing which would and which would not was hard even for me, though, as I said, I teach intellectual property law. You, probably, do not.

From The Public Domain: Enclosing The Commons Of The Mind by James Boyle
Boyle is a Professor of Law at Duke Law School

So, which lawyer are you going to consult? The guy who did the closing on your house?
You might as well, for all the difference it will make.

Don't get me started... I'm really tired of dealing with geniuses who think their creations - or a single thought in their heads for that matter, and that includes me - owes nothing to what came before. Appropriation, my ass.

Although this painting shows the trademark Pepsi-Cola

http://archive.liveauctioneers.com/archive4/wittlinandserfer/19533/1713_...

the painter cannot be sued for trademark infringement.

Nonsense, of course he can be sued. Whether or not the lawsuit would be successful is another matter.

Richard: I don't think the situation at hand is actually all that complex. If *I* were considering doing it, I'd assume that the printed design from pre-1935 is fair game as a source, that other people's recent digital font versions of that same design are not, and that the status of the name is uncertain but not worth the risk given that Berthold seems to have some claim on it. It's just that I know better than to offer legal advice as such.

I am myself on the verge of taking a printed work (rules for a complex strategy game) that was created over a couple of decades (1960-1983) by ongoing collaboration of a loose evolving and changing bunch of people who never bothered even sticking their names on it, and making my descendant of it publicly available. I'm putting a fair bit of work into tracking down some of those people first, to see if I can get their blessing and reassurance that such availability is cool with them and the kind of thing that they think the creators would have approved of. But technically there is a legal risk involved, and I recognize that, even if I think the likelihood of anyone who has a claim on some portion of the game rules turning up and objecting is vanishingly small.

Cheers,

T

Thomas Phinney:

> if I was given a choice between cutting off one of my own toes
and digitizing and naming a font as described here,
I would carefully consider the balance between these options,
and ask "which toe"?
> Berthold seems to have some claim on it.

You may start by cutting off your left toe.

Not Berthold, but Bauer claims US trademark rights:

see www.sanskritweb.net/temporary/Erbar-Trademark2.pdf

But since Erbar cannot be registered in Europe

see www.sanskritweb.net/temporary/Erbar-Trademark.pdf

registration for the USA is useless for Europe.

The Swiss Bauer outfit is a trademark grabber
specialized in writing cease-and-desist letters.

This one-man-outfit never made a digitization
of the old Erbar Mediaeval font.

Ah, that's a different kettle of fish. My apologies for mistaking the one for the other. They are rather different entities.

Cheers,

T

@thomas phinney

I'm just tired of hearing "consult an attorney". Intellectual Property law is a specialty and while it's been a long while since I've sought out a good IP attorney - I would expect a billing rate of at least $300.00 an hour. But I'm probably out of step and it's probably more like $500.00. And the answer to my questions, in all but the most clear-cut of cases would be, "Well, give me a retainer of $10,000.00 and I'll look into it."

By chance, I will be at Duke University over a long weekend in February and I'm going to see if I can interview Professor Boyle. Maybe he can even shed some light on fonts.

As for your project, it sounds like you've got more patience than I do!

Rich

BTW - I unexpectedly found a behind-the-scenes and extremely readable account by someone who has worked for years as Literary Expert Witness in copyright cases.

I know of him because of his writings on Prose and Rhetoric: Richard Lanham, former Professor at UCLA.

For anyone who finds the legal stuff interesting:
The David Mellinkoff Lecture: 8 February 2007, UCLA Law School

Fun reading and an eye opener for many, I'm sure.

Rich

Maybe he can even shed some light on fonts.

I doubt it.
People who don't know typography, whether scientists or lawyers or whatever, just don't get it.
And that's understandable, because one has to be a multidisciplinarian to really contribute -- which is why, for instance, a lawyer specializing in medical patents may well have a degree in pharmacology and another in law. (I know someone who does.)
Now show me the scientist or lawyer who claims to be an expert on type science or type law who actually has some professional experience or academic qualification in graphic design or typography.
I rest my case.

Nick:

> one has to be a multidisciplinarian ... a lawyer specializing in medical patents may well have a degree in pharmacology and another in law. (I know someone who does.)

I agree.

In Germany, for patent lawyers, this is a requirement.

For instance, at this German patent lawyer website, selected at random by me

www.patentoffice.de/html/our_patent_attorneys.html

all the patent lawyers listed have diploma in chemistry (Dipl.Chem.) or in physics (Dipl.Phys.) or in engineering (Dipl.Ing.) or in biology (Dipl.Biol.), etc.

I know it's momentous that Uli agrees with Nick but I have to bust the feel-good bubble: you're both as wrong as wrong can be.

Typefaces enjoy no claims of copyright. This is flat-out indisputably true.
Why would an IP attorney need to know a damned thing about type to function well?
It's irrelevant.
There is no need to be an expert on type science. Academic qualifications in graphic design or typography are equally irrelevant.

The claim is that fonts are copyrightable as software, not type. It is the original expression as it might or might not exist within the font as software that is the issue. Software is software, right? Code.
Type, as such, DOES NOT ENTER INTO IT except for how the code, as original expression (or not), shapes the resulting type. The design of that type is irrelevant. All typefaces are the same for the legal issues at hand. Pick a font, any font, doesn't matter.

Now show me the scientist or lawyer who claims to be an expert on type science or type law who actually has some professional experience or academic qualification in graphic design or typography.

For lawyers, that would be Frank Martinez, in NYC—which is probably why he's the single most popular lawyer for indie type foundries. I'd go straight to him in an instant if I was operating independently and had font legal issues I needed dealt with.

Type, as such, DOES NOT ENTER INTO IT except for how the code, as original expression (or not), shapes the resulting type....

Your initial point is right I think, as is the point that the design of the type is irrelevant (unless a design patent is involved, or you're outside the USA). But I don't agree with your conclusion that specific expertise is irrelevant. That specific expertise is about legal issues around fonts, not necessarily about type design per se.

I strongly believe it helps to have a lawyer who knows and understands the exact same stuff you're talking about, BEFORE you go and talk to them about it. Somebody who has already read the various legal info specifically relevant in this area, including understanding the published position of the US Copyright Office on the subject, as well as the Adobe v SSI case, and potentially others, depending on the nature of the claim. Do you want to pay for hours of their paralegal's time to find stuff, and then for the lawyer's time to read it? I know I don't.

