I don't think protecting the IP affects a font designer's income significantly. While I'm, sure I lose some sales to piracy I also gain a lot of sales from piracy. If IP protection had an effect on whether or not a font designer was able to commit to font design as a full-time job, that would have some impact on font design . . . but I think it's a stretch of the imagination. Overprotecting IP has a negative impact on a font designer's relationship with their customers. Is a font designer going to quit developing a font because people are copying their other fonts? You'd have to be a very sensitive font designer. Nah. If font designs themselves were protected it would halt innovation. I'd certainly get into another business.

Although digital font products (as they are referred to in license agreements) are frequently compared with other digital commodities such as recorded music, photographs, films and videos, there is an important distinction.

Those are end products, entertainment consumed by the general public.

It may seem that fonts are similar, to the extent that they are most readily conceived of as collections of images with cultural properties, but the big difference is that as an economic product they are primarily professional tools which function economically in the business-to-business market, software purchased by professional designers to help them make, and add value to, their own products and services.

Business people are less inclined to piracy than consumers, as cheating is not a best practice.

I can't speak for other foundries or the font industry in general, as figures are hard to come by, but Shinntype, founded in 1998, is doing better than ever. I have in the past taken issue with software bundling as an unfair business practice, and suspect that it has suppressed the potential mass market for fonts, but that is an issue of size rather than kind, and, as Ray says, it's debatable whether "free" stimulates or restricts the market. "Free", as argued by Wire's Chris Anderson, is a unique quality of the digital economy, in which the rules and behavior are somewhat different than for physical goods.

It's impossible for law and regulation to keep up with the technology marketplace—things have, to a large extent, sorted themselves out, as ethics emerge via informal social contracts as much as by formal EULAs. The legal status of typefaces, protected more as software than as design shapes, is hard to grasp, not quite logical, and open to negotiation—but that in itself opens up economic space for license format proliferation. Recently, the font industry has managed to sort out the webfont issue, a thorny roadblock for ten years.

Business people are less inclined to piracy than consumers, as cheating is not a best practice.

Are big design studios and in-house graphics departments uniformly good about this? How much of an education gap is there? (i.e., how prevalent is the knowledge that licensing issues with fonts ought to be policed as rigorously as those involving music?)

(I'm not sure how someone could measure this.)

"If we take it as a given that type design enjoys comparatively little protection in the US (or that these protections are rarely invoked)...."

I know that wasn't your question, but I don't think it is at all reasonable to take that as a given, and there is a big difference between something being legal and illegal, even if the "protections are rarely invoked."

Or to put it another way, if there was NO legal protection for digital font files, if font file sharing were legal, that would be a huge blow the type industry. The font retail market as we know it today would pretty much vanish overnight. The fact that typeface design is incarnated in OpenType and TrueType fonts, which are then treated as software for IP purposes, is a pretty big deal, and in terms of understanding how the field of type design is doing.

It's as if the visuals of a film were not protected, but all forms films are distributed in were protected, and it was legal to do a recording of the picture you saw in the theatre. The film industry would not like this, but as long as the product they actually distribute was still legally protected (like fonts are), the fact that some abstract concept of the film was not protected would not have a major economic impact. Same principle explains the health of the type industry.

Of course, retail font sales aren't everything... but for many, perhaps most type designers they are a vital portion of their income (or their employers' income).

Cheers,

T

@Ehague: Is this a personal, professional or academic project?

Well said, Nick.

@Christopher: Academic, for law school

I don't think it is at all reasonable to take that as a given.

I agree that the "low-IP" label in the world of digital type is debatable (that is going to be another thread), but even under the current protection regime, you still see file sharing of protected .otfs, etc., but you don't see all that many lawsuits. (Correct me if I'm wrong on either count.)

If film suddenly were suddenly protected under a scheme similar to that which fonts enjoy, I would expect that any violations—even small ones—of what meager protections were available would be pursued by the rights holders. That's how film rights holder behave currently, when they have even broader IP protection. Why are there so few suits between font rights holders and non-licensing entities?

I guess this hinges, though, on an assumption that there is a systemic, difficult-to-quantify culture of font piracy.

> I guess this hinges, though, on an assumption that there is a systemic, difficult-to-quantify culture of font piracy.

File sharing of fonts seems to be about as rampant as file sharing of music and other protected formats. There may be fewer lawsuits (though there are certainly some as NBC and others can attest).

> Why are there so few suits between font rights holders and non-licensing entities?

I think there are a lot of reasons, and some of them are subject to debate. I think the one that most of us agree on is that the entire western-language type industry is on the order of a $100M/year business (just as a ballpark). There just isn't as much money to protect in fonts as there is in music, film or television.

>Type Design: Flourishing or Floundering?

Both, depending on where you look. o

Why are there so few suits between font rights holders and non-licensing entities?

I consider font piracy a long-dead horse unresponsive to further beatings. So I will only say that your observation is true of many media industries, not just fonts.

Rationally speaking, if you're a rights holder, you would only go to court against a pirate if:

1) You can identify a pirate, serve them with a lawsuit, and bring them into the jurisdiction of a convenient court. (Not necessarily easy or cheap.)

2) The pirate can pay the damages OR the lawsuit will have a deterrent effect on others considering piracy.

3) Most important: the gain from #2 outweighs the value of just finding new customers who are willing to pay for your product. (I.e., the expected return from spending your money on litigation > spending the same money on marketing & sales.)

Therefore, one might predict that the rights holders most likely to sue pirates are the ones who believe they've already reached the boundaries of their market, so they have to change the habits of people inside the market. For instance, the RIAA's famous (and arguably pyrrhic) campaign of suing individuals who had copied music.

But in most industries — especially small ones — it makes better sense to put your capital toward market growth, not ligitation. Indeed, as I sit here enjoying my Spotify account — a new arrival in the US, which essentially duplicates the experience of Napster in 2000 — I think maybe even the record companies have learned this lesson, however slowly.

I think it is important to look at different kinds of IP violation independently, and not try to lump them altogether. Unlicensed file sharing, unlicensed use, and copying of designs are different kinds of violations, and have different impacts in individual cases. I don't think it is possible to make any kind of generalisation about overall impact across the font business. As David says, it depends where you look, and also what you look at.

You can identify a pirate, serve them with a lawsuit . . . . Not necessarily easy or cheap.

I would also think there would also be especially tricky discovery/evidentiary issues to worry about. It would be easy enough to prove that a TV commercial used a Lady Gaga song without licensing it—or even that it used a cover of the song's underlying composition without licensing it—but to prove that the font you see rendered in motion graphics wasn't properly licensed must be a hassle of another magnitude. (In that situation, the missing copyright protection for typeface design would be analogous to the composition rights.)

My thinking is that the design world—or however you want to lasso in the main consumer base of digital fonts—generally suffer from a) a lack of awareness about the legal dimensions of font use, b) a justifiable lack of fear about the consequences of playing fast and loose with a font EULA, and, to that point, c) a certain degree of comfort in industry norms.

Trying to sue every TV network or movie studio or magazine that uses a font of dubious licensing pedigree would never result in a paradigm of font licensing as assiduously respected as those surrounding image or music licensing. More litigation would only chill legitimate type consumption.

