[FYI] (Fwd) FC: Exciting new use of DMCA! Banning font-twiddling software

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Wed, 1 May 2002 21:38:13 -0400
From:           	Declan McCullagh <declan@well.com>
To:             	politech@politechbot.com
Copies to:      	vikki.quick@agfamonotype.com, enquire.europe@agfamonotype.com,
	mark.larson@agfamonotype.com, david.dewitt@agfamonotype.com,
	tom7@cs.cmu.edu
Subject:        	FC: Exciting new use of DMCA! Banning font-twiddling software!
Send reply to:  	declan@well.com

I invite the folks at Agfa Monotype to reply. I will forward their
response (should I receive one) to Politech subscribers unedited.

Politech archive on DMCA:
http://www.politechbot.com/cgi-bin/politech.cgi?name=dmca

Slashdot thread:
http://slashdot.org/yro/02/05/01/2026234.shtml?tid=103

-Declan

--

http://www.andrew.cmu.edu/~twm/embed/dmca.html

   embed: DMCA threats

   I wrote embed in 1997, after discovering that all of my fonts
   disallowed embedding in documents. Since my fonts are free, this
   was silly -- but I didn't want to take the time to open up each one
   in Fontographer, change the flag, and then reset all of the
   extended font properties with a separate program. What a bore!
   Instead, I wrote this program to convert all of my fonts at once.
   The program is very simple; it just requires setting a few bits to
   zero. Indeed, I noticed that other fonts that were licensed for
   unlimited distribution also disallowed embedding (this is
   Fontographer's default, after all). So, I put this program on the
   web in hopes that it would help other font developers as well.

   That was five years ago. Of course, I left the program up because I
   believe it may be of continued interest to free font developers.
   Then one day...

   ---

   Date: 30 Jan 2002
   From: Paul Stack
   To: Tom 7
   Subject: Font Embedding

   Dear Mr. Murphy. I represent Agfa Monotype Corporation and
   International Typeface Corporation. The program you are
   distributing on your website which allows a person to change the
   embedding restrictions on a font has been brought to my attention.

   The distribution of this program, whether for free or for a fee,
   infringes my client's federal copyrights in their TrueType
   programs. This infringement carries the storng possibility of very
   substantial statutory damages, the imposition of a federal
   injunction, and an award of attorneys' fees. Demand is made upon to
   you to immediately remove this program from your website and to
   contact me so that we can discuss remaining issues between you and
   my clients.

   Very truly yours,

   Paul F. Stack
   Stack & Filpi Chtd.
   ...
   Chicago, IL

                                [000000.gif]

   Date: 30 Jan 2002
   From: Tom 7
   To: Paul F. Stack
   Subject: re: Font embedding

   > The distribution of this program, whether for free or for a fee,
   > infringes my client's federal copyrights in their TrueType
   programs.

   My web page contains none of your clients' copyrighted material. In
   order for me to take this message seriously, I think you should
   explain how precisely I am violating your clients' copyrights.

   I hope you address the fact that I have a legitimate use for this
   program, namely the modification of the dozens of typefaces that I
   created.

   Thanks,

   Tom

   [ Tom 7 : http://www.andrew.cmu.edu/~twm/ ]
   [ Tom 7 : http://fonts.tom7.com/ ]

   Months pass. Now, another letter with a stronger tone (but just as
   vague)...

                                [000000.gif]

   Date: 17 April 2002
   From: Paul F. Stack
   To: Tom 7
   Cc: Steve Kuhlman (VP Sales & Marketing, Agfa Monotype), Lawyers
   Subject: Cease and Desist Letter

   This office represents The Monotype Corporation and International
   Typeface Corporation. I have previously written to you about the
   computer software program which you are offering from the web site
   owned and operated by Carnegie Mellon University which allows a
   party to alter the embedding bits preset on TrueType fonts by many
   font manufacturers, including my clients. I have informed you that
   your conduct violates the copyright law. I have discovered today
   that you are still offering this program. Demand is made upon you
   to immediately cease and desist your unlawful conduct. If you are
   still offering your program by 5 pm, Central Daylight Time, on
   April 18, 2002, we will take such action against both you and
   Carnegie Mellon University as we deem appropriate without further
   notice to you.

