Or maybe the software is breaking the law. :-/

To me it's a scare tactic.
http://typophile.com/node/87356
http://typophile.com/node/87356#comment-504449

BTW, I know of a type designer who even expects programs like FontLab to refuse to open a third-party font.

hhp

Using a font in a layout application doesn’t transform it.
That’s the beauty of digital, no matter how ugly the typography.

Does this seriously mean if I use the font in a design program and stretch it vertically that I am breaking the law?

I've not encountered any EULAs that would prevent such manipulation in the use of a font.

Remember that EULAs are software license agreements. What EULAs restrict is modification of the font data, not affecting display of the unmodified font data using asymmetric scaling or something like Photoshop filters.

There's a difference between changing the font itself (a piece of software) and modifying the printed output. You may feel that it's a distinction without a difference, but they're technically and legally worlds apart. Modifying the output graphically is the same whether you color it or stretch it or even change the appearance of a character.

- Herb

Actually, you sound incredulous; as you paraphrased it, the EULA sounds ridiculous. However, “modify” and “transform” mean different things; the other posters above have given a correct reading.

John, AFAIR the Emigre EULA used to contain (maybe still does) something about equally ridiculous.

BTW, what if an application had the ability to export a "transformed" font? And what does "transform" really mean? This is all much grayer than you guys are admitting.

hhp

Of course, since it can *look* the same after us users have done our work, how you gonna know if it was done with a font editor or applications program?

It may seem silly, but that sort of thing is a relatively standard and common condition. The font file is not to be used to produce derivative works, even if they're only used internally.

Yes, one can, of course, manipulate text one has printed in a font - but that, being less convenient, won't lose them sales of condensed versions of the font as separate products, they may feel.

how you gonna know if it was done with a font editor or applications program?

That’s between you and Jiminy Cricket…

Hrant: BTW, what if an application had the ability to export a "transformed" font? And what does "transform" really mean? This is all much grayer than you guys are admitting.

The original poster used the word 'transform'. Was he quoting from a EULA, or being sloppy in his choice of words? EULAs are legal documents, so they tend to be very specific in their choice of wording and typically say something like 'You may not modify the font data'.

If an application is able to take the transformed output of a font and produce from that a new font, that wouldn't be violating the EULA prohibition against modifying the licensed font data, but depending on how the process worked it might violate other terms of the EULA regarding creation of derivative works. For example, if the process involved converting to outlines and then writing those outlines to a font file, that would seem to me pretty obviously a derivative work -- akin to the process that SSi used when producing derivatives of Adobe fonts --, whereas tracing the results of a Photoshop filter applied to text might not.

None of this is a grey as you want to make it.

Yes, one can, of course, manipulate text one has printed in a font - but that, being less convenient, won't lose them sales of condensed versions of the font as separate products, they may feel.

Bad example. For example, using InDesign, just do the condensing once in the "Basic Paragraph Style," and base your other styles on that. However, beyond a small percentage, good condensing is usually more than just a mathematical formula. Try it & see.

On the other hand, there are some fonts where I think a 1% to 2% condensing actually improves the font. Arnhem Blond comes to mind, when used for books rather than the newspaper work for which it was originally designed (wonderful font, by the way).

Even more -- if you need a new character, just start your own "supplemental characters" font, and sub them in with a grep search (with InDesign, anyway). The only issue is kerning, so get the side bearings right. Remember, in the States at least, a *design* cannot be protected by copyright, only data. I suppose you could even sell the supplemental character set in the States, under a different font name.. You might have to have to prove you didn't copy the data from the original. Just keep the backgrounded character, tracing, & refining you made. Whether or not it is ethical would be another question. Personally, I'd find such sales unethical.

About the only thing you can't do with an applications program is increase the weight of the glyphs in a font. But it wouldn't be impossible to add that feature ...