I think it important we be mindful of our potential for a bit of response bias. And I’m not sure if it’s come up, but a while ago I stumbled across a Typotheque article: “We don’t need new fonts…” which may be of interest to you Ehague. At the same time I started a Typophile thread: “We dont’t need more fonts…” which might have some other relevant commentary. I have poor memory and did not participate in the dialogue. Just putting it out there for the group.

@ehague

There is quite a bit of literature already - by lawyers and law sudents - on this topic.

There are presently a couple of nuisance suits (characterization mine) being brought by font producers P22 and Typotheque represented by a New York copyright attorney named Frank Martinez. You can give me your opinion of the complaints as filed with the court - I've got them.

Are you aware of these? Feel free to contact me on my blog.

In fact, I'm planning on proposing "Fonts As Copyrightable Software: Myth or Reality" as either a stand-alone talk or a debate at either next year's SOTA or ATYPI conference.

Richard Fink
http://readableweb.com

I'm not sure that protection for type designs is the only reason why type design may be "floundering".

The widespread availability of font design tools is leading to many people designing typefaces that aren't that good, by which professional products are obscured.

And the new market of computer typesetting means that the number of digital typefoundries run by professional type designers is much larger as well. It is not like the "old days", where there was ATF, Monotype, Linotype, and Ludlow - and one took one's pick from what they offered.

From those days, when new players entered the field - IBM with its Selectric Composer, Compugraphic with its phototypesetting machines, and so on - there was no choice but to copy and imitate the established popular styles. If there had been good protection for type designs, then there would have been no competition in typesetting machines.

Now, it is different. The owners of the typefaces sell fonts in a standard format - TrueType, Adobe Type 1, OpenType - that fits everything. Strong protection for type designs will only protect the type designs - they won't give, for example, a monopoly of the computer industry to Monotype, because only Monotype desktop computers will allow you to print using Times Roman, since Times Roman is only available in the XYZ digital font format that can only be used by the Monotype operating system.

And, in fact, even where type designs are strongly protected, the protection has a limited term - so Times Roman, for example, can be freely imitated - and there is more than one open-source imitation of it available.

I have said this before, but what I see as the problem is that professional type designers really have one serious market, and that a narrow one - magazine art directors who want a distinctive unique look for their publications. Almost everyone else who uses type has an embarrasment of choice - all the "old standby" typefaces are easily available, and only a tiny fraction of type users have any motive to use, say, Stone Sans instead of Helvetica.

So today's type designers are not getting rich. Far too much competition, far too small a market. Type design is largely only a labor of creative love - and even if great things are being achieved, they languish in obscurity.

I think this is worrisome even beyond the urgency of the economic issue to type designers. Our age seems likely to leave no typographic legacy behind, no titans to rank beside Benton, Dwiggins, Goudy or Zapf.

Oh, wait. Our age may be remembered for Comic Sans and Papyrus.

John, which part of the type industry do you work in?
I suspect you are an amateur, because from my perspective as a professional you are talking complete nonsense.

You're looking through the wrong end of the microscope. I think that's your own, made-up font history timeline.

Here's one part I understood:

I have said this before, but what I see as the problem is that professional type designers really have one serious market, and that a narrow one - magazine art directors who want a distinctive unique look for their publications. Almost everyone else who uses type has an embarrassment of choice - all the "old standby" typefaces are easily available, and only a tiny fraction of type users have any motive to use, say, Stone Sans instead of Helvetica.

The reason you think magazine art directors are the only serious market is because that's probably where you notice new fonts. Almost all my sales are small design agencies on small projects. There is a need for visual novelty outside of the magazine business and it's being served every day. I guarantee every one of those agencies that buys my fonts already has old stand-by fonts. Walk away from the magazine rack, go to the grocery store and observe: lots of new fonts. Almost everywhere you look, you can see new fonts.

Myfonts bestsellers, April 17, 2004:

1. Helvetica
2. Zapfino
3. Univers
4. Frutiger
5. P22 Cezanne
6. Neue Helvetica
7. Trade Gothic
8. Bank Gothic
9. Futura
10. Optima
11. Gill Sans
12. Eurostile
&c., &c.

With the exception of Zapfino and Cezanne, those types were designed 30-75 years earlier, and published by large corporations not owned by type designers. Compare with today, when almost all of the best-selling fonts are new designs from foundries owned by type designers. Type design is flourishing, historically speaking—but it's impossible to know how different the situation would have been with "better protection". It is what it is.

Nick, part of the reason the picture at MyFonts has changed is that Linotype/Monotype no longer sell there. I'm sure those typefaces are just as popular as ever (minus however many sales they may have lost after leaving MyFonts).

True, but IIRC the picture had changed substantially before Monotype pulled out.

Unfortunately I don't have any data to support that, just a screen grab of MyFonts best sellers from 2004.

Look at the CD racks, too. Not everything there is lettering.
Same with the toy store. The junk mail. The ads. The library... if it hasn't been torn down to make room for a mall or an office block.

Some ad agencies' websites have font sample pages.

@Nick Shinn:
John, which part of the type industry do you work in?
I suspect you are an amateur, because from my perspective as a professional you are talking complete nonsense.

Yes, you are correct in at least the first part of this. And if, indeed, type design is currently flourishing, despite the flourishing not being visible from the outside to an interested layperson like myself, that is good.

And, in fact, I suppose that I should not be surprised - the enormous amount of type design activity by professional type designers, not just the people who dump stuff in Dafont and such places, presumably would not exist without some market.

It does seem from my limited perspective that Comic Sans and Papyrus on the one hand - and Lucida and Stone Sans on the other - are recent typefaces that have a significant presence, while so much else of merit - Kingfisher, Williams Caslon, Miller - is totally invisible and under the radar. Which puts it in danger of being totally forgotten in a few years' time.

See also: RIAA, MPAA, Software Industry

John, Miller is one of the faces that has been "acquired" by MoMA.
As the concept of such acquisitions is a novel curatorial event in its own right, I would venture that means the 23 "acquired" faces will have some historic tenacity.

In answer to the question, I shall make a font of flounders with flourishes.

cheers.

Thanks everyone for the input. I've gone ahead and submitted my comment proposal. I'll be back with more substantive questions and help sourcing various propositions down the road. (Did you know there are law review articles out there that just directly cite typophile threads?)

Eric

“Did you know there are law review articles out there that just directly cite typophile threads?”

References?

see, e.g., Blake Fry, Why Typefaces Proliferate Without Copyright Protection, 8 J. on Telecomm. & High Tech. L. 425, 436 n.68 (2010); Jacqueline D Lipton, To © or Not to ©? Copyright and Innovation in the Digital Typeface Industry, 43 U.C. Davis L. Rev. 143, 169 n.121 (2009).

"Comic Sans and Papyrus on the one hand - and Lucida and Stone Sans on the other - are recent typefaces"

What on earth is your definition of "recent"? I'm not sure which of the Lucida typefaces you'd be referring to, but you're talking typefaces that are all what, 15-28 years old?

Richard: "In fact, I'm planning on proposing "Fonts As Copyrightable Software: Myth or Reality" as either a stand-alone talk or a debate at either next year's SOTA or ATYPI conference."

