Copyright (and, more broadly, with apologies to Richard Stallman, intellectual property law in general) is a divisive issue in free-market circles. The three most common positions are, summarized I hope reasonably well: (1) Intellectual property is property and therefore should have identical legal protections. If you use my car without permission, even if you return it, it's unlawful. Same with piracy -- criminal penalties are appropriate. (2) Intellectual property is not property at all -- it is a government-created fiction that did not properly emerge through common law and is subject to all the usual public choice criticisms. Copyright and patent law interfere with my ability to use my tangible property as I see fit and should be dispensed with altogether, or nearly so. (3) Copyright/patent law is necessary, for economic reasons if nothing else, but has gone too far. Let's repeal the DMCA/NET Act/copyright term extension, fix that Patent Office, snub Hollings, and call it a day. Tom seems to fall into camp #1. My own thoughts are here (what camp I am in is left as an exercise for the reader): http://www.econlib.org/library/Columns/McCullaghintprop.html -Declan --- From: tomgat_private To: declanat_private Subject: Re: FC: Agfa replies to Politech on using DMCA to ban font editing tools Date: Wed, 8 May 2002 12:08:30 -0500 I have to tell you, I think they're right. I think "font-twiddling" is a violation of their intellectual property rights. And I think they explained it in a clear, dispassionate manner. Dec, if us free-marketeers become part of the campaign to erode intellectual property rights, we'll be undermining one of our core principles. The long-term consequences are ominous. ************************** Tom Giovanetti President Institute for Policy Innovation (IPI) http://www.ipi.org tomgat_private --- From: David Wagner <dawat_private> Subject: FC: Agfa replies to Politech on using DMCA to ban font editing tools To: declanat_private Date: Wed, 8 May 2002 11:09:08 -0700 (PDT) Cc: embeddinginfoat_private, twmat_private In an earlier note to Politech, Afga Monotype writes: >The Digital Millennium Copyright Act ("DMCA") makes it a violation of >federal law to distribute a product that circumvents a "technological >measure" that controls access to a copyrighted work. I urge readers to read the law for themselves and consult competent legal advice, rather than relying only on the above summary. The DMCA is a complex law, and these issues aren't as clearcut as one might like. I'm definitely, absolutely not qualified to interpret the law. However, I can't help noticing that 1201(a)(2) only prohibits devices whose primary purpose was unauthorized circumvention, or that has only a limited commercial significant use other than unauthorized circumvention, or that was marketed for the purpose of unauthorized circumvention. See below. Does embed.exe fall into any of these prohibited categories? Considering the author's claims that the intended purpose of the tool was for authorized use only, the answer may not be the clearcut "yes" that Agfa Monotype's summary of the law might lead one to expect. Section 1201(a)(2) of the DMCA: (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. (3) As used in this subsection - (A) to ''circumvent a technological measure'' means to descramble a scrambled 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; and [...] http://www4.law.cornell.edu/uscode/17/1201.html --- From: Amos Satterlee <asatterleeat_private> To: "'declanat_private'" <declanat_private> Subject: RE: Agfa replies to Politech on using DMCA to ban font editing to ols Date: Wed, 8 May 2002 14:03:37 -0400 Declan: Another case of rousing the sleeping dog. Who knew about embedding bits (for that matter, who cared that much) until Agfa made a stink. Like the Deutsch Bahn flap about the Radikal pages. What is striking is Agfa's refusal to admit that there is a legitimate purpose for the application. I found it difficult to believe that Agfa doesn't use a similar utility to change the embedding bits on groups of fonts at once. When are these companies going to understand that hiding behind the DMCA and taking a myopic attitude is will not resolve these issues. In fact, these actions only engender negative PR and reinforce the perception that the corporations are out to screw real innovation. Rather, they need to recognize that there