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Exciting new use of DMCA! Banning font-twiddling software!
- Date: Wed, 1 May 2002 21:38:13 -0400
- To: firstname.lastname@example.org
- Subject: FC: Exciting new use of DMCA! Banning font-twiddling software!
- From: Declan McCullagh <email@example.com>
- Cc: firstname.lastname@example.org, email@example.com,firstname.lastname@example.org, email@example.com,firstname.lastname@example.org
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:
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
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.
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
[ 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
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.
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
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
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
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.
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
I trust that this clears up the issues between me and your clients.
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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