I assume you're referring to the state of affairs in the USA? If you want to go global, it gets more complicated, and varies between different countries.

But, in the USA, AFAIK there's no "there" there, it's reality, and only cranks suggest otherwise. The combination of the copyright office's rulings on the topic and the summary judgment in Adobe vs SSI makes the current state of affairs pretty darn clear. Of course, it could be appealed further up the ladder, to the Supreme Court, but it seems as settled as anything that has not been the subject of a Supreme Court ruling can be.

Drop the "Myth or Reality" subtitle, and if you (or somebody) put together a panel discussion with sufficiently knowledgeable font lawyers on the panel to actually tell everyone what the state of affairs is, it could be more interesting. If there was a panel proposal with Frank Martinez, Paul Stack and Donna Kolnes up there, that would be very cool.

Cheers,

T

>If there was a panel proposal with Frank Martinez, Paul Stack and Donna Kolnes up there, that would be very cool.

Lol, but really, the direction print and web type have taken (together), and the standards vacuum fonts and the publishing industry got suckered into, the business has gone near totally to a "service", as predicted.

Don'tcha know!? :)

The future I saw, after reading The Diamond Age in 1996, involved neural/optical implants and micropayments, so that every time a person looked at a glyph, the glyphs' owner would receive a payment. But not immediately of course, the banks would hang onto it for a few days, sameold vigorish, ennit.

>If there was a panel proposal with Frank Martinez, Paul Stack and Donna Kolnes up there, that would be very cool.

Hey, bring 'em on. But just me against them doesn't seem fair - to them, that is.

>The combination of the copyright office's rulings on the topic and the summary judgment in Adobe vs SSI makes the current state of affairs pretty darn clear.

Sorry, nope. Misinformation. Let's have a panel!

Let's have a panel!

Alternatively, you could select a pile of Adobe fonts, and produce and distribute derivative works in a manner that you earnestly believe to be permitted under US law. I'm not encouraging you to do this, of course, and accept no liability for the outcome. But at least Mr King of SSi was willing to put his money where his mouth was.

Sorry, Richard, but I believe you're deeply mistaken. Still, I think we should all be much more interested in seeing the lawyers discuss what *they* believe the state of the law is than to hear your (or my) opinions.

Of course, I am pretty sure that I know what they will say, based on previous experience... that's where my opinions came from. Well, at least Donna and Frank, dunno for sure what Paul would say.

For those who don't know who these folks are:

- Donna Kolnes is a lawyer at Adobe who has been their legal counsel on font matters for at least 15 years.

- Paul Stack is outside legal counsel for Monotype Imaging, or at least was last time I heard about it. http://www.stacklaw.com/

- Frank Martinez is a lawyer who has many smaller/independent foundries as clients and whose entire business is built around interaction between design and the law. He is a former graphic designer and former US patent examiner, so he brings unique experience and perspective to his clients. He has been the counsel in a number of recent high-profile lawsuits brought by foundries against unlicensed use of their fonts by prominent customers (Font Bureau vs NBC, P22 vs NBC Universal for Wizarding World of Harry Potter, Typotheque vs RaiseDigital for Rick Santorum's presidential bid website). http://www.martinezgroup.com/aboutus.html

Cheers,

T

Sorry, nope. Misinformation. Let's have a panel!

Richard, if you are going to use Typophile as a platform for passing yourself as some sort of web typography expert, you should at least stick to the subjects where you are remotely credible. Every time you get into the legal discussions it becomes obvious that you’re just a crank with no marketing budget.

The Adobe v. SSI decision failed to take any account of the "merger doctrine" under US copyright law, which I think is a serious flaw in its reasoning. (I don't know if that's what Richard was getting at.)

Part of what makes copyright law interesting (and at times, infuriating) is that very few issues have black & white answers. Supreme Court justices can — and do — disagree on these topics.

I don't expect, however, that a panel of font-industry attorneys would publicly take a position against the copyrightability of font software. If you want a contrarian view, you'd need someone without a stake in the outcome.

Matthew: The Adobe v. SSI decision failed to take any account of the "merger doctrine" under US copyright law

On the contrary, it seemed to me that SSi was directly arguing merger doctrine: that the placement of points was determinative and hence not protectable by copyright. Paul King was certainly arguing that against me and Thomas and others on comp.fonts at the time. His whole (copyright) case rested on this, and he settled when Judge White's summary judgement very clearly stated that the position of points was not determinative and was protectable by copyright.

The Adobe v. SSI decision failed to take any account of the "merger doctrine" under US copyright law

What would that argument look like? I agree with John that there's already some flavor of that argument in SSI, but if I'm interpreting this right, it seems pretty weak. Digitizing a lowercase sans l is often a fairly uncreative undertaking, but describing a particular curve with bezier points strikes me as one of the main creative tasks a digital type founder can perform—or it's at least one of the skills that really separates the amateurs from the auteurs.

What would that argument look like?

There are good summaries of "that argument" available with gentle Googling.

Under the facts, I think the Adobe v. SSI case came out the right way.

@dunwich
"Richard, if you are going to use Typophile as a platform for passing yourself as some sort of web typography expert, you should at least stick to the subjects where you are remotely credible."

It's true, I'm incredible. Or so my girlfriends have always told me. This is not news. Incidentally, the following comment I've written is rated "For Mature Audiences" and there are parts during which you might have to excuse yourself.

@butterick
Even if IP law is not your thing, you being an attorney and therefore (I should hope) more aware than most about how the legal system works - I'd like to point out that what you've written - especially regarding biases from hired guns with vested interests in telling a client what they want to hear - should be taken quite seriously. An adversarial approach is the one to take. And if an attorney like William Patry or Jessica Litman or James Boyle could be enticed onto a panel, wow, that would be something.

@all

I'm glad that Thomas Phinney - who I like and respect and who has a high degree of intellectual integrity - has made it clear that for the most part, his views are a pass-along of stuff he's been told by lawyers working for Adobe and a lawyer for litigants like Font Bureau. I don't know if it was his intention or not, but this does get me off a hook. (Thomas loves type and the type community and should he feel those things being threatened and should his considerable powers of reason and analysis fail him as a result, I would understand anyway. We're all suckers for love.)

Which brings me to the question:

Which would you prefer, arranging your business affairs based on a realistic and unbiased assessment of the protectability of fonts under copyright law today - in light of thirteen or so years of new case law and the proliferation of fonts into the six figures and a move into the mainstream of people's consciousness - or stay stuck in 1997, all comfy and self-deceptive and base your decisions on what amounts to corporate propaganda left over from a time when a few big companies thought they could gain competitive advantage and an enduring revenue stream by, in effect, securing access to the use of human language itself by claiming ownership of digitized versions of the alphabet.
(Of course I don't actually think those involved thought of it that way. But it really does boil down to that. And it really was that grandiose an ambition. It makes you wonder how anybody could ever think that such a thing would or could fly over the long term. But I would have reached for that brass ring, too.)
And if any company should be looking and listening and analyzing, it's Extensis. Of course that does not preclude continuing to promote the old notions - but certainly a company with as vested an interest in fonts as licensed products as Extensis should be extra careful to keep an open mind and an ear to the ground. It might seem to make sense to crow - as a marketing ploy - about these nuisance suits like Font Bureau v NBC but they are actually a bad thing for you, not a good one. All it would take is one NBC or a Universal to say, "F-ck you, we're not settling" and that would be that. What's being played is a game of legal brinksmanship and it won't be the litigant or the lawyer in that one particular case who "loses" - it will be the entire type community at large.
(And making a point to mention these cases at every turn in the interest of justifying some of the company's products existence with FUD is a sign of tremendous weakness, not strength.)