will ALWAYS BE two edges to the digital sword. In this case, Agfa would have been better served asking Tom to downplay the existence of Embed and perhaps put up a registration feature to inhibit downloads. Amos --- Date: Thu, 2 May 2002 04:18:50 -0400 To: declanat_private, tom7at_private From: Jason Young <jyoungat_private> Subject: Fwd: FC: Exciting new use of DMCA! Banning font-twiddling software! Hi Tom and Declan, I'm Canadian and a law *student* - two points against me when it comes to interpreting U.S. law - but I think Tom misreads s. 1201(a)(2)(B), by which he must mean 1201(2)(B), because the aforementioned §§ does not exist, that "embed (the alleged anti-c program) is exempt because it has substantial commercial significance". Under Sony this would have been the test (staples of commerce), but not under the DMCA, which rather, narrows the rule to limit protection for those programs which have "limited commercial value". In the words of authority Nimmer on Copyright, the DMCA "ventilates" Sony's broad force. Still, I can't help but wonder what Agfa is thinking. They just bought themselves millions in bad publicity. Jason --- Jason Young http://www.lexinformatica.org http://www.privaterra.org 830F AE11 91C5 946E CF80 684C F13C 79C3 46E1 1518 --- From: "Matt Del Vecchio" <matt.delat_private> To: <vikki.quickat_private>, <enquire.europeat_private>, <mark.larsonat_private>, <david.dewittat_private> Cc: <tom7at_private>, <declanat_private> Subject: RE: Exciting new use of DMCA! Banning font-twiddling software! Date: Thu, 2 May 2002 09:27:55 -0500 Dear Monotype, how can you call yourselves Americans when you attempt to bully the little guy and pervert the law such? This program is clearly a useful tool for font designers like myself. do you really think your strong arm tactics are the right thing to do? why is it big companies think they ought to change the world to fit their opinion, rather than just accepting things like the rest of us? what makes you so special? look, all youre doing is making a *bad name* for yourself. i already hate your business--wow! your lawyers must be very effecient! is that what you really want for yourselves?? sincerely, matt -- Matt Del Vecchio http://www.semi-suave.com --- Date: Thu, 02 May 2002 02:53:27 -0500 To: declanat_private, politechat_private From: Sanford Olson <sanfordat_private> Subject: Re: FC: Exciting new use of DMCA! Banning font-twiddling software! Cc: vikki.quickat_private, enquire.europeat_private, mark.larsonat_private, david.dewittat_private, tom7at_private Don't forget to sue Microsoft. Microsoft's DEBUG program, which is included with every copy of MS-DOS and every copy of Windows, can easily modify the Embedding bits of a font too. - Sanford --- From: "George M. Ellenburg" <georgeat_private> Organization: The Ellenburg Family - http://www.ellenburg.org/ To: declanat_private, politechat_private Subject: Re: FC: Agfa replies to Politech on using DMCA to ban font editing tools Date: Wed, 8 May 2002 13:00:23 -0400 X-Mailer: KMail [version 1.4] Cc: tom7at_private, embeddinginfoat_private -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Wednesday 08 May 2002 12:25 pm, Declan McCullagh wrote: > Under the DMCA, product developers do not have the right to distribute > products that circumvent technological measures that prevent consumers from > gaining unauthorized access to or making unauthorized copies of works > protected by the Copyright Act. Instead, Congress specifically prohibited > the distribution of the tools by which such circumvention could be > accomplished. So should Hex Editors be outlawed, too? I mean, come on... a Hex Editor can be used to open up the .TTF font and provides a mechanism that "circumvent[s] technological measures" and allows consumers to gain unauthorized access to works protected by Copyright. What about the "copy", "cp", "tar", "cpio", and "zip" commands? Should these be outlawed, too? I mean, come on... I could zip up the .TTF files and (omigod!) Email them to my colleague. Sheesh. But, I'm grateful for companies like Agfa. They, and Adobe, and everyone else who brings up these stupid little arguments only further add to mine, and others', portfolios of examples as to how the DMCA is being abused, and is a bad law to begin with. Regards, - -- George M. Ellenburg <georgeat_private> 3 Years and counting of being 100% Microsoft-free; and much