Formats and Licensing (Re: A way forward)

This is a claim that has been made often in
these discussions:

On Fri, 2009-07-24 at 10:44 +0200, karsten luecke wrote:

> Type foundries will not license raw TTF/OTF fonts
> for @font-face linking. 

I don't wish to start a big long discussion
where a bunch of non-lawyers try to figure
out the law.   And, I stipulate that the very
fine legal staffs at some foundries have 
an opinion on this that differs from mine.
I just want to note in passing:

"Format shifting" has a lot of legal protection.
The format conversion of a font file would, 
in this case, not comprise a circumvention of a
technological means of limiting access.

As a kind of test, imagine two scenarios:

In one scenario, a font lawfully appears in format X,
which is not TTF/OTF, on the web.  A user, Alice,
has a fancy browser program.   Alice's browser program
can directly display fonts only in TTF/OTF.  However,
it has a feature that when it is given a font in
format X, it automatically converts that to TTF/OTF.
Given Sony v. Universal (the famous betamax case),
Alice is likely not to be infringing and the browser 
maker unlikely to be guilty of contributory infringement.

In the other scenario, the same conversion occurs
but on the server side.  Bob, who has licensed the font
for web use, did that conversion and serves up the
converted file.   It is hard to see how Bob's action
could be infringing if Alice's is not.  This is 
especially so because if Bob could not do that format
conversion, he might not have bought the license in
the first place - the format conversion increases
rather than diminishes the commercial value of
the font license.

I see but one way in which Bob's performing the conversion
could be infringing and that is "format X" contains
information vital to the work - the type face - which
can not be adequately represented in TTF/OTF.  In that
case, the conversion would alter the work in a significant
way.  That would be an act of creating a derived work
which, we presume, Bob is not licensed to do.

That suggests that if the type foundries wish to 
"not license for TTF/OTF on the web" then they would
be wise to support the drive for a font file format
that includes rich meta-data which, in the ordinary
course of things, is presented to users (making it an
essential part of the copyrighted work).

The .webfont proposal might satisfy that requirement.
The notion of a wrapper containing HTML meta-data
might more clearly satisfy that requirement.

-t

Received on Friday, 24 July 2009 18:09:23 UTC