[What follows next is an example from business history. Dunwich, perhaps now you should go to your room.]

Anybody remember a company named MCI? Here it is from Wikipedia:

MCI Communications Corp. was an American telecommunications company that was instrumental in legal and regulatory changes that led to the breakup of the AT&T monopoly of American telephony and ushered in the competitive long-distance telephone industry.

MCI was unusual in that the source of it's entrepreneurial opportunity was revealed through legal analysis. Management at MCI had come to the conclusion that AT&T, an American institution, politically untouchable, was clearly in violation of Anti-Trust laws and that a serious legal challenge would, at a minimum, end ATT&T's monopoly on long-distance telephone service in America, thereby paving the way for MCI - which had positioned itself to cater to the long-distance market.
The "smart money" thought MCI was crazy. Going after AT&T was like going after Mom and Apple Pie. Break up the Bell System? Yeah, tell me another one. But top management at MCI and their attorneys couldn't see it any other way. And they were proved absolutely correct.

The point here is that the legal landscape can change drastically and quickly.
And the big question is: well, if it does, what will be its effects on my business? What steps might I need to take?

I'm not going to argue here whether or not fonts are or are not protected under copyright. (I will elsewhere, though.)
However it's only fair to tell you this: harping on Judge Whyte's comments in Adobe v Southern as if it is in any way significant and/or definitive is a disservice.
It's not a published opinion and it has absolutely no force as precedent. An attorney could not even cite it in a brief. It is not binding on any court, even in the same district.
It's just a news item: "Judge Whyte Said Blah, Blah, Blah During Adobe v Southern Trial".
But, it was seized and publicized with fervor - and it still is - in an effort to prop up the notion that even though typefaces have no copyright protection at all, fonts are "software" and that somehow, by waving the magic wand of digitization, the typeface now enjoys protection.

In other words, it's irrelevant. Unless you want to take advantage of people's lack of knowledge of copyright law.
Presenting it as legal precedent is bogus and frankly, once I found out about the deception, I was pissed off.

That's all for today.

Dunwich, you can come back into the living room now.

I'd like to point out that what you've written - especially regarding biases from hired guns with vested interests in telling a client what they want to hear

That's not what I wrote. If that's how you would characterize the work of attorneys, I disagree.

It's not a published opinion and it has absolutely no force as precedent. An attorney could not even cite it in a brief.

Sorry, but that's wrong, on at least three points.

What's being played is a game of legal brinksmanship and it won't be the litigant or the lawyer in that one particular case who "loses" - it will be the entire type community at large

That, I agree with. A motivated defendant can cause new law to be made that is adverse to future plaintiffs.

But this is all theoretical. To go back to my original comment earlier in this thread, a side effect of the "flourishing" of the type industry is that litigation is a less efficient use of capital than marketing.

As others have said, copyright law is just not a big factor in how the font industry operates. In the US, it wouldn't surprise me at all if Adobe v. SSI ends up being the last word on the issue.

As others have said, copyright law is just not a big factor in how the font industry operates. In the US, it wouldn't surprise me at all if Adobe v. SSI ends up being the last word on the issue.

Indeed. The case was important because at the time there were companies seeking to make a business from essentially repackaging and reselling fonts, which is why it was tackled as a classic copyright violation, the same as republishing a book without permission. Since Judge Whyte's summary judgement in that case, that business model has mostly evaporated or, at least, no longer attempts to claim legitimacy and operate in plain sight. But I think the judgement, and the pause it gave to such unlicensed repackagers and resellers, was only partially responsible for the decline of that business model. Equally or more important has been the development of unlicensed font distribution via torrents and other online channels: why would someone pay $X for a CD of renamed fonts when they can download the originals for free?

"It's not a published opinion and it has absolutely no force as precedent. An attorney could not even cite it in a brief. It is not binding on any court, even in the same district."

You say something like that, which as Matthew points out is wrong on at least three counts, and wonder why we don't take you seriously on font legal stuff?

My "views are a pass-along of stuff he's been told by lawyers working for Adobe and a lawyer for litigants like Font Bureau."

Not entirely. They are a combination of reading a lot (including case law), AND talking to lawyers a lot. And not only lawyers working for foundries.

"Thomas loves type and the type community and should he feel those things being threatened and should his considerable powers of reason and analysis fail him as a result, I would understand anyway. "

Don't insinuate if you're not willing to accuse. And in this case, even the insinuation is unfair. Although I do have plenty of strong feelings about matters typographic, they don't particularly color my judgment on questions of business, history and legality. I have a pretty long track record of dispassionate analysis: I'm hardly a fan of George W. Bush, but came out against the authenticity of the Killian memos, for example.

Just to be clear: I think that US law is "reasonably settled" on the question of whether common digital outline fonts are covered by copyright as software, and that they are. By "reasonably settled" I mean that there is some case law and precedent, and that all the major parties involved seem to agree on the nature of legal reality on the general issue. Also that, as Matthew Butterick said, it's not at all apparent that anybody will (ever? say within my lifetime, anyway) have sufficient motivation to seriously re-open the issue in court, in hopes of getting a contrary outcome, which I expect would take years and cost millions of dollars. No single party has enough to gain, as far as I can tell. It's my belief that even if somebody did pursue it, they'd have a less than 50/50 chance of changing the current status quo. Not at all impossible, just worse than even odds.

As a separable and distinct question, I also believe that considering fonts to be software for purposes of copyright is reasonable. I think this is a much more hotly contested question however, and plenty of smart and well-informed people are on each side of that particular fence.

But that's a separate question from "what's the status quo." So, until or unless somebody contests it in court, there is a common understanding, and nobody big enough to be well worth suing has been violating that understanding without getting chased by the copyright holders.

I wish that the abstract design of a typeface were protected under copyright law in the USA, but that's just not the case, and I wouldn't pretend otherwise. As best as I understand it, taking a current retail-licensed font, printing it out at large size, scanning it back to a bitmap, and tracing outlines from that does not infringe the copyright on the font software. It may be a contract violation if the person doing it licensed the font, and the license forbids it. It is normally unethical. But not AFAIK illegal unless the typeface is protected by design patent, which is rare.

This is just one of several cases where my belief about the state of font copyright law is quite the opposite of what I would like....

I find it sad, and personally, offensive that the legal system has no reasonable, verifiable, fair to all, and absolute way of protecting the original visual design of a typeface. It bothers me, yes, because I am one of the few hundred people in he world who chooses to design type. I am glad that at least there is some kind of alternative way to hold back the hordes of ripoff artists who would surely take a shot at type design piracy if the "software" laws were not in place. As unfair as they may seem to the few hundred practitioners of type design, it is still the only tool at our disposal.

