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Exciting new use of DMCA! Banning font-twiddling software!



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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