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Agfa replies to Politech on using DMCA to ban font editing tools



Note that Agfa Monotype is a wholly owned subsidary of 
Agfa-the-film-company, aka Agfa Gevaert, whose ISO25 black and white 
negative film I quite like: 
http://www.mccullagh.org/image/9/john-perry-barlow.html

I thank "#embeddinginfo" for replying.

Previous Politech message:
"Exciting new use of DMCA! Banning font-twiddling software!"
http://www.politechbot.com/p-03473.html

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

-Declan

---

From: #embeddinginfo <embeddinginfo@agfamonotype.com>
To: "'politech@politechbot.com'" <politech@politechbot.com>,
         "'declan@well.com'" <declan@well.com>
Subject: Embedding and the Digital Millennium Copyright Act
Date: Wed, 8 May 2002 11:04:11 -0500
MIME-Version: 1.0

A response to your thread: "Exciting new use of DMCA! Banning font-twiddling
software!"

As one of the few remaining font foundries, we at Agfa Monotype spend a
great deal of our time developing high quality fonts. We then market our own
fonts, as well as the fonts of many smaller type design houses and
individual designers that we have licensed. Our employees and the many
independent designers that we represent feed their families and pay their
bills from the revenues that we together earn from licensing fonts.
Unfortunately, a few people neither understand nor care about the time,
effort, and expertise required to make fonts that meet today's technical
standards.

It actually comes as a surprise to some otherwise knowledgeable individuals
that people actually rely on the development and licensing of fonts for
their livelihood. These individuals fail to appreciate that fonts are
valuable intellectual property and that the creator of a font, like the
creator of any other software, has the right to determine how it will be
used by the public.

Because we are dealing with both our property and the property of small
independent font developers, Agfa Monotype actively protects this property.
We try hard to encourage people to do the right thing before we resort to
legal action. We do this by explaining, as best we can, our position. We do
so again today.

TrueType fonts have the capability to be embedded in electronic documents.
Embedding means that all or part of a font is incorporated in an electronic
document, and if that electronic document is transmitted to a third party
via the Internet or e-mail, the font software used to create the document
goes along as well. The TrueType format allows the creator of a font to
specify one of four different levels of embedding for the font: (1) no
embedding at all, (2) embedding for viewing and printing, but not editing,
(3) embedding for viewing, printing and editing, and (4) fully installable
embedding.

Most TrueType developers set the embedding of their fonts at level 2, under
which the recipient of an electronic document can use the font software to
view and print the document, but cannot use the font to edit the document or
create new documents. Some small developers working on complicated or
specialized fonts set the TrueType font for no embedding at all. In each
case, the person creating the font determines what can be done with it by
selecting the level of permitted embedding.

Virtually no commercial font developers set their embedding bits at level 4,
because fully installable embedding means that the recipient of a single
electronic document automatically and permanently acquires all of the font
software contained in that document, the same as if he or she had purchased
it. For example, if a person creates a document in Microsoft Word using a
fully embeddable font and sends that document via e-mail to a recipient, the
recipient, upon opening the document, automatically and permanently installs
into his or her computer the entire font used to create the document. This
recipient now has complete use of the software for all future documents, as
if he or she had purchased it. Further, any electronic document created
using this font by the recipient can be forwarded to yet another
third-party, and so on. The destructive nature of a fully embeddable setting
to a copyrighted font is obvious.

We have become aware of the distribution of a program that has only one
function, that is, to alter the embedding bits on a TrueType font to make
the font fully embeddable. In other words, even though the creator of a
particular TrueType font may have carefully limited the distribution of the
font by setting the embedding bits to level 1 or level 2, this software
alters these bits to a level 4, installable embedding.

When Agfa Monotype privately demanded that the author of this program stop
distributing it, the author refused. One ground claimed for refusing is that
there was a legitimate purpose for the software, namely to change the
embedding bits on font software the author created so he could make his own
fonts fully installable. It is difficult for us to understand why the author
of a font would need software to alter embedding bits in his own font, since
the tools widely used to create TrueType fonts allow the creator to specify
or later change the level of desired embedding. Nevertheless, the author's
asserted belief that his software is protected by a supposed legitimate
purpose, even if there is a legitimate purpose, is erroneous.

The Digital Millennium Copyright Act ("DMCA") makes it a violation of
federal law to distribute a product that circumvents a "technological
measure" that controls access to a copyrighted work. Embedding bits are
obviously such a technological measure, the program at question clearly
circumvents the embedding bits, and the fonts containing the embedding bits
are copyrighted. One court recently held:

Under the DMCA, product developers do not have the right to distribute
products that circumvent technological measures that prevent consumers from
gaining unauthorized access to or making unauthorized copies of works
protected by the Copyright Act. Instead, Congress specifically prohibited
the distribution of the tools by which such circumvention could be
accomplished.

Another recent court recently held:

By prohibiting the provision of circumvention technology, the DMCA
fundamentally altered the landscape. A given device or piece of technology
might have a 'substantial noninfringing use . . . but nonetheless still be
subject to suppression under [the DMCA].

We have gone to some lengths to explain our position, but we have done so
because the vast majority of software developers wish to respect the
property rights of others and want to understand and obey the law. Further,
we feel that an accurate understanding of the issues will result in any
fair-minded person seeing the merits of Agfa Monotype's position. Insofar as
TrueType fonts are concerned, therefore, this much is clear: Embedding bits
are "technological measures" which cannot be circumvented without running
afoul of the DMCA. Embedding bits are also an important method by which the
creator of font software can protect the results of many hours of his or her
labor and years of expertise. Agfa Monotype will always seek to have
individuals conform their conduct to the requirements of law by explaining
its position to them and we will continue to do so here. However, once we
have explained and an individual persists in damaging the property of both
Agfa Monotype and the many individual type designers who license their fonts
to Agfa Monotype, we are prepared, however reluctantly, to take necessary
action to protect our respective rights.




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