Thomas (above) mentioned the "legal" procedure that a font pirate could follow and not be prosecuted under current laws. Surely this is not "airtight" protection. It does possess one very significant deterrent to thieves and pirates. It involves many hours of work (and reasonable skill).

After all, thieves and pirates become thieves and pirates to avoid the "many hours of work" honest men accept as needed. Without this "Work-around" called software similarity, all a thief has to do is duplicate someone else's font files and that is hardly any work.

Although I pride myself as a man who does not believe in violence, I must admit that I chuckle to myself at the thought of planting a bit of code in a font that would flawlessly determine if the file were a legitimate one or not. Those found to be tainted would proceed to melt the host computer into a foul smelling blob of vermin that clung forever to the guilty culprit--Fun thought but quite impossible so I will make myself content with the knowledge that thieves hate work.

Above all, I don't want to punish our good paying customers for their honesty by making them bear the burden created by the thieves and pirates who roam free. If we cannot always punish the guilty, then let us surely add no misery to the innocent purchasers of our wares instead.

"It does possess one very significant deterrent to thieves and pirates. It involves many hours of work (and reasonable skill).

Absolutely agreed. The status quo of digital font IP in America, while arguably goofy, is sufficient to deter almost all commercial font piracy. (By this I mean pirating and reselling fonts.) As a result, I believe the benefits to a more rational approach are more theoretical than practical. Protecting designs instead of (or in addition to) font software will have zero impact on people who are already violating the law as it exists today.

@dezcom:
Thomas (above) mentioned the "legal" procedure that a font pirate could follow and not be prosecuted under current laws. Surely this is not "airtight" protection. It does possess one very significant deterrent to thieves and pirates. It involves many hours of work (and reasonable skill).

Since there is even an open-source add-on to an open-source font creation program that traces outlines automatically, if a thief is content with poor-quality copies of existing typefaces, even the deterrent you cite appears to be absent.

I would assume that people who would be content with a poor quality copy wouldn't buy a font in the first place.

There will always be thieves – every industry has them. I think instead of trying to create new legal ways to protect typefaces (which, it seems, most would not want to spend the money to enforce – not that I blame them), the most likely deterrent is to make it so that it is harder to copy fonts in a technical sense. Like dezcom said, the thief, it seems, tries to avoid many hours of work. If it takes many hours of work to remove a font from a pdf, that is more of a deterrent than any law would be.

the most likely deterrent is...

A few broken legs?

@John

My old buddy Jack retired from his day job back in the 1980s. I wonder if he might be available in a new position--as the lead officer on typeface anti-piracy enforcement? He was known to have rearranged a few skeletal sidebearings in his day ;-)

When I have the energy and the time, I try to be a pain in the ass on as many threads and forums as possible. I lost all track of this one, and I wanted to pick up on something Butterick wrote.

(BTW - Love Dezcom's pic. And having grown up in Brooklyn during the era of "Goodfellas", I'm familiar with the Tony Soprano school of dispute resolution. And that's all I'll say about THAT except to say that you couldn't do business in the apparel industry of New York without having to deal with certain kinds of people.)

@butterick

RE: The reasoning in Judge Whyte's comments.

When I first read it, I half bought the notion being promulgated by Adobe. In fact, I spent several hours a few months back with somebody quite into the open source movement, and it came up in casual conversation and HE bought that reasoning, too. (A lot of people active in open-source do so out of purely philosphical or political disposition. I've been suprised at how little the actual details of the law figure in their thinking.)

But Whyte is completely erroneous. And my even half-buying into it stems from a fundamental misunderstanding of what constitutes protectable expression under copyright law.
A big part of the reason, I think, is that the copyright industries spend hundreds of millions of dollars a year to obfuscate the issue and frame it to their advantage - it's an ongoing and unceasing political campaign - and so it takes awhile to undo the confusion from that. It effects lawyers and judges, too, obviously. After all, that's where the payoff is.

First, the notion that there is choice in the selection of points is dubious to begin with, but let's let that go and assume there is choice.
Just because there is choice, it does not follow that there is protectable expression. Can you copyright a color scheme? There's choice, right?
Is the choice of route between two destinations - like those chosen by Google Maps and Mapquest - copyrightable? After all, there's choice. (I bet the lawyers DID give that one some thought.)

A failure to connect choice and protectable expression is missing in Whyte's writing. But like I said, he was deciding a case, wrote this and that, and the opinion wasn't published. Like a lot of judges, I think his concept of the technical issues was dim, to say the least.

One of the reasons I write comments in forums - unpaid work - is for the same reason experienced stand-up comics play small comedy clubs for free - to try out new ideas.

And I came away from this thread with the spark of an idea for writing about the law as a technology of sorts. We talk about the "legal system". And where there is a system, there is, at a minimum, a set of interrelated parts working together as a part of an overarching scheme - a technology of sorts. In fact, I've heard lawyers refer to what ordinary people would call "forms" - stuff to be filed with the court to get a certain result - as "instruments". And this helps to strengthen my instinct that it's a line of thought worth pursuing. I'm just wondering now if anybody has ever taken the same tack.

'nuff said.

A lot of disciplines borrow techno-scientific terms to impress themselves, and others, with how logical and rational they are.

I'm not sure who you mean by "copyright industries", but it is not just those who produce creative content—copyright is also fundamental to the emergence of packaged goods.

Ultimately every business needs to be able to protect its brand—consider the origin of that term, and the penalty in the Old West for pirating a brand or branded property.

I'm sure you can exploit the metaphor of law-as-technology, because there is a similarity in all human-formulated systems.
For instance, mechanical servo systems and biological ecosystems operate on feedback, and are hence cybernetic.

As John von Neumann, father of game theory, put it, "The territory is not the map."

@nickshinn

>A lot of disciplines borrow techno-scientific terms
>to impress themselves, and others, with how logical and rational they are.

True. I've certainly seen it. In some cases though, it's not pomp but a linguistic holdover from days of yore.
I believe you can now search through Google Books to find fairly precisely when a particular term first appeared. Amazing.

>Ultimately every business needs to be able to protect its
>brand

No they don't. Why? What's the benefit to them?

>—consider the origin of that term, and the penalty in
>the Old West for pirating a brand or branded property.

So colorful. But, uh, I think you've seen too many episodes of Bonanza.

Trademark did not come about to help business. A trademark might prove helpful if the trademarked item does well. But the trademarked item can just as easily fail, and the trademark won't help you a bit.

No, trademark came about to avoid confusion in the minds of the buying public. It's a public good, not some kind of corporate welfare. And I think it's useful, if sometimes abused. At least it comes with some responsibilities on the part of the trademark holder.

I'm not surprised you present it as something for business, and not the public, though. Like I said, it's amazing what hundreds of millions of dollars a year in spin can do over time. So I forgive you.

(Nick: Nothing to do with this thread, but you're just the man I wanted to speak to about something. Sending you an email shortly. Hoping you'll be able to oblige. :)

rich

Oh yes, "I'm sure you can exploit the metaphor of law-as-technology, because there is a similarity in all human-formulated systems."