Note in particular that there are issues specific to type in IP law, where it's not like other software. Take for example when Agfa Monotype sued Adobe over font embedding rights in sub-licensed fonts. That was very interesting, particularly when it got down to whether the font embedding bits constitute protection in a DMCA sense (they were found not to do so). Similarly it helps to know that US design patent can apply to fonts (again Adobe v SSI is informative), which is a way in which they are a bit different than most software.

Cheers,

T

> For lawyers, that would be Frank Martinez, in NYC

Frank J. Martinez is a guy registering trademarks for cease-and-desist outfits.

Martinez declared that the Bauer Types SA outfit owns the trademark "Erbar".

see http://www.sanskritweb.net/temporary/Erbar-Trademark2.pdf

However, the Bauer Types SA outfit is a "mailbox company" without employees and without offices.

The Bauer Types SA outfit "exists" as a "pillar box", "post box" or "mail box" of the Swiss consulting firm Studio Faim SA:

Bauer Types SA
Piazza C. Bernasconi 5
6830 Chiasso SWITZERLAND

c/o

Studio Faim SA
Piazza C. Bernasconi 5
6830 Chiasso SWITZERLAND

see www.swissguide.ch/it/consultatione-di-gestione/Chiasso/481615_studiofiam...

"I'd go straight to him in an instant if I was operating independently"
(Thomas Phinney)

Thanks for recommending a guy representing cease-and-desist outfits operating independently as the mailbox of a consulting firm.

@thomas phinney

"But I don't agree with your conclusion that specific expertise is irrelevant."

Maybe I wasn't clear.
The point is, as you note, expertise specific to what?

Expertise specific to typefaces? I gotta stick with irrelevant. Did the judge in Adobe v SSI have expertise specific to typefaces? Of course not. But still he rendered a decision in the case and even threw in some tortured technical analysis about "points".
'Typefaces' didn't enter into the analysis at all.

> some tortured technical analysis about "points".

The SSI judgment was a summary judgment:

see www.sanskritweb.net/forgers/ssi.pdf

see also www.sanskritweb.net/forgers/ssi2.pdf

In addition, the plaintiff (= Adobe) was the "expert" consulted by the judge. This is ridiculous. An independent expert such as mathematics professor Luc Devroye would have explained that "points" are no computer programs, no software.

Points are waystations on the journey. Every glyph in a font is described by a SPECIFIC set of mathematical instructions used to construct that glyph. Starting from a base reference (usually 0,0), the code lays out the waystations and the kinds of paths used to connect them. If the code used to describe a specific character in one fonts is ABSOLUTELY IDENTICAL to the code used to describe the same character in another font, chances are EXTREMELY HIGH that one is a direct copy of the other. Period.

As I have written here before, whether Uli's arguments are good or bad, US law doesn't care about his views unless he is a party to a lawsuit here. However, the US law does care about the judge's opinion in the Abobe et al. vs SSI case, as it set precedent. It might be overturned, but meanwhile it is, I believe, the guidance that everyone involved in font commerce in the US has looked to.

Geez, it's a lawyer's job to represent their clients, whether their clients are in the right or not. That's the whole way the legal system works, in pretty nearly every country in the world with a functioning independent legal system. Criticizing Martinez for effectively representing his client is just nuts. If you don't like it, blame Bauer for claiming a trademark they shouldn't, not their lawyer for sending a letter at their request.

For what it's worth Bauer Types SA is at least a bit more than just a faceless holding company with trademarks, I've met a couple of their people at type conferences, repeatedly.

Richard: You fail to address my point, which is that being familiar with the case law and the state of the law with respect to fonts is specific expertise. Martinez doesn't have to do a bunch of reading and research, which would have to be paid for by the client. Just knowing general info about copyright isn't enough, it's important to know how it has been applied in this area.

Cheers,

T

William Berkson:

> However, the US law does care about the judge's opinion in the Abobe et al. vs SSI case, as it set precedent.

The SSI summary judgment is not valid for all fonts of all companies in the world, but it is only valid for the US company SSI, which is defunct now, and it is only valid for one SSI font, namely for the Adobe font Utopia sold by SSI as the clone Veracity.

see www.sanskritweb.net/forgers/ssi.pdf

The SSI summary judgment is of no avail, if other companies sell the clone Veracity, about which judge Whyte made his summary judgment. For instance the website

www.azfonts.net

and numerous other websites offer the SSI clone Veracity and other SSI fonts for sale or for free download. Although Adobe knows that the clone Veracity and other SSI fonts have been offered for sale by numerous companies during the past ten years, Adobe never dared to sue any ot these companies for fear of losing at court, because the Whyte judgment was a strange summary judgment, which presumably will never be confirmed by any other judge.

>only valid for the US company SSI

Whether you like it or not other US courts will look to this case for guidance in future rulings. You don't seem to get the concept of "precedent".

@Thomas Phinney

"You fail to address my point, which is that being familiar with the case law and the state of the law with respect to fonts is specific expertise.
Oh yeah, of course I agree with that. (I didn't get that this was the kind of expertise you meant. Thought we were still on "design".)
This is the ordinary legal expertise one seeks from any lawyer.
Task-specific, let's call it. You don't go to a cardiologist to treat a skin infection.
(For example, the pre-eminent law firm in Franchise law is Zarco, Einhorn, & Brito in Miami, Florida. If you think copyright law is arcane, try franchise law. Finding a lawyer familiar with it is near impossible. There are a handful at best and except for Robert Zarco, et al, the other firms represent franchisors, not franchisees so the chances are good the others won't take the case due to conflict of interest.)
Apropos of this, there was an episode of the Sopranos where - after Carmella tells Tony she wants a divorce - Tony calls up every top divorce attorney in the vicinity to meet for a consultation, thereby making them ineligible, ethically, to represent Carmella.

Try hiring a law firm specializing in IP law in or near Seattle, Washington to work on anything that even mentions Microsoft technology.
I had a reason to do this some years ago - the idea being that firms heavily involved with software would possess the needed expertise. I stopped after calling about a half-dozen firms in the Seattle area. They wouldn't/couldn't touch anything to do with Microsoft technology, even if it was only prior art. (And that's all it was.)

