Re[2]: Protecting WebFonts

Brad Chase wrote:

>> There's a difference between use and distribute.  Publishers have the
>> right to use the fonts they bought.  They don't have a right to
>> distribute them.  I'd like to find a method which will allow publishers
>> to use fonts on the web without distributing them, because that's all
>> they have the right to do.  TrueDoc and such are methods for
>> distributing the fonts as well as using them.
>
>TrueDoc is a technology that allows scaleable outlines to be rendered on a
>remote viewing system. It is designed to facilitate the use of fonts, not
>their
>distribution.

TrueDoc creates new versions of existing fonts and distributes those
new versions.  In any country where the outlines are protected, that
distribution is illegal if it's without the permission of the copyright
owner for the original outlines.  In the US, it's illegal for dingbat
fonts and for fonts with design patents.

You could equally say that a system which simply displayed the new
John Grisham novel on multiple remote viewing systems is ok.  It's
not, and it's even worse when the user can choose to print out the
new John Grisham novel as well.  "It's designed to facilitate the use
of the John Grisham novel, not its distribution."  It still involves
its distribution, and is hence illegal.  (Unless there's a valid fair
use defense, which I discuss below.)

>TrueDoc font files cannot be installed directly into operating systems,
>and are
>of no use to non-TrueDoc programs. The viewing system must have a TrueDoc
>enabled user agent in order to display the outlines. TrueDoc's native font
>interfaces (a) build temporary fonts (in memory) in the client system's native
>format and (b) install them as PRIVATE fonts, unavailable to other apps or to
>the user via a font selection dialog.

Sure, if you play by the rules.  But Bitstream makes the software
which will convert a font back into an installable font.  Even if
Bitstream made that software unavailable, someone else could write
it.  What's the situation then?  Bitstream says that it's ok to
distribute the TrueDoc font file, so anyone who receives a TrueDoc
font file must have a legitimate copy of that TrueDoc font file.  They
haven't had any enforceable license provisions placed on that copy.
If they then choose to convert the TrueDoc font file to an installable
font, they have a legitimate copy of the font which they can make
further copies of and distribute according to Bitstream's legal
analysis.

Is that what Bitstream wants?  Maybe not, but it's an unavoidable
consequence of Bitstream's position.

>TrueDoc is licensed to legitimate developers for specific implementations.
>While
>the technology certainly *could* be manipulated to illegally copy fonts, any
>developer that did so would clearly be prosecutable. And you better
>believe that
>anyone using TrueDoc without a license (the most likely case for any 'font
>crawler' type use) will be hearing from Bitstream's legal department.....

A licensed developer can distribute TrueDoc font files.  Anyone can
receive them, and at that point can do whatever they want with the
font files, according to Bitstream's legal analysis.  (You need the
TrueDoc Character Shape Player to use the font file the way Bitstream
intends, but there's no practical way to ensure that the font file
is only used with Bitstream's CSP, and thus no way to enforce any
licensing restrictions on the recipients saying that the only allowable
use of font files is with the documents they came with.)

>> Adobe and Bitstream have put forth technologies which allow anyone
>> with a copy of their fonts to redistribute it.  That's what TrueDoc
>> and its kind do.  If they don't want to give away their fonts, they
>> screwed up.
>
>NO. On two counts.
>
>1) TrueDoc works with all font formats from all foundries - not just
>Bitstream fonts.

If it only worked with Bitstream fonts, I'd be happy.  However, what
I said was that it _does_ work with Bitstream fonts, not that it _only_
works with Bitstream fonts.

>2) As discussed above, TrueDoc is for facilitating the use of fonts,
>not the illegal distribution of them.

See above.  TrueDoc involves the distribution of typefaces.  That's
how the font files get from the publisher to the user.

>> Unfortunately, your proposal includes distributing the fonts.  Yes, you
>> want to protect them.  Yes, if everybody plays along, the fonts will
>> remain secure.  But I don't want to gamble on that.  If everybody
>> played fair, we wouldn't have pirated software and bootleg CDs.
>
>As long as copying fonts is made difficult enough, only someone trying to
>bootleg fonts for money will bother with it, and we have a successful
>history of prosecuting these cases.