   Paul F. Stack
   Stack & Filpi Chtd.
   ...
   Chicago, IL

                                [000000.gif]

   Date: 18 April 2002
   From: Tom 7
   To: Lawyers, Steve Kuhlman (VP Sales & Marketing, Agfa Monotype)
   Subject: Re: Cease and Desist Letter

   I have no reason to believe that I am violating your client's
   copyright. I feel strongly about free speech issues, and it upsets
   me to be bullied by lawyers -- not to mention the fact that I and
   others use this program in the totally legal process of creating
   free fonts. Therefore, I do not intend to remove the program unless
   you provide convincing arguments that I am breaking the law, or
   unless ordered to do so by the court. (And if you intend to take me
   to court, you might as well begin developing legal arguments now.)

   Please do not e-mail me again unless you intend to explain
   specifically how I am violating Monotype/ITC copyright.

   (Steve, do you really want to sue a student designer and a
   university? Trying to sue a program out of existence usually only
   causes it to become more popular (cf. DeCSS) on the internet.
   Several of my colleagues, including faculty members, have already
   volunteered to host the program on their websites in order to help.
   I also imagine that suing a popular* free font designer will not be
   such good publicity for Agfa Monotype or ITC among the community of
   young designers!)

   - Tom

   PS. I have forwarded your letter to chillingeffects.org, an
   Electronic Freedom Foundation clearing house for Cease and Desist
   letters.

   * Search google for "truetype fonts", and notice that my page is
   ranked 4th and 9th; your sites *pay* for the privilege to be listed
   on the first page!

                                [000000.gif]

   Date: 22 April 2002
   From: Paul F. Stack
   To: Tom 7
   Subject: "Embed"

   Mr. Murphy. You have asked for an explanation of the law regarding
   your program "embed." A memorandum is attached. I will check
   tomorrow to confirm that your program has been removed.

   (attached memo converted from WORD format)

   You have requested further information regarding the basis for our
   clients' cease and desist demand. The computer software program
   that you are offering on your website, identified as "embed,"
   violates copyright law. Section 1201(a) of the 1998 Digital
   Millennium Copyright Act ("DMCA"), effective October 28, 2000,
   states, in part, "No person shall circumvent a technological
   measure that effectively controls access to a work protected under
   this title." A technological measure "effectively controls access
   to a work" if the measure, in the ordinary course of its operation,
   requires the application of information, or a process or treatment,
   with the authority of the copyright owner, to gain access to the
   work. One "circumvents a technological measure" when he uses any
   means to descramble a work, to decrypt an encrypted work, or
   otherwise, to avoid, bypass, remove, deactivate, or impair a
   technological measure, without the authority of the copyright
   owner.

   Our clients, The Monotype Corporation, International Typeface
   Corporation, and Agfa Monotype Corporation own copyrights in
   numerous computer programs that generate digital typeface fonts.
   They, along with many other type designers, invest large amounts of
   time and energy in creating digitized typeface designs ("fonts").
   They earn money by licensing copies of these fonts to third parties
   under end-user license agreements.

   TrueType fonts have embedding "bits" which allow the creator of the
   font to decide the level of embedding that will be permitted. There
   are four different embedding bits: (1) no embedding, (2) embedding
   for view and print only, (3) embedding for view, print and editing,
   and (4) installable embedding.. Many small type design houses have
   set their embedding bits so that embedding of any kind is not
   permitted. Monotype and ITC allow end users to transmit embedded
   fonts for print and preview only, but do not permit editable
   embedding. Editable embedding and installable embedding, as you
   know, permits a person to transmit a copy of a font to another
   party simply by using it in a document and transmitting the
   document over the Internet or by copying on a floppy disk. The
   party receiving the font thereafter has a complete, useable copy of
   the font. An embedding bit is a "technological measure" that
   "effectively controls access" to their copyrighted works under the
   DMCA.

   "Embed" is a software program that enables the end user to remove
   the embedding bits preset by type designers and type foundries. By
   using "embed," an end user can change the preset embedding bits on
   a copyrighted font from restricted, print and preview, or editable
   embedding to installable embedding. By circumventing the preset
   embedding bits, "embed" circumvents a technological measure set by
   the copyright owners on their copyrighted data. Use of "embed" on a
   copyrighted font is a clear violation of the DMCA.