I'm bringing this up simply to bolster the notion that "consult an attorney" is almost always a very unpractical and usually prohibitive proposition almost all the time that someone is advised to "consult an attorney".

But there is precious little law that's font-specific. And, as I said, it's peripheral to the main issues. The technological issues are not difficult to grasp. IMHO.
There IS, however much that has happened in case law over the last twelve years regarding software in general which would be equally binding "precedent".
There is nothing in the SSI decision that left anything "well settled".

William Berkson:

> You don't seem to get the concept of "precedent".

The Whyte judgment, dated 30 January 1998, took place 13 years ago.

During these past 13 years, innumerable outfits ignoring the Whyte "precedent" have been selling the SSI clone fonts, and Adobe during all these 13 years never cared about sueing any of these innumerable outfits for selling Veracity and other SSI clones.

So, if Adobe, now 13 years later, all of a sudden starts to sue these numerous outfits, e.g. the guys running the www.azfonts.net website, the judge, after looking at the Whyte "precedent", would ask, why Adobe during the past 13 years has ignored the Whyte "precedent" thus acting against own interests (German law: "venire contra factum proprium", US law: "estoppel by delay", etc.).

For instance, the ripoff DVD

www.sanskritweb.net/forgers/f31000i.pdf

documented by me in March 2007 contains 500 SSI (Southern Software) clone fonts.

During the past 4 years, Adobe had plenty of time to sue the sellers of this DVD with reference to the Whyte "precedent" judgment. But Adobe never dared to sue them.

Uli has a point here. There are several valid defenses to copyright infringement and equitable estoppel is one of them. Antitrust would be another. (And I would imagine *that* was considered a door best left unopened.)

And interestingly, there is also, in the US, something called Copyright Estoppel in which the copyright owner falsely represents portions of his or her work and then later asserts copyright in that material in order to sue a copyist. According to my reference material, this defense almost always succeeds where the copyright owner has made an express false representation.

That goes a long way in explaining why the first line in the Adobe Font Licensing FAQ is worded the way it is.

"Generally, font software is copyrightable."

Well, which font software do they mean? The fonts themselves as "font software"? Or Adobe Type Manager? Or what?
And then there's the weasel word, "Generally", implying that some font software might not be copyrightable. Well, which font software is that?

(I'm sorry, but stuff like this amuses me.)

Ya gotta love lawyers. The hardest thing to swallow about the legal system is that, as a system, it's arranged so that lawyers can earn a living. For some, a very handsome living indeed. Once you understand that, it all makes sense.

As Roy Cohn once said, "I don't care if the other side knows the law, as long as I know the judge."

Judge Whyte's "summary judgment" has a Wikipedia entry:

http://en.wikipedia.org/wiki/Adobe_Systems,_Inc._v._Southern_Software,_Inc.

There we read:

"Since the font editing programs extracted control points from Adobe's fonts, use of those programs constituted copying of literal expression. Thus, King also infringed on Adobe's copyright through intermediate copying into RAM."

Was this Wiki entry sponsored by Judge Ronald M. Whyte?

- According to Judge Whyte, whosoever uses Fontlab or Fontographer, which extract the control points from fonts, commits copyright infringement by illegal copying.

- According to Judge Whyte, whosoever uses the Windows or Mac operating system, which extract the control points from fonts, commits copyright infringement.

- According to Judge Whyte, whosoever uses Adobe Acrobat and other PDF tools, which extract the control points from fonts, commits copyright infringement.

- According to Judge Whyte, whosoever uses Coreldraw or other drawing programs, which extract the control points from fonts, commits copyright infringement.

- According to Judge Whyte, whosoever uses Internet Explorer or any other browser, which extract the control points from fonts to display this Typophile thread you are reading at this very moment, commits copyright infringement.

Believe Judge Whyte, and you'll believe anything.

13 years ago, Judge Whyte declared in his strange summary judgment:

"King also infringed when he loaded into his computer's random access memory copies of the Adobe program."

Now I prove step by step that the Whyte judgment is utter legal nonsense:

Step 1:

Load e.g. this PDF containing a Whyte judgment into your computer's memory:

www.greenisthenewred.com/blog/wp-content/Images/100712_aeta4_dismissed.pdf

Step 2:

Look at the blue running header:

"Case5:09-cr-00263-RMW Document177 Filed07/12/10 Page1 of 14"

This running header starts with the capital letter "C" of the word "Case".

This "C" is typeset in Helvetica by this "program" embedded into the PDF:

%ADOBeginSubsetFont: KQPJUO+Helvetica AddGlyphs
...
%%Copyright: Copyright 2011 Adobe System Incorporated. All rights reserved.
...
/C <1C60D8A8C9B6079F6D8209747A86332E73924F1B07F271169856A53C9157
71D7C530ADE68D8CA49F0A6B3478F9E8176949771F40D91B68E1A88C72CE81CC
0A91B3CFB642960E7EB2127A1637D49961A11F5DD40622F39379CDAB7E5B349D
F832E4955008C5E3208AB258B012A237635179513D820ACF76E0A17ED392C351
599687E8E7D0> |-

Step 3:

According to Judge Whyte, unless you have licensed the "program" of the letter "C" of Helvetica, you just committed the crime of copyright by loading the "program" of the letter "C" into your computer's random access memory.

This is utter legal nonsense.

According to Judge Whyte, millions of people, day by day, commit millions of crimes of copyright or millions of copyright infringements by downloading and viewing millions of PDF files from millions of Internet websites.

Was this Wiki entry sponsored by Judge Ronald M. Whyte?

All of the programs you mention UTILIZE the points, by way of the OS, to render the fonts; they do not EXTRACT the points and copy them over to a renamed font...apples and oranges.

oldnick:

> they do not EXTRACT the points and copy them

In the example of glyph "C" shown above two extractions happened:

1) Acrobat Distiller extracted the glyph "C" from the font file.

2) Acrobat Reader extracted the glyph "C" from the PDF file.

According to Judge Whyte, these are two copyright infringements.

If Acrobat Distiller extracts a glyph from a font file and inserts it into the PDF file, this two-step process is done by copying the glyph from the font file into the "computer's random access memory" (Whyte) and then by copying the glyph from the "computer's random access memory" into the PDF file. Whyte said: "King also infringed when he loaded into his computer's random access memory copies of the Adobe program" and declared this copying process a copyright infringement.