Best would be for the EULAs to aim at anti-piracy rather than restricting an end-user from doing work. The font publisher is entitled to be paid for their work. However, in my opinion, that principle should not stop a user of type from accomplishing their work.

But you can patent a typeface design in the US, as Adobe has shown.

> You might have to have to prove you didn't copy the data from the original.

No, they have to prove you did.

hhp

This brings up the whole subject of copyright in the world of fonts. It strikes me that no other art treads quite as fine a line between originality and infringement as type design does. After all, how different ways can you make an uppercase A before it is unrecognizable as an uppercase A. Yes I know there are tens of thousands of different designs for the majuscule A, but I believe you all know what I'm getting at. This issue becomes even more difficult when you get into specific genres, like grotesque sans.

Two notes:

While typeface designs may not be copyrighted in the United States, they can be patented; one of the early U.S. design patents was issued to the Bruce Foundry in 1842. However, since patents require a great deal more supporting material than copyrights, few designers avail themselves of patent protection.

Second, in a civil lawsuit in the good old U.S. of A., the defendant must disprove the plaintiff's claims; in other words, in civil court, you're guilty until proven innocent. Failure to refute the plaintiff's claims generally results in summary judgment against the defendant.

Patent a typeface? That strikes me as the dumbest thing I've heard in a while. I don't doubt that a large company can get a patent -- God fights on the side with the best lawyers -- but if it was ever invoked beyond the threat stage, I'd think the patent could be successfully challenged. As an aside, I'd bet no one ever challenged Adobe's patent on the InDesign H&J, though Knuth should have. He just didn't care enough -- his comments are a matter of public record.

Now what typefaces did Adobe get patents on?

Patent a typeface? That strikes me as the dumbest thing I've heard in a while.

During the Gilded Age of Foundry Type, it was quite common: old specimen books are filled with patented typefaces. Of course, there were far fewer styles available when producing a “font” mean casting or cutting a single size of a single design, so patent enforcement was a little simpler.

> That strikes me as the dumbest thing I've heard in a while.

Something I used to say in public quite often, a while back. But it's reality, and I don't exactly have the ear of US government, so...

BTW, in some European countries (like the Netherlands) simply scanning a printout of a font is illegal (at least that's what I remember from an exchange with PMN a while back). But hasheesh, no problem.

hhp

Here's an example of hat I was talking about. It's getting pretty far afield, and I'm no lawyer. I just don't think normal individuals should believe a patent will protect their designs

OK, as some of you know, I shoot benchrest. There was a guy, a writer, who got a patent on "the .300 Jamison." It was not new -- in fact, I'd been shooting something almost identical for some time before Mr. Jamison ever thought of it. But he got the patent, and threatened to sue Winchester & Browning for some of their later cartridge developments. They settled out of court. Had they chosen to fight it, any number of us could have shown reamer prints (the reamer is what is used to cut the rifle chamber) predating Mr. Jamison's work. Winchester et al. just figured it was cheaper to settle.

Now consider type -- how can anyone hold, after 400 years of type design, that they've come up with something new & better? I'm not even saying people haven't, but I'd think any lawyer worth his/her salt could show that something "new" had already been presaged.

Getting a patent is fairly involved, but easy to "prove." Having that "proof" hold up is another matter;

Your invention is not new, as defined by U.S. patent law, if:

An identical (or too similar) invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before your invention was; or

Your invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to your application for a patent in the United States.

The critical flaw in your reasoning is the assumption that Law contains an element of Common Sense.

You probably believe in Democracy too.

hhp

Now consider type -- how can anyone hold, after 400 years of type design, that they've come up with something new & better? I'm not even saying people haven't, but I'd think any lawyer worth his/her salt could show that something "new" had already been presaged.

Unfortunately, lawyers don't decide these things; bureaucrats in the Patent Office do. And, once again, patent infringement cases are civil cases—the plaintiff doesn't have to prove his claim is right; the defendant has to prove that the plaintiff's claim is wrong.