Yes, I think there's something, I'm not sure what exactly yet, there.

Rich, yes trademarks exist to avoid confusion in the market, but a trademark is also an asset. It is something that the trademark holder can sell, license etc.; this is why companies defend their trademarks, to uphold their value.

Copyright industries are those that exist to exploit or by exploiting copyrights.

© and ™ here too!? Snakes alive.

No, trademark came about to avoid confusion in the minds of the buying public. It's a public good, not some kind of corporate welfare.

The mass market for packaged goods emerged as a system that benefitted both producers and consumers, and in between enabled the advertising industry and boosted mass media exponentially. Trademarking was an integral part of the system, so that a company might advertise in publications distributed nationwide, and have merchants and consumers in every town identify its products.

In 1882 Harley Procter put a wrapper around a bulk product, branded it Ivory Soap, and placed ads for it in Ladies Home Journal, kickstarting consumer culture. Ad revenue dropped the price of magazines, circulation soared, and product shifted. Feedback loop.

I'm not surprised you present it as something for business, and not the public, though. Like I said, it's amazing what hundreds of millions of dollars a year in spin can do over time. So I forgive you.

I appreciate the forgiving mood you've been in recently (noblesse oblige). However, your attribution of my brainwashing is mistaken—my emphasis on the economic genesis of trademarks comes more from being indoctrinated by Marxists at a tender age than from my career in commerce.

Do trademarks benefit businesses, or the public?

I should think both.

If they benefit the public by allowing them to know who is behind the products they buy, then clearly they also benefit the businessman who produces the quality products they prefer, by protecting him from losing business to disguised imitations.

And this is why the law, not just recently, but even at the beginning, treated trademarks as the property of businesses, since it was simplest to leave to the individual business the responsibility of protecting its own trademark.

Do trademarks help everyone more or less than no trademarks allowed? Kinda like asking if any imperfect system is better than no system at all.
The devil is in the details either way. Whatever system used will become favorable to the wealthy and powerful as well as the devious and unscrupulous. The rest of us will get a little something out of it and hopefully enough to be better off than with the total chaos of anything goes.
I wonder how these 2 expressions came about? "Who said life was fair" and "Nice guys finish last"

Not to forget how trademarks seep into the collective conscious. Ya Merkins still fed-ex parcels, don't you, even if it's not always by Federal Express?

We still have willyses and primuses here in Iceland. Willy's Jeep is long gone, but the CJ is still a willys. AFAIK, the Swedish company Primus still makes portable stoves.

Rich: "and the opinion wasn't published"

I was under the impression that the published/unpublished distinction only exists at the appellate and higher levels, not at a regular federal district court. Is this not the case?

But aside from that, I think your comment on why you think Whyte was wrong was the clearest statement you've made on that, after much general objection. I don't think I agree with you, as a typeface consists of hundreds or thousands of such tiny decisions. But it's the most plausible argument I've heard.

Not sure about the apropriateness of giving the source of this. Let it go at, an attorney familiar with fonts, that's all:

"An unpublished district court opinion is not precedent in that no court is obligated to follow its decision, including other judges in the same district court. You may or may not even be able to cite to it in a brief to the same district court (though sometimes you might because judges in a district court probably know each other well and might be influenced by how their fellow judges ruled).

The citation for Adobe v. Southern Software is this: Adobe Sys. Inc. v. S. Software, Inc., No. C 95-20710 RMW (PVT), 1998 WL 104303 (N.D. Cal. Feb. 2, 1998). This case was not published in the Federal Supplement, or even the Federal Appendix. The first set of numbers after the case name is simply the district court number assigned to the case. The second set of numbers (following the comma) is a citation to Westlaw's database (indicated by "WL"). The parentheses indicates that the decision was issued in the Northern District of California in 1998. (If this case had been published officially in the Federal Supplement, the cite would look something like: Adobe Sys. Inc. v. S. Software, Inc., 50 F. Supp. 3d 100 (N.D. Cal. 1998).) So the case is officially unpublished, though its inclusion in Westlaw's database is usually afforded at least a little influence. But nobody is obliged to follow the decision as precedent. The case is really only important to another court, even in the same district, to the extent that its reasoning is persuasive. And that, really, is the debate: is it persuasive? It does not stand for the blanket proposition that computer fonts are copyrightable throughout the land, as everyone seems to have taken for granted. Computer fonts are not even necessarily copyrightable in the Northern District of California.

Just because a decision is not officially published doesn't mean you can't find it on the internet. There are lots of them out there, and they are useful and informative to many people, but they are not precedent."

Note the difference between mandatory and persuasive authority. This gives a fairly good summary:

http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive.htm

Also see:
Circuit Citation Rules (Unpublished Opinions)

And that, really, is the debate: is it persuasive? It does not stand for the blanket proposition that computer fonts are copyrightable throughout the land, as everyone seems to have taken for granted.

It isn't mandatory authority, but the reasoning isn't unfounded. (And it has been cited a handful of times over the years according to Westlaw.) It also offers the argument that 57 Fed.Reg. 35 (February 12, 1992) (“Registrability of Computer Programs that Generate Typefaces”) supercedes the previous stance of the Copyright Office that fonts didn't count as protectable software. The language of 57 Fed.Reg. 35 is doesn't seem all that equivocal—

The portion reproduced in Adobe v. SSI:

After a careful review of the testimony and the written comments, the Copyright Office is persuaded that creating scalable typefonts using already digitized typeface represents a significant change in the industry since our previous Policy Decision. We are also persuaded that computer programs designed for generating typeface in conjunction with low resolution and other printing devices may involve original computer instructions entitled to protection under the Copyright Act. For example, 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 unprotectible shape of the letters nor functionally mandated. This expression, assuming it meets the usual standard of authorship, is thus registrable as a computer program.

@Ehague

Thank you for the links.

>but the reasoning isn't unfounded.

I'm not familiar enough with what the term "unfounded" means in this context to argue one way or the other. If you want to substitute the words "makes sense", I'm ready to go.

>(And it has been cited a handful of times over the years according to Westlaw.)

What sort of citations? Where and by who and the purpose the citation served makes a big difference. Could you post them here? I don't have a Westlaw account.

>The language of 57 Fed.Reg. 35 is doesn't seem all that equivocal

I'd like to go back and read "The language of 57 Fed.Reg. 35" and I'll get back to you.
It seems like 57 Fed.Reg. 35 and Adobe v SSI are getting mixed together there, and I'd like to separate the two.
Also, policy decisions regarding registrability are exactly that: decisions regarding registrability. It is no guarantee of anything. A valid registration is neither a mandatory NOR a persuasive authority.
Especially since nearly all works consist of protectable and unprotectable elements. How could it mean anything?

The idea that registration counts for something, leads the general public to believe that simply because they can obtain a registration of copyright, the work necessarily has protection. And nothing could be further from the truth.
It's no more protectable than if they had done nothing and saved the fee. The geniuses (or whores, I think it's fair to say) in Congress have imparted protection as soon as the expression is fixed in a tangible form, with no further ado.

This is big point of confusion for a lot of people, and needs to be cleared up. So thanks for bringing it up.