If you view the Whyte PDF file

www.greenisthenewred.com/blog/wp-content/Images/100712_aeta4_dismissed.pdf

with Acrobat Reader, the opposite takes place. Acrobat Reader copies the glyph of "C" into the "computer's random access memory" (Whyte), and then this glyph of "C" is rendered (I skip the intermediate steps). Whyte declared this copying process a copyright infringement too, because for Whyte any loading of copies of glyphs into the computer's random access memory is a copyright infringement for Judge Whyte.

@oldnick

Whyte's statements are clear. Uli is correct.
If you are incredulous, it's an indication of just how badly copyright law fits with digital tech.
You are probably just having a hard time believing that a 'copying' into RAM - which we all know is necessary to view anything on a computer - counts as a 'copying' under copyright law.

Rich

My EULA--and, I suspect, that of many others--allows embedding in PDF files, so no copyright laws are broken if the "extraction" is done with my permission. Apples and oranges again. And, while Whyte's choice of words was unfortunate, his intent was clear: copying another's copyrighted work VERBATIM and claiming it as your own is plagiarism, and subject to prosecution.

Richard Fink:

> Whyte's statements are clear. Uli is correct.

Thanks for telling the truth.

oldnick:

> My EULA--and, I suspect, that of many others--allows embedding in PDF files, so no copyright laws are broken if the "extraction" is done with my permission. Apples and oranges again.

You simply don't get it (or don't want to get it). If someone downloads one of the millions of PDF files from one of the millions of websites, this has nothing to do with your EULA, which is only a contract between you and a font buyer of yours.

According to Judge Whyte, if someone downloads a PDF file with a font embedded, he is committing copyright infringement. Judge Whyte was not clever enough to understand the consequences of his strange judgement. By his bizarre judgment, Judge Whyte makes millions of internet users and millions of PDF file users to copyright infringers. Therefore his judgment is legal nonsense.

If Judge Ronald M. Whyte views this PDF of his own judgement:

www.sanskritweb.net/temporary/Whyte-Judgment.pdf

he commits copyright infringement according to his judgment.

After viewing this PDF file, Judge Ronald Whyte will state:

"I, Judge Ronald M. Whyte, also infringed when I loaded into my computer's random access memory copies of the Adobe program."

Typophile members should not view this Whyte-Judgment.pdf.

his judgment is legal nonsense

So, file a legal brief in a U.S. court challenging his decision; until you do, you're merely venting your prejudices to no avail, except the continued annoyance of others.

oldnick:

>So, file a legal brief in a U.S. court challenging his decision

As a European, I could not do that. Besides, US judgments are irrelevant for Europe.

But even if I were an American and offered the VeracitySSK ripoff clone for sale, Adobe would not dare to sue me on account of the preposterous Whyte judgment.

Google for VeracitySSK, and you will see that dozens of outfits offer this clone, but none of them was ever sued by Adobe, since the Whyte judgment is legal nonsense.

There is also the court of professional opinion, which counts for something if you want to make a career rather than just a buck.
In this court, the larger your business, and the longer-established your reputation, the more you can get away with.

Considering that Judge Ronald M. Whyte only blamed Paul King for selling copies of Utopia as Veracity, but never blamed all the many other "criminal offenders" (§ 506 US Copyright Law) for selling copies of Utopia as Veracity, I wonder whether Judge Ronald M. Whyte heeds the constitutional principle "All men are created equal".

@all

I don't know what "legal nonsense" means, all I can know is how courts have ruled. And upon reflection, if I'm taking issue with someone who has the bona fides of Thomas Phinney, maybe I ought to back up what I say a little.

First, it has to be noted that all typefaces are unprotectable and in the public domain in the US. It doesn't matter if the typeface was created yesterday or 400 years ago. The title of this thread carries the implication that it could be otherwise - that one typeface could be "more" public domain than another. Hah! Ain't so.

In case law, there are four cases that appear to have special significance in light of the Adobe v SSI ruling:
L. Batlin And Son v Snyder decided by the US Court Of Appeals, Second Circuit in 1976.
Bridgeman Art Library v Corel Corp decided by a US District Court in 1999.
Meshworks v Toyota Motor Corp decided by the US Court Of Appeals, Tenth Circuit in 2008.
Lastly, there's the Supreme Court opinion from 1991, Feist v Rural.

When you read these opinions along with their cross-citations in total, it's hard see Whyte's decision in Adobe v SSI as anything other than an abberration.
(And BTW - in Whyte's decision there is a quotation from an Announcement in the Federal Registry by the US Copyright Office titled "Registrability Of Computer Programs That Generate Typefaces" that is completely misinterpreted. If you read the whole thing (2 pages) it's perfectly clear that the "computer programs" it refers to are what we would normally refer to as rasterizers, not TrueType or PostScript fonts. And it is carefully worded to make no claims as to the validity or level of copyright protection that may be obtained by registration, no matter how you interpret what kind of software it references.)
This is just one of several glaring errors in the SSI decision. IMHO.

My guess is that King was not a sympathetic defendant. And Whyte was happy to go along with a cherry-picking of the facts and precedent in order to find against him. It happens, and maybe King had it coming and the good guys won. Who knows.

Anyway, it's impossible to reconcile SSI with these other decisions.
Adobe lucked out, that's all. Speaking only for myself - I would have to have especially opaque blinders on not to consider fonts, all fonts - certainly, absolutely, the outlines - as public domain. Period.
Meshworks especially, being an appellate decision, has a far greater weight of authority than SSI. And it would, I imagine, be controlling in any "fonts as copyrightable software" case since the facts are nearly identical.

Before the advent of computers all typefaces were public domain. With the advent of computers, a claim was made that, as digital creations, typefaces could be copyrighted as software.
The courts, on the whole, say this ain't so. It's pretty clear, frankly.

And this might partially explain why Uli's dog hasn't barked, that is, why there's been no infringement suits in the US for thirteen years. (But legal costs and the overall effetiveness of licensing can explain it, too.)

Note that licensing is contract law and another matter entirely.

rich

Richard Fink:

You made a high-class contribution to this thread.