Hardly. I use to run the recording studio at Duke University. We wanted to do something that might be construed as "unfair competition" (Duke is tax exempt), so went to see the university lawyer. "What's legal," he said, "is what I feel comfortable going into court and arguing." He was not bragging, he was being perfectly reasonable about both the law and lawyers..

I learned something that day.

Chris -- being granted a patent is not the same thing as having it upheld. It is not the patent office's job to ensure the claims of the patent-seeker are valid. It is the courts job.

Unfortunately, lawyers don't decide these things; bureaucrats in the Patent Office do. And, once again, patent infringement cases are civil cases—the plaintiff doesn't have to prove his claim is right; the defendant has to prove that the plaintiff's claim is wrong.

If this is true then why isn't linotype suing every single person who has ever made a font?

Charles, US law recognises different kinds of patents. What most people think of when they hear the word is the kind of patent that applies to an invention, e.g. the proverbial better mousetrap. Such patents are properly called Utility Patents. Typefaces, and other forms of applied design, may be registered as Design Patents, which is a different class of patent. It is quite specific and, as has been noted above, the very first design patent was granted to a typeface design, 170 years ago. One of the ways in which design patents are different from invention patents is that they are granted for a shorter limited term: 14 years from the date of filing.

Other countries have similar provisions for design works, usually for similar periods of time, but use different terms. In Canada, the equivalent is a registered Industrial Design. So don't be confused by the term patent in US law and don't jump to the conclusion that it is silly without understanding the nature of design patents as distinct from invention patents.

But John, the question isn't what it's called or how long it's for, the question is: what protection, beyond copyright protection of the "code", is warranted, and given. IIRC Adobe Garamond was the first font in that library for which a Design Patent was applied, and was given. I mean, PLEASE.

hhp

@Ryan - Do some research - look up Linotype lawsuits. The answer to your 'why hasn't Linotype sued ..." is that they have. Tried, anyway.

If you want examples of some really screwy patents, look at those involving user interfaces on mobile devices.
These are for things that those involved in web site development would consider a graphic design page layout made interactive with html. However, transfer it to an OEM device et voilà…

Hrant, the bar for registration of new designs is deliberately fairly low, i.e. a design does not need to be unique, novel or groundbreaking in order to qualify. Remember, what a design patent protects is the exploitable value of a particular work, and the fact that there are people who want to use Adobe Garamond in preference to Stempel Garamond (or Simoncini Garamond or Sabon or, for that matter, Adobe's Garamond Premier Pro) means that it has particular exploitable value and, hence, warrants the particular kind of limited protection offered by design patent. Doesn't that make sense to you? If a design is distinctive enough to be individually valued and desirable, then there is something in it that warrants protection.

The process of registering a design patent requires identification of 'prior art', i.e. existing works either explicitly referenced in the filed design or influencing it in some way. So I'm pretty sure that when Adobe registered Adobe Garamond they identified, as a minimum, Claude Garamond's original types, and quite possibly some other revivals if they had influenced the design. But the patent registrars -- just like you and me -- can see the differences between Adobe Garamond and other revivals in the marketplace, and those differences give it particular exploitable value. It is a distinct design within the criteria under which the US Patent and Trademark Office has been registering typeface designs for 170 years.

John, the proof in the pudding comes when someone challenges a "newly offered product" based on a design patent. Has that ever happened? It's easy enough to say that Adobe Garamond is different. Harder to say that something else "isn't different enough." But that's where enforceable protection arises.

Charles,

You already answered your last point: “What's legal,” he said, “is what I feel comfortable going into court and arguing.” The same goes for what’s illegal: the only real obstacle to action is insufficient payoff. If the stakes are high enough, lawsuits will ensue.

It's easy enough to say that Adobe Garamond is different. Harder to say that something else "isn't different enough." But that's where enforceable protection arises.

Of course. But that is a different argument from saying that the whole notion of patenting a typeface is 'the dumbest thing you've ever heard'.