That's why I have some hope of technologies like TrueDoc being shut
down.  I think I could win a legal case against Bitstream for
contributory infringement.

Hypothetical situation: Person A buys my font Arboreal.  Person A also
buys a TrueDoc distribution license.  Person A distributes a TrueDoc
font file created from Arboreal to Persons B, C, and D (along with some
document which uses Arboreal somewhere in it).  Those recipients
choose to convert the TrueDoc font file (call it Arboreal2) into a normal
installable TrueType font (call it Arboreal3).  Who owns the copyright on
Arboreal2 and Arboreal3?

If this conversion were done in the US on a text font, nobody would own
the copyright in the US on Arboreal2 or Arboreal3, and we now have a
version of Arboreal which can be freely distributed in the US by anyone.

However, Arboreal is a dingbat font.  I own the copyright on Arboreal2
and Arboreal3, even in the US.  When Person A distributes Arboreal2 to
Persons B, C, and D, that's three unauthorized copies of my font.  However,
no provable harm has occurred at that point, so the fact that the copies
are unauthorized is irrelevant.  When further redistribution of Arboreal3
takes place, however, that is actionable.

Who knew?  Bitstream told everyone that their process had removed the
copyright from Arboreal2, so Arboreal2 could be freely distributed.
If Arboreal2 has no copyright, then neither does Arboreal3.  Persons
B, C, and D are now in the same position as someone who receives a
copy of the new John Grisham novel with a note saying that it's not
protected by copyright.  The person who wrote that note is liable for
contributory infringement as soon as further copies are made (ask any
IP lawyer).

Bitstream's current version of its TrueDoc white paper dances around the
issue of whether Arboreal2 and Arboreal3 are under copyright.  A previous
version explicitly claimed that they were not, and after a lot of e-mail
from me that claim was removed.  Now Bitstream says that creating Arboreal3
isn't what Bitstream wants.  However, Bitstream doesn't have a legal leg
to stand on in preventing Persons B, C, and D from distributing Arboreal3.

If SWFTE made a version of Arboreal by printing out a copy, scanning it
in, and recreating it, they'd still be violating my copyright on the
font even in the US because it's a dingbat font.  What Bitstream is doing
is no different in effect, only in intention.

I want web fonts.  But the only way I'm going to be satisfied that my
rights are being protected is if Bitstream acknowledges explicitly that
I own the copyright on Arboreal2, and explains that as long as Arboreal2
is linked to a document, distribution of Arboreal2 is fair use and thus
legal.  However, Arboreal3 would not be fair use, and would not be legal.

That acknowledgement has to be prominent in all the explanations of how
TrueDoc works.  Otherwise there is nothing to stop someone from thinking
that Arboreal3 is legal (even if Bitstream says that it "disapproves").

Until Bitstream does that, I believe that Bitstream is responsible for
the creation and redistribution of Arboreal3.  There's a lot of complications,
of course.  TextFont2 isn't actually copyrighted in the US, and neither is
TextFont3, but they may be copyrighted in Germany (for example).  Fair use
laws differ from country to country (and may disappear in the US).  The
best defense is really to satisfy small foundries that their fonts will be
protected, and Bitstream is not doing that at the moment.

I'd also be satisfied, though pretty depressed, by a convincing legal
argument that I'm wrong, and that I don't own the copyright to Arboreal2
and Arboreal3, even for dingbat fonts and even in countries like Germany
which protect typeface designs.  But I haven't heard any such argument,
and I do understand how TrueDoc gets around the copyright on control
points and hinting.

See, Arboreal is a font for academic linguistics.  That's a limited market.
If someone uses TrueDoc and creates Arboreal3 and thinks it's legal to
distribute it, it won't take long before the market for Arboreal is
completely dead.  I've then lost a lot of sales, which hurts my business.
All the arguments about how it'll just spark more sales later are nonsense
for my market.  And all the arguments about how Bitstream didn't mean for
it to happen also don't help my business much after that happens.  Maybe
nobody will ever create Arboreal3 for any small foundry font, and so this
will never be an issue.  But I don't want to count on that, and I'm
surprised that Bitstream's legal department is counting on that.

Yours,
  Michael Bernstein
  Cascadilla Press
  michael@cascadilla.com

Received on Monday, 26 August 1996 12:40:04 UTC