Many thanks. Having read the Meshworks judgment,
it hits the nail on the head. It's a must-read.

Maybe I don't get it, but I don't see how the Meshworks undermines Adobe vs SSI. The point was the Meshworks took points from a Toyota design, and so the software didn't, in the view of the court, represent anything new and copyrightable. That's not the case for Adobe's fonts.

Two things:

1) Richard, you are utterly incorrect in your interpretation of the Copyright Office decision. I think this part of the decision is fairly telling: "The creation of scalable font output programs to produce harmonious fonts consisting of hundreds of characters typically involves many decisions in drafting the instructions that drive the printer. The expression of these decisions is neither limited by the unprotectable shape of the characters nor functionally mandated. This expression, provided it meets the usual standards of authorship, is thus registrable as a computer program."

If you think this refers to rasterizer software rather than the font program itself, you're nearly alone in that belief. Most notably, the copyright office itself clearly disagrees with you, which is why they started accepting registrations of copyright on fonts-as-programs immediately after this. there have been thousands of such registrations.

In light of the above quote (which is admittedly more vague than one might like), I would argue Judge Whyte was simply clarifying the law by saying that the placement of points on bezier vector outlines was not functionally mandated and hence protected by copyright, and by declaring so as part of a summary judgment he said it was the case as a simple matter of law.

2) In considering other court decisions, you'll have to explain how and why you see them as contradictory to Adobe v SSI. For example, a phone directory and a font outline (possibly with hinting code) seem to me to be clearly not the same thing.

Cheers,

T

Thomas,

I would prefer just to leave it alone at this point. Summarizing the holdings from each case and connecting the dots is just too much work. And I'm under no obligation, thank heavens, to educate anybody on this issue except myself. It won't win me any points on anybody's scorecard. But I stand by my conclusion, though.

There's been too much FUD for too many years and that will continue. One self-interested person will say Tomato and another self-interested person will say Tomahto.
And without the concurrence of some leading legal people, it would have little to no impact, if even then.

That's why I just cited the cases so that anyone who wishes can make of them what they will. If I do write up a full analysis - and seek input from the legal community - you'll be the first to know. (I do intend to discuss it with my IP attorney, however.)

With regard to your interpretation of the Announcement in the Federal Registry my answer is this, to anybody who's interested and stumbles upon this thread:

1) Read the 1986 policy and the 1992 revision and come to your own conclusions.

I don't know enough about how the Copyright Office works to comment on why they might or might not issue a registration. The Announcement was about a procedural issue -about the need for an applicant to file a disclaimer, a procedure adopted with its previous policy decision in 1986 - which they discontinued. Other than that, I don't know anything other than what it says and it's hard to square what it says with the notion that they're talking about something akin to an OpenType font unless you cherry pick paragraphs. And there is the added complication that protectable material could certainly be included in an OpenType file. But not a typeface AS typeface.

See this scholarly essay here, for another take on this.

2) Being able to register a font is proof of nothing. As the court answered in Bridgewater v Corel. [Emphasis mine]

"plaintiff argues also that the fact that the Register of Copyright issued a certificate of registration for one of plaintiff's transparencies demonstrates that its photographs are copyrightable under U.S. law. The argument is misguided."

"No one disputes that most photographs are copyrightable. In consequence, the issuance of a certificate of registration for a photograph proves nothing. And while the certificate is prima facie evidence of the validity of the copyright, including the originality of the work, the presumption is not irrebuttable. Here, the facts pertinent to the issue of originality are undisputed. The Court has held as a matter of law, and reiterates, that plaintiff's works are not original under either British or United States law."

In other words, in Bridgewater, the court rendered the registration certificate fit for wrapping fish.

BTW - In fishing up the links I kept discovering more and more legal or legal-like stuff. This looked interesting by a lawyer named Blake Fry.
Why Typefaces Proliferate Without Copyright Protection

Anyway, bottom line, as the decision in Bridgewater says, registrability proves nothing.

And now I'm outta heah.

Rich

As regards Blake Fry's treatise, read this on page 439:

"Some argue (scilicet Devroye), however, that the code that describes a modern outlined computer font is not software at all, but a set of data points. If that’s accurate, protecting a computer font would be like protecting metal type because of the type-maker’s decisions about how to best hold his chisel when carving it."

I wish Thomas Phinney were listening to what mathematicians such as Luc Devroye have to say about this matter instead of listening to those who cheat dimwits by selling data points as computer programs.

Luc DeVroye promotes piracy and frequently misrepresents people and situations. I stopped paying attention to anything he wrote a long time ago. Moreover, Uli is now trying to change the discussion to what the status quo SHOULD be, but that's not the question at hand. If somebody thinks the copyright office is wrongheaded, that's fine, but that has no bearing on the question in the title of this thread.

Richard, perhaps you should note the sentence right before the one you emboldened. Read the FIRST sentence this time: "No one disputes that most photographs are copyrightable. In consequence, the issuance of a certificate of registration for a photograph proves nothing."

In other words, a certificate of registration for a *particular* font doesn't tell you anything about the legitimacy of that particular font registration. I could rip off the code of a digital font and rename it and register the copyright, and if it ever got contested, I'd lose. But the fact that the copyright office routinely issues copyrights for fonts as software IS telling, and your quote doesn't say otherwise.

I'm not claiming that typefaces are protected by copyright in the USA. But it seems reasonably clear that digital fonts are, as software. And by the way Blake Fry thinks they likely are as well (whether or not he thinks it reasonable that they be protected in that way). He has a whole section of that treatise entitled "Computer Fonts are (Probably) Protected as Software."

Cheers,

T

Them's libellous words, T-man!

1) Luc DeVroye promotes piracy
2) Thomas Phinney promotes fraud

Professor Luc Devroye claims that data points are not computer programs. This is not the same as promoting piracy.

Thomas Phinney claims that data points of glyphs are computer programs. This is not the same as promoting fraud.

BUT WATCH OUT:

1) If data points ARE computer programs, then anyone viewing this PDF

www.sanskritweb.net/forgers/veracity.pdf

would commit the crime of copyright infringement. Do you know, why?

2) If data points ARE NOT computer programs, then any font company licensing fonts as computer programs would commit the crime of fraud. Do you know, why?

