MESSAGE
| DATE | 2002-05-01 |
| FROM | Ruben I Safir
|
| SUBJECT | Subject: [hangout] DMCA Threat to free software developer
|
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
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)...
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
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!
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
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
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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