(There's a book on copyright named: Freedom Of Expression by Kembrew McLeod. As an exercise in the absurd, McLeod trademarked the expression "Freedom Of Expression" which appears like this: Freedom Of Expression™ throughout the book.
I don't know about other readers, but it got a laugh out of me every time. [It's a book worth reading if you're into this stuff and you can get it real cheap. Not an A list title.] I just got to thinking about it in relation to the USPTO and registrability. I have the feeling I could get registration for a novel titled The Great White Whale that, outside of the title, reads exactly the same as Melville's book on the same theme. That wouldn't mean much in court would it?)

But I'll check it all out.

Uh, just discovered your link to Citations Rules takes me to a page on the Typophile Wiki section. ??

[ I just fixed the Citations Rules link in Eric’s post. I don’t think the shortcut link method likes “https” for some reason. That shortcut has been buggy for a while, anyway. Link should work now. ]

@kentlew

Thanks.

@ehague

If you'd be so kind, my request for the citations still stands. However, because of time factors - I'd love to argue from all angles - I decided to cut to the chase.
Ye olde bottom line.

Check out the case "Meshworks v Toyota". In that case, the court held that vector depictions of Toyota cars - exactly like fonts are depictions of typefaces - are "slavish imitations" of the cars by digital means and therefore not copyrightable. The appeals court upheld the lower courts ruling, (a good thing for the "strength" of the precedent), and denied the plaintiffs a copyright on the vector-based depictions of the cars. The decision was even humorously apologetic with a "nice try, but sorry, you're screwed" kind of tone to it.

The court ACKNOWLEDGED that there was choice, acknowledged that there was great labor, but still, in line with clear precedents, like Feist, in essence told the plaintiffs that their copyright registration was good for nothing.

All you have to do is substitute the word "typeface" for "cars" and the reasoning will lead you to exactly the same result. Eldred doesn't even enter into it, but it is, I guess, additional bad news.

Meshworks has been written about quite a bit.

Uh, Typophilers - don't get in a snit about "slavish imitation'. It's no slur and doesn't necessarily mean, literally, slavish imitation. If Hague responds, I'll explain.

In that case, the court held that vector depictions of Toyota cars - exactly like fonts are depictions of typefaces - are "slavish imitations" of the cars by digital means and therefore not copyrightable.

The problem with this analysis is that in the case of a car, the car is the product and the vectors are the design, while in the case of a font, the vectors are the product and the design, these days, typically has no independent existence. A font is not a depiction of a typeface; a font is a computer program (according to the generous definition of the USCO) that in combination with other computer programs displays encoded characters on screen, in print, or other media. The point of Judge Whyte's analysis -- which was also mine at the time, in debates with the owner of SSi -- is that the choice of point placement in the vectors affects the display in different ways and the way in which the outlines interact with other aspects of the font software (notably hints, also interpolation algorithms etc.), and therefore their placement is not determined by a pre-existing design. In other words, you're begging the question, because the judgement you are challenging explicitly contradicts your challenge in affirming that font outlines are not imitations, slavish or otherwise, of a typeface.

I call myself a type designer because that is the common term for what I do, and because I like the associations with a long history of past practice and people whom I admire. But what I actually do every day is create fonts, a large part of which is a design process, but what I am designing isn't a typeface that is then depicted by a font: what I am designing, with more or less precision, is the various ways in which encoded text set in the font will appear.

If a tree falls in the woods, and nobody sees it on YouTube, does it still cut it?

Here are two cases that apparently didn't get all the way to trial but which nonetheless cited Adobe v. SSI.

ITC v. Adobe, 2004 WL 2814678 (N.D.Ill.)
Monotype v. Red Hat, Inc., 2002 WL 32678232 (N.D.Ill.)

Westlaw lists another 39 cites to cases, treatises, and secondary sources.

The fact of the matter is that there just isn't a lot of case law on this subject. Though Adobe v. SSI exerts no power as mandatory precedent, it is more directly on point to the subject of the copyrightability of digital fonts than is, say, the Toyota case.

Don't get me wrong—the Toyota case certainly lines up the arguments whereby the selection of control points might not be considered sufficient to engender a crucial modicum of originality (though the opinion's "creative labor" language seems to go further than the precedent it cites). However, a few distinguishing points—

1. When I said "unfounded" I was referring to the Adobe court's reasoning's basis in the Fed. Reg. that speaks directly to the copyrightability of digital fonts as software. The Toyota court analogizes heavily to cases dealing with per se copyrightability of photography because, as it acknowledges, vectorization is sort of new ground and there isn't a lot of precedent (or a convenient statement coming from the Copyright Office) on the issue.

2. There's also the issue of the "slavish copying." The characterization of the creation of a bezier outline of a character in a digital font as a transcriptive, pseudo-mechanical task makes sense to a degree when one is talking about digitizing a sketch, say. But when the creation of the unprotectable expression is concurrent with and inextricable from the digitization of it, it's hard to avoid regressing into the argument that typeface design is a highly creative process that ought to receive protection.

The danger in going against Adobe v. SSI is that it would upset a great deal of settled expectations as far as contracts/licensing digital fonts goes. That was the tradeoff in Toyota—sure, there's something to be gained when a court tries to keep the originality requirement from getting too soft, but here this company was thinking it had contracted to produce something that would require further licensing if Toyota's contractor wished to use the vectors further, only to get burned when it realized it had negotiated something it couldn't claim rights to.

@ehague

>The danger in going against Adobe v. SSI is that it would
>upset a great deal of settled expectations as far as
>contracts/licensing digital fonts goes.

Wrong. And I have no idea what you mean by the phrase "settled expectations".
Look, it's simple: one judge wrote something that doesn't matter as precedent.
Those with an interest in insisting that fonts were copyrightable software jumped on it and blew it out of proportion out of self-interest. So what else is new?

>"The Toyota court analogizes heavily to cases dealing with per se copyrightability of photography because, as it acknowledges, vectorization is sort of new ground and there isn't a lot of precedent (or a convenient statement coming from the Copyright Office) on the issue."

Also wrong. They don't analogize at all. They cite and explain the case law upon which their decision is based. Legal scholars expert in copyright have called it a very well-reasoned opinion. Read the decisions cited. The court in Meshworks isn't winging it.
And it's an appeals decision, too.
There's nothing equivocal about it.

One question: do you know anything about how fonts are constructed? What they actually are? THAT I'd really like to hear in your own words.

And if you think the USPTO decides what's protectable, or even has a great influence on court decisions, go ahead, believe that.

Uh, frankly, I detect some partisanship here. A desire to find a result. Even if it's fog. Not an effort to find out how things really stand. Your thumbnail synopsis of the case is way off.

Thanks for the links, once again. And good luck with your research. Hopefully you'll be able to make it available when done.

Incidentally - I don't know if the page is still there, but when Meshworks was decided, William Patry wrote a bit about it on his blog. Interestingly, an IP lawyer in LA commented on the connection between the vector-based renderings done by Meshworks, and fonts.

If your argument is that vector outlines are a kind of protectable expression separate and apart from the expression produced when those vector outlines are interpreted and rendered, go for it.