Uli, if I remember correctly, all computer programs are, in machine language, sets of numbers. Are the numbers that indicate glyphs, spacing and kerning part of an instruction? Well, in conjunction with a rasterizer program, the numbers in the font direct the computer or printer on what to put on the screen or put on the page. The rasterizer by itself can't do anything. It needs the input to be operational. Hence one could argue that the "rasterizer + font information" is intended to be a "program" for producing letters. Or you could argue that since the lines that are obviously instructions, except for open type programming, are not in the font, the font is not a program.

So are the points part of a program or not? It seems to me you could argue either way, and the situation is rather ambiguous. The judge in Adobe vs SSI ruled "program." You want to make it obvious that it is one way or the other, when it is not. It is a borderline issue. And in such cases, judicial decisions create the law.

I'm not saying that this is the best way to deal with IP protection for fonts, but it is what we've got now in the US.

You keep raging about the situation being black-and-white, and everyone else being fools, but that's you oversimplifying the situation, and not situation itself, which is messy and ambiguous.

Libel has to be untrue. Luc DeVroye has provided links to pirated font downloads.

Uli is again clouding the issue, in two ways:

1) I was not representing my personal opinion, but commenting on what is generally accepted as being the state of US copyright law. I'm saying “this is how the law is treating it.” Trying to express that as my personal opinion and contrasting it with Luc's personal opinions as to what the law ought to be is irrelevant to the current discussion. I have not been engaging in a discussion of whether copyright “ought” to cover digital fonts and how it ought to do so. Just because I make a statement that a situation is XYZ does not mean that I agree with that situation, nor even if I agree with the effect of that situation that I agree with how that outcome was reached.

2) I do not claim that data points of glyphs are computer programs, nor has anybody else I cited. I claim that the US copyright office treats a digital outline font, in toto, as a computer program (while being unfortunately vague about which elements are protected). I also claim that a federal court in Adobe v SSI ruled (in a summary judgment, as a matter of law) that the placement of points in those programs in particular is an element of creative expression protected by copyright. I made no comments about my own opinions on what ought to be, and my opinions are irrelevant to the question of "are you allowed to...?"

My own opinions on "what should be" are that *typefaces* should be protected under copyright as creative works, but that US copyright terms are insanely long and should be shortened dramatically.

I do actually partly agree with one thing Uli is saying, although he's been rather oblique about it. Given that digital fonts are protected by copyright, if loading them into computer memory can constitute infringement, then there would seem to be a potential issue with many normal and accepted uses of fonts that font vendors are actually okay with, even involving third parties who have not been involved in the font licensing process. Opening a PDF loads its fonts into memory, and the person opening the PDF might not have any involvement in licensing that font.

Of course, there would seem to also be some very simple solutions to this. One would be to consider such actions to be fair use by the viewer when they were occurring simply for the purposes of viewing documents with embedded or linked fonts, and the viewer was not duplicating the font (which would not mean that setting up that situation by embedding or linking the font is automatically fair use). Another would be for the font vendors to clarify in their copyright statements what uses they permit for unlicensed people. This would be similar to copyright statements that grant certain exemptions beyond fair use. Uli seems to think this is a big deal. I think it's a minor issue, and if it ever came up in court in a more worrisome context, font licensors and copyright holders would deal with it more actively. They'd all go talk to their lawyers about the “right” way to do it, and one or more legally viable approaches would emerge. They might or might not be like the ones I outline here... again, I'm not a lawyer, nor are any of the other folks in this discussion.

Actually, the whole discussion has veered off of "are you allowed to...?" The OP was asking about the legality of selling a new digitization, and had no intention of using existing digital fonts as a basis for said digitization. The comment was made that a new digitization was fine as long as one didn't directly input existing digital fonts as the basis for the new version and we wandered off....

Anyway, back to my day job. Time to go look at some font metadata.

Cheers,

T

Luc doesn't promote piracy.
His web site is value-neutral, in an academic manner.
It includes links to a great many font sites, including pirate sites, because its reach is broad.

Search engines do a better job of promoting piracy.

William Berkson:

Since you address me directly, I will answer directly.

Since I have written several books about computer programming, I know what I am talking about. If someone claims that the data points of glyphs are computer programs, I cannot but laugh.

Look at this trivial BASIC two-liner:

1 DATA C,O,M,P,U,T,E,R
2 FOR I = 1 TO 8: READ LETTER: PRINT LETTER;: NEXT I

The data segment is line 1, and the code segment is line 2.

Data and code may be mixed, but they are and remain two completely different things.

For TTF fonts, I have proved irrefutably, that the sequence of numbers describing the x-y coordinates of the outlines of TTF glyphs are no code, but data only.

see www.sanskritweb.net/forgers/computerprogramm.pdf, pages 5-7

(This does not apply to TTF hints, which are code, but this is not the topic of this thread. For TTF hints as code, see above file computerprogramm.pdf, pages 8-10).

Theoretically, it would be possible to program a huge mixed code-and-data rasterizer including as code segment the rasterizer proper and as data segment the entire Adobe Font Folio library. Nevertheless, you could distinguish the code (= rasterizer proper) and the data (= fonts proper).

Since you are no computer programmer, let me explain it in this metaphorical way:

If you have a cup of coffee, you can distinguish between the cup (code) and the coffee (data). The cup remains the same, but the beverages may change (coffee, milk, water). Likewise, the rasterizer (code) of a given operating system remains the same, but the fonts (data) may change, i.e. the same rasterizer code may process different font data (e.g. Helvetica, Times, etc.)

If a judge shows this sequence of numbers

-227 0 0 227 160 160 228 0
0 -228 -153 234 333 0 0 -333 etc.

(see www.sanskritweb.net/forgers/computerprogramm.pdf, page 6)

to a mathematician and claims that this sequences of numbers is a computer program, the mathematician will ask the judge, whether he is sane in the brain.

Judge Whyte, who obviously thinks that anyone, e.g US Chief Justice John G. Roberts, is a computer programmer, if he draws e.g. an egg with a drawing program, will never understand that drawings are no computer programs, nor will he ever understand that sequences of numbers are no computer programs.

see www.sanskritweb.net/forgers/publicdomain.pdf, page 2

Since Adobe knows that the Whyte judgment is nonsense, Adobe never dared to sue anyone selling the Veracity alias Utopia font during the past decade.