   You previously received notice that your software program violates
   my clients' copyrights. Continued distribution of "embed" is an
   intentional violation of the DMCA, and subjects you to actual or
   statutory damages. Statutory damages allow a recovery between $200
   and $2,500 per act of circumvention, along with attorneys fees,
   costs and other items of damages. We also have a right to seek an
   injunction against you to prohibit you from violating our clients'
   rights. Demand is again made upon you to cease and desist the
   distribution of your program.

   Dated: April 22, 2002

                                [000000.gif]

   Date: 25 Apr 2002
   From: Tom 7
   To: Paul F. Stack
   Subject: re: "Embed"

   I have reviewed your claims and have concluded that they are not
   applicable, and that Embed does not violate your clients'
   copyrights. My reasoning is included below.

   1. Background

   The TrueType format is a public specification developed by Apple
   Computer and Microsoft Corporation. Anyone can write programs that
   manipulate or create TrueType fonts. There are dozens of TrueType
   utilities being published and thousands of free fonts created by
   designers available on the internet. Copyrights for these fonts are
   held by a diverse set of authors, including commercial font
   foundries, "shareware" font authors, and hobbyists.

   I (Tom Murphy), the author of more than sixty TrueType fonts,
   developed a program called "embed" in 1997 to set the embedding
   bits on fonts that I developed. I released this program into the
   public domain as a service to the community of TrueType developers.

   Embedding bits do nothing to keep consumers from copying fonts. It
   is trivial to copy the font file wholesale onto a floppy disk or as
   an e-mail attachment along with a document that uses it.

   Furthermore, most applications do not permanently install embedded
   fonts on the recipient's machine, regardless of the state of the
   embedding flag. This presents another practical obstacle to using
   Embed for font piracy.

   Following are specific objections to the claims by Monotype/ITC.

   2. Embedding bits are not a "technological measure that effectively
   control access to a work" under 17 U.S.C.

   A. Embedding bits do not fit the definition in 1201(a)(3)(B).

   Embedding bits do not require the application of information,
   process, or treatment in order to gain access to the work. Fonts
   are fully usable, and copyable, regardless of the status of the
   embedding bits.

   Embedding bits suggest to *other programs* that the font may not be
   embedded. They do not control access to the work.

   Because the TrueType specification is a published file format,
   anyone can make use of the format and write programs that
   manipulate font data. I have the same author's rights as Monotype
   to make use of the documented features of that specification.

   3. Embed is not a "circumvention device" as defined under 17 U.S.C.

   A. Embed is exempt under 1201(a)(2)(B), because it has substantial
   commercially significant use other than circumvention. In
   particular, it is used by font designers (including the author) to
   set the embedding bits on font files for which they own the
   copyright. This is not "circumvention" (1201(a)(3)(A)) because it
   is done with the authority of the copyright holder.

   B. Embed is not "primarily designed or produced" for the purpose of
   circumvention. Rather, it was designed for font designers to set
   the embedding bits on font files for which they own the copyright.

   4. Embed has substantial non-infringing use
   A. Because Embed has substantial non-infringing uses (see above
   paragraph), it is outside the reach of 1201(a)(2). See Sony Corp.
   v. Universal City Studios, Inc., 464 U.S. 417 (1984).

   5. No circumvention has taken place

   A. Claims under 1201(a)(1)(A) are entirely baseless, as no
   circumvention has taken place.

   Since the enactment of the DMCA, I have only ever run embed on
   fonts for which I own the copyright. Agfa Monotype/ITC have not
   provided any evidence to the contrary.

   6. DMCA additions to 17 U.S.C. are unconstitutional
   A. Attempting to use the DMCA to restrict dissemination of a
   computer program is prohibited by the First Amendment, because
   computer code is protected speech.

   I trust that this clears up the issues between me and your clients.

   Tom

                                [000000.gif]

   To illustrate how simple this program is (in the style of Dave
   Touretzky's Gallery), I leave you with the following haiku
   explaining how it works:

   The OS/2 chunk
   has a bit for embedding.
   Set it to zero.

---



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