Type Design: Flourishing or Floundering?

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Eric Hague's picture
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Type Design: Flourishing or Floundering?
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I'm working on putting together a law review comment topic that will focus on the IP protections afforded to typeface design within various American IP regimes.

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'd like your input on the following question:

Is type design prospering anyway? Or is the field arguably a fraction as explosive as it would be were the supposed incentives to create better protected?

Ray Larabie's picture
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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.

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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.

Eric Hague's picture
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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.)

Thomas W Phinney's picture
Joined: 3 Sep 2002 - 11:00am
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"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

Christopher Timothy Dean's picture
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@Ehague: Is this a personal, professional or academic project?

Ray Larabie's picture
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Well said, Nick.

Eric Hague's picture
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@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.

Thomas W Phinney's picture
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> 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.

David Berlow's picture
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>Type Design: Flourishing or Floundering?

Both, depending on where you look. o

Matthew Butterick's picture
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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.

John Hudson's picture
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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.

Eric Hague's picture
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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.

Christopher Timothy Dean's picture
Joined: 22 Oct 2006 - 10:49pm
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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.

Richard Fink's picture
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@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

John Savard's picture
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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.

Nick Shinn's picture
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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.

Ray Larabie's picture
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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.

Nick Shinn's picture
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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.

Mark Simonson's picture
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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).

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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.

Reynir Heiðberg Stefánsson's picture
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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.

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@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.

darrel's picture
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See also: RIAA, MPAA, Software Industry

Nick Shinn's picture
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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.

Russell McGorman's picture
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In answer to the question, I shall make a font of flounders with flourishes.

cheers.

Eric Hague's picture
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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

Christopher Timothy Dean's picture
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Did you know there are law review articles out there that just directly cite typophile threads?”

References?

Eric Hague's picture
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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).

Thomas W Phinney's picture
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"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

David Berlow's picture
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>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!? :)

Nick Shinn's picture
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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.

Richard Fink's picture
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>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.

Richard Fink's picture
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>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!

John Hudson's picture
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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.

Thomas W Phinney's picture
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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

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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.

Matthew Butterick's picture
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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.

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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.

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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.

Matthew Butterick's picture
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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.

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@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.

Matthew Butterick's picture
Joined: 28 Jul 2009 - 3:14pm
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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.

John Hudson's picture
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Joined: 21 Dec 2002 - 11:00am
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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?

Thomas W Phinney's picture
Joined: 3 Sep 2002 - 11:00am
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"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....

Chris Lozos's picture
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Joined: 25 Feb 2004 - 11:00am
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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.

Thomas W Phinney's picture
Joined: 3 Sep 2002 - 11:00am
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"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.

John Savard's picture
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Joined: 23 Nov 2009 - 8:42pm
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@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.

James Todd's picture
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Joined: 16 Apr 2011 - 8:58pm
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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.

John Hudson's picture
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Joined: 21 Dec 2002 - 11:00am
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the most likely deterrent is...

A few broken legs?

Chris Lozos's picture
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Joined: 25 Feb 2004 - 11:00am
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@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 ;-)