Thomas Phinney:

> what the law ought to be is irrelevant to the current discussion.

The Whyte judgment ruled:

"King also infringed when he loaded into his computer's random access memory copies of the Adobe program. See Sega Enters. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). His fair use defense fails because his intermediate copying utilized unauthorized copies of the Adobe programs in an apparent attempt to avoid being a party to Adobe's license agreement."

This is what IS (according to Whyte), not what OUGHT to be (according to Whyte).

But this has the legal consequence (according to Whyte) that anyone viewing the PDF

www.sanskritweb.net/forgers/veracity.pdf

commits the crime of copyright infringement.

For instance, Thomas Phinney, who downloaded this PDF file committed the crime of copyright infringement, unless he is "a party to Adobe's license agreement" .

Thomas Phinney, who all of a sudden claims that one OUGHT to consider downloading of PDF files containing fonts as fair use, now deliberately disrespects the Whyte judgment ruling that this is NOT fair use and that anyone downloading PDF files with embedded fonts is a criminal, because, as Thomas Phinney correctly states, "Opening a PDF loads its fonts into memory, and the person opening the PDF might not have any involvement in licensing that font."

For instance, if you search in Google for "filetype:pdf"

www.google.com/search?&q=filetype%3Apdf

you get 168.000.000 hits (one hundred sixty eight millions).

This is the number of possible crimes committed by downloading PDF files.

Hence, the bizarre Whyte judgment makes the entire world to criminals.

If someone claims that the data points of glyphs are computer programs, I cannot but laugh.

And if someone were to claim that computer programs are data?

All software is data, including code.
That is why it is called software—the electronic information which is stored in, and used by, physical hardware.
The distinction between code and data is specious, in so far as digitized information is concerned.
It's all bytes, which is pure data.

…but some data are more equal than others

> All software is data, including code.

I suggest to try to read some books about this topic, e.g.

http://www-cs-faculty.stanford.edu/~knuth/taocp.html

Many students who tried to understand books on programming and e.g. who tried to understand the distinction between code and data soon discovered that they are not intelligent enough to talk about this difficult subject. Many students, who thought that they are clever enough to understand the Knuth books never managed to understand them. Ask Professor Luc Devroye, if you do not believe me.

Thomas Phinney:

> Opening a PDF loads its fonts into memory, and the person opening the PDF might not have any involvement in licensing that font. Of course, there would seem to also be some very simple solutions to this. One would be to consider such actions to be fair use by the viewer when they were occurring simply for the purposes of viewing documents with embedded or linked fonts, and the viewer was not duplicating the font (which would not mean that setting up that situation by embedding or linking the font is automatically fair use). Another would be for the font vendors to clarify in their copyright statements what uses they permit for unlicensed people.

All these proposals are legal rubbish. You cannot force font licensors to adopt fair use rules for all fonts. This could only be done by law, not by contract. But since this strange American Judge Ronald M. Whyte ruled that it is forbidden by fair use to copy unlicensed fonts into computer memory, everyone downloading PDF files with embedded fonts commits the crime of copyright infringement, unless he licensed these fonts before downloading the PDF files. Therefore, those who offer PDF files for download and who think that the bizarre judgment by the strange Judge Ronald M. Whyte is no legal rubbish, must provide the download link with the following proviso (example):

Warning: Do not download the following PDF, unless you have acquired a licence to the Utopia font. If you download this PDF without a licence to the Utopia font, you will commit the crime of copyright infringement according to the judgment by Judge Ronald M. Whyte:

http://www.sanskritweb.net/forgers/veracity.pdf

Nick Shinn:

> "All software is data, including code."

Professor Luc Devroye says:

- "Programs are data", but
- "Data are not programs".

I agree to the latter.

I cannot agree to the former from the point of view of European copyright laws.

For example, in Europe, programs are protected for a period of 70 years post mortem auctoris, whereas databases are protected for a period of 15 years only:

"In the case of a database ... the term of protection by that right shall expire fifteen years from the first of January of the year following the date when the database was first made available to the public."

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:E...

If fonts were databases, the period of protection would be even shorter than the period of protection for the design of typefaces, which is 25 years:

www.sanskritweb.net/forgers/publicdomain.pdf

"But since this strange American Judge Ronald M. Whyte ruled that it is forbidden by fair use to copy unlicensed fonts into computer memory"

He said no such thing.

The law:

"Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

It actually seems improbable that copying a font into memory *in general* could be construed as fair use. Presumably it would depend on the purpose of said copying. That was probably a goofy thought on my part. But in any case, the judge did not say that copying an unlicensed front into computer memory is "forbidden by fair use." That's part of your ongoing campaign to put words in his mouth.

> But in any case, the judge did not say that copying an unlicensed front into computer memory is "forbidden by fair use." That's part of your ongoing campaign to put words in his mouth.

Here is his mouth again:

"King also infringed when he loaded into his computer's random access memory copies of the Adobe program. See Sega Enters. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). His fair use defense fails because his intermediate copying utilized unauthorized copies of the Adobe programs in an apparent attempt to avoid being a party to Adobe's license agreement." (www.sanskritweb.net/forgers/veracity.pdf, page 5, section 5)

You should accept your defeat. And you should admit that Adobe never dared to sue anyone during the past 13 years for selling Veracity.

That's exactly my point: his fair use defense failed for specific reasons, not because fair use could *never* apply to loading fonts into RAM.

Aside from which, your “never dared” might be somebody else’s “never bothered.”

> Adobe "never dared" to sue anyone during the past 13 years

> Your "never dared" might be somebody else’s "never bothered"

For those companies which offer for free download unlicensed copies of Adobe fonts, it does not matter, whether Adobe "never dared" or "never bothered" to sue them.

Besides torrent, peer-to-peer and similar websites, it is interesting to note that there are renowned advertising agencies offering the entire FontFolio collection to their customers for free download. These promotion companies do not care to make their download sites accessible via password only, so that Google, Yahoo etc. index the Adobe fonts freely downloadable from these websites. Who searches for Adobe font file names, will find these advertising agency websites offering thousands of Adobe FontFolio fonts for free download.

What is the opinion of Typophile readers?

- Adobe "never dared" to sue these advertising companies ???
- Adobe "never bothered" to sue these advertising companies ???