Richard Fink
Blog: Readable Web
Type Director: Kernest

R.F. -- One question: do you know anything about how fonts are constructed? What they actually are? THAT I'd really like to hear in your own words.

One answer: Read the spec. What are you asking for? "The OpenType Specification Retold · Now Rhyming"?

Given the amount of words you offer, could you please summarize what your point is, in a few words?

Hey, Cool Hand! Hope all is well.
[Just the man I want to talk to but not about this. I need to know if a FontLab Python script is doable for something and if you can do it and at what price. Expect an email.]

And since it IS you, I'll answer:

The question was born of time-wasting experience while discussing this stuff with attorneys.
Not one of them had any idea how, technically, a font was put together. And that adds a kind of mystery to the discusion that I'm detecting with ehague. Ehague is vague (hey, that rhymes!)on the point and the nature of a font's construction is a critical "fact" in the legal sense.
That a font is not "code" as people would normally conceive of it, but rather a database containing labels and numbers is very important.
Hence, OpenType "Tables". Tabular data. Every attorney I've spoken to, was rather taken aback by that. "You mean that's all it is?" was the usual response.

I'm technical. You're technical. We have the background to read the OpenType spec and understand what it says. (You moreso than me, I'm sure.)
Telling a a lawyer or a judge to "go read the OpenType Spec" is not only counter-productive, but you don't talk to judges or write briefs that way.

Does that cover it? Or did you have a different point in interjecting?

Richard Fink
Blog: Readable Web
Type Director: Kernest

1. The Toyota court analogized to a better-developed realm of case law than that which existed for the precise subject matter it was dealing with. Analogy is a perfectly respectable mode of legal reasoning.

2. Toyota is precedent in the circuit in which it was decided (10th circuit). It is binding on other 10th Cir. courts. Otherwise it works as persuasive authority on courts in other circuits.

3. Settled expectations is a legal concept that refers to situations in which parties have operated for some time under the belief that, for example, they have property rights in something or that a contract they are party to is valid. The entire digital font industry believes it has a property interest in its digital fonts and has become party to innumerable licensing agreements as a result. This is just one thing a court or legislature might consider if it were going to completely abrogate copyright in digital fonts.

4. Fonts are created using a) selection of bezier points that best fit the contours of a glyph sought to be described (and the contours of other glyphs that the glyph must be harmonized with) b) the setting of sidebearings c) the programming of any substitution, class kerning, etc. d) any other incidental choices (e.g., how the hinting will be handled, how the font will appear in font menus). Am I missing anything important?

Beyond that I think I'm done arguing this.

I wouldn't say that bezier points are selected to FIT a contour.
The contour doesn't exist until the BCPs define it.
Bezier points are used to CREATE and define/fix a contour, just as graphite is used to realize a line when drawing with a pencil.
The hand-tool that does the digital drawing may be a mouse, stylus, track ball or track pad.
Make no mistake, this is hand-eye-brain feedback-loop DRAWING—I don't know any type designers who create glyphs by typing numbers.

Look, it's simple: one judge wrote something that doesn't matter as precedent.
Those with an interest in insisting that fonts were copyrightable software jumped on it and blew it out of proportion out of self-interest. So what else is new?

Richard, your argument no longer merits response, since you refuse to acknowledge the errors of law, reasoning, evidence, and common sense that have already piled up.

@Nick

I agree that "fit" isn't the right word on a practical level. I was just trying to honor the artificial legal distinction between the creation of a (non-copyrightable) typeface and the rendering of it through (copyrightable) description in vectors.

I don't know any type designers who create glyphs by typing numbers.
This is very close: http://www.typophile.com/node/73827.

"Richard, your argument no longer merits response, since you refuse to acknowledge the errors of law, reasoning, evidence, and common sense that have already piled up."

Oy vey. I try to get away, put they keep pulling me back. To cop Al Pacino's line from Godfather III.

Be specific about these errors of law, reasoning, evidence and common sense that you see and I'll respond to them one by one. How's that.

'Cause I'm not seeing these things. And besides, there's far more arguments I could make, and will, but not here. But if you want to deal with what you say is convincing stuff supporting "fonts as copyrightable software", that exists on this thread as it stands, I'm all ears.
Because all I give a hoot about is laying out all of the court decisions that may apply, look at the history of it, weigh whether the numbers in a table which describe a typeface qualify - independently of the typeface - as protectable "expression", and wherever the chips fall, they fall. I really don't give a damn where they fall.

In other words, if you say there's a case to be made here for "fonts as copyrightable software" make it. And I'll respond point by point. The onus is on you, you've made a claim.

In other words - wanna piece of me? Bring it on. But keep it restricted to what's already been presented here.

@jh

"It is something that the trademark holder can sell, license etc.; this is why companies defend their trademarks, to uphold their value."

Yes, trademarks are transferable. But I'll say it again - if the product stinks, or stank, the trademark is worth little to nothing because it's use will only bring negative reactions. I'm not sure I'm seeing a point here.

The best way to defend a trademark is simple - use the name to market a great product or product line.

Richard Fink
Blog: Readable Web
Type Director: Kernest/Konstellations

@Richard Fink:
The best way to defend a trademark is simple - use the name to market a great product or product line.

Odd. I thought that was the thing one had to do in the first place to have a trademark likely to be infringed upon, and one that was worth defending (by the other means of litigation).

In the absence of that, the best thing to do is to change one's trademark frequently, to confuse one's previous customers into buying from you again.

Knock-off vendors don't even have to pay for a logo design or even advertising! They simply steal the original guys stuff and laugh about it. I wonder how many REAL Gucci bags have been sold? Too bad Gucci did not have mob connections, they would have made the knock-off guys many offers too good to refuse ;-)

@quadribloc
Odd. I thought that was the thing one had to do in the first place to have a trademark likely to be infringed upon, and one that was worth defending (by the other means of litigation).

I think we're using defending in different senses of the word. You are correct. And me too. IMHO.

@dezcom

What you're describing is fraud. Pure and simple.
But what's interesting is that the customers - women from all walks of life, married and single - are not fooled one bit, in fact they are complicit in the deception. So what do you make of that?

Yeah, let's put these ladies in jail!
http://www.flickr.com/photos/rosco-photo/3495354031/sizes/z/in/photostream/

Here's an article from the Virginia Law Review:

Shopping For Gucci On Canal Street: Reflection On Status Consumption Intellectual Property and the Incentive Thesis

BTW - I think Gucci, as a company, is doing quite fine, last I checked. The literally poor bastards selling knock-off bags off of folding tables on Seventh Avenue, not so good, last time I checked.
In the handbag trade it pays a lot better to be the ripped off, not the ripper.

Far from putting a hit out, Gucci should pay for the marketing effort.

(Moderator: looks like the previous comment about online gambling is spam.)

Lineto has recently plagiarized a trade name (Brown) I've been using for several years.
I asked them to change the name, but they have ignored me.
I really don't want to instruct my lawyer to go after them (in Switzerland).
Their font isn't a copy of mine, but they are both sans serifs.

I don't usually register trade names, as it seems to me to be an unnecessary expense in such a "small" industry.
Nonetheless, it does seem that their action has lessened the value of my intellectual property.