How Paul King forged Utopia is shown pictorially here:

http://www.sanskritweb.net/forgers/veracity2.pdf

Despite my recurring nightmare about receiving one of Thomas Phinney's toes in a zip lock bag via Federal Express. (Careful with those metaphors, Thomas!) I've come back.

Uli said, regarding fair use,

>This could only be done by law, not by contract.

Uh, I wouldn't be so sure about that. The courts in America, at least, seem to have never seen a contract provision they don't like. Product liability laws are the obvious example. EULAs allow sofware providers to weasel out of any responsibility for how their software might misbehave. Consumers use at their own risk - by contract, not statute.

> Uh, I wouldn't be so sure about that. The courts in America, at least, seem to have never seen a contract provision they don't like.

I was thinking of third-party-provisions. At least here in Europe, two parties A and B cannot stipulate a contract to the detriment of a third party C. For instance, if a third party C downloads a PDF with a font embedded which is copied into the RAM of his computer, this is illegal according to Judge Whyte, but the parties A and B cannot make a contract which allows or forbids the third person C to download the PDF, unless the third party also signs the contract.

@Uli: I cannot agree to the former [all software is data, including code] from the point of view of European copyright laws.

My observation was philosophical and etymological, not legal.
It is also the opinion expressed by Luc Devroye ("Programs are data", which you quoted), so please don't patronize me as "not intelligent enough to speak about the subject"!

I have no desire to read Knuth's The Art of Computer Programming, which I suspect contains precious little art.
My literary allusion ("…but some data are more equal than others") was to Animal Farm, the inference being that this is a political issue as much as a legal one.

It is the role of technological progress to reduce cultural artefacts to "content", minimizing their worth, and this is the foundation of the value of new media devices (both hard and soft). But typefaces are not just an old analog form automatically reduced to data (with programs being a more privileged species of code, to the vested interest of technologists). They are written directly into digital media, and even revivals of metal typefaces are necessarily unique interpretations—as would be the case with the 24 pt Erbar font that is the subject of this thread; the specimen has sufficient traces of process that will require "cleaning up", or not, as the case may be, that any digitization would have some measure of originality.

Nick Shinn:

> My observation was philosophical and etymological, not legal. ... so please don't patronize me

I understand. Sorry.

**************************************************

Indicentally:

During the past few days, numerous people downloaded the file veracity.pdf.

According to Judge Whyte, they committed the crime of copyright infringement.

Because according to Judge Ronald M. Whyte, the downloader of the file veracity.pdf
"infringed when he loaded into his computer's random access memory copies of the Adobe program (scilicet Veracity alias Utopia). His fair use defense fails because his intermediate copying utilized unauthorized copies of the Adobe program in an apparent attempt to avoid being a party to Adobe's license agreement."
(www.sanskritweb.net/forgers/veracity.pdf, page 5, section 5)

For Judge Ronald M. Whyte, it will be easy to identify the suspects who downloaded veracity.pdf thus loading copies of the font Veracity alias Utopia into his computer's random access memory.

Therefore I say to Judge Ronald M. Whyte:

"Round up the usual suspects." (Casablanca)

Uli - it no longer matters what Judge Whyte thought in 1998. But he was not alone in considering a RAM copy, a copy under the law.

It is now not infringement to view the PDF under the Title 17 statute in the US Copyright law. Loading a "program" into RAM as a normal part of utilization is not infringement.
According the following quotation from Cornell University, this was added to the law in 2000.
Limitations On Exclusive Rights: Computer Programs

I wish Uli would stop lying. I also wish more people would call him on it, but I expect most have realized it is pointless to do so.

Richard Fink:

> Uli - it no longer matters what Judge Whyte thought in 1998. But he was not alone in considering a RAM copy, a copy under the law. It is now not infringement to view the PDF under the Title 17 statute in the US Copyright law. Loading a "program" into RAM as a normal part of utilization is not infringement. According the following quotation from Cornell University, this was added to the law in 2000.

I understand that you want to help Thomas Phinney, who behaves like a cornered rabbit, but referring to § 117 does not solve the problems of the Whyte judgment.

§ 117 of US Copyright Law is old hat added before the Whyte judgment and enacted December 12, 1980. See here page 1 and page 14:

www.history.nih.gov/research/downloads/PL96-517.pdf

§ 117 states that "Making of additional copy ... is not an infringement for the owner of a copy of a computer program".

It is obvious that the downloader of a copy of a computer program is not the owner of the copy of the computer program, nor does the downloader become the owner of a copy by copying the copy into the random access memory of his computer.

@Uli - Law or no law, the common concensus is that once you buy a copy of a commercial program, you are the de-facto owner of that copy, only without the rights to copy except as needed for the normal operation of the program. Judge Whyte may have made a precedent, but he does not make law. Only institutions like Congress, Parliament and the Bundestag get to do that. Nope, Ministries/Departments make regulations and must base them on existing law.

Actually Uli, you might be right about the date, it seems.
Cornell Univ's citation might be wrong or misleading.
Will check.

Rich

This is the first time I have chimed into this debate. Being in the law field myself, I always get concerned when I see other people quoting the law. I wish I knew about IP law, but regrettably I've never had the need to look into it.

I have two questions:
1. Is anyone in this thread a lawyer?
2. Has anyone consulted a lawyer on this topic? Despite their price, they do know what they're on about.

Lawyer? Not me. Just insane(ly bored). Where's the porridge?

CaleD:

1) Not me. Nor is Uli, nor as far as I know anyone else on the thread.

2) Yes, I have had extensive legal counsel on the topic, many hours of discussion, and at one point vetting an article I wrote summarizing the IP status of fonts. All this mostly focused on US legal status, but with moderate attention to the areas that differ in other countries.

Of course anybody who is concerned about the potential of getting sued (or charged with criminal copyright infringement) would be well served doing something other than reading a bunch of non-lawyers debating the topic in a public forum. If nothing else, perhaps this thread shows what the key legal issues are that everything turns on.

Cheers,

T

I have got to read all this later on…

Anyway, I still don’t understand why typeface designs (not the digital versions, which are technical instances, as software) are so problematic to be considered per se.
The issue of "copyright" does not coincide with actual protection, right? It seems to me it just involves the problem of making a copy, a question which has become quite a topic with the "immateriality" of digital data sets.