more productive. Proud user of ASK <http://www.paganini.net/ask/>, the Active Spam Killer! --- -- Mark Twain -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.6 (FreeBSD) Comment: For info see http://www.gnupg.org iD8DBQE82VmwFItzMEWZZdgRAqwPAJ9U8alJLmMvdQ6AY0up//4Fz8LGUwCfbsvF DIlzE+021M8fX454YZ9wk6k= =dJPH -----END PGP SIGNATURE----- --- Date: Wed, 8 May 2002 13:41:58 -0400 From: "Rev. George" <georgeat_private> To: Declan McCullagh <declanat_private> Subject: Re: FC: Agfa replies to Politech on using DMCA to ban font editing tools -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 #embeddinginfo remarked: > The Digital Millennium Copyright Act ("DMCA") makes it a violation of > federal law to distribute a product that circumvents a "technological > measure" that controls access to a copyrighted work. Embedding bits are > obviously such a technological measure, the program at question clearly > circumvents the embedding bits, and the fonts containing the embedding bits > are copyrighted. One court recently held: I wish that Agfa had continued their quotation from the DMCA. It might read like this: The Digital Millennium Copyright Act ("DMCA") makes it a violation of federal law to distribute a product that circumvents a "technological measure that effectively controls access to a work protected under this title." (Sec. 1201 Paragraph A according to http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html ) It seems to me that the only bit they cut out was the "effective" part, which doesn't seem like an accidental edit. The problem with defining an effective access control is you fall into a dumber-than-me problem. Rot-13 isn't an effective access control for me, but to someone who is dumber than me (with respect to Rot-13 crypto) it will be very effective. So I guess the question is "Are a few bits in a well documented file format an effective access control?" But I guess when it's illegal to point out flaws in people's products (Right Ed Felton?) then anything can be effective. Anyone got a Perl one-liner that twiddles those bits? George - -- Rev. George | There's something wrong with IP laws when georgeat_private | you can't sing Happy Birthday in public. http://george.hotelling.net | GPG: 0x8175D485 - ---------------------------/ \----------------------------------------- -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.6 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE82WNlgXVRXIF11IURApPdAJwJDZcNACuDXFcgnji4X2SEBfqwRwCfaMjP giy0W7+To//GXtc5prYt3d0= =HYmk -----END PGP SIGNATURE----- --- Subject: RE: Agfa replies to Politech on using DMCA to ban font editing tools Date: Wed, 8 May 2002 11:20:16 -0700 From: "Eric Conkle" <econkleat_private> To: <declanat_private> This is as ridiculous as saying that distributing files with the read-only flag set is a form of a technological measure that controls access to a copyrighted work and by including the atrrib.exe program in its Windows line of products Microsoft is in violation of the DMCA. Perhaps the government should start developing technology courts like they did with special environmental courts; acknowledging that the complexities of the cases require a special background not just in the law, but in technology as well. Eric Conkle --- Date: Wed, 8 May 2002 13:44:13 -0500 From: Rick Bradley <fsl-discussat_private> To: Declan McCullagh <declanat_private> Cc: tom7at_private, embeddinginfoat_private Subject: Re: FC: Agfa replies to Politech on using DMCA to ban font editing tools [ permission granted to freely distribute, with attribution ] In response to: <http://www.politechbot.com/p-03505.html> * Declan McCullagh (declanat_private) [020508 12:06]: > From: #embeddinginfo <embeddinginfoat_private> > Subject: Embedding and the Digital Millennium Copyright Act > Date: Wed, 8 May 2002 11:04:11 -0500 [... "no one respects the pains of the endangered artist [megacorp]" PR babble deleted ...] > TrueType fonts have the capability to be embedded in electronic documents. > Embedding means that all or part of a font is incorporated in an electronic > document, and if that electronic document is transmitted to a third party > via the Internet or e-mail, the font software used to create the document > goes along as well. Excuse me, but I find it ludicrous to believe that if I create a TrueType font with (e.g.) Fontographer and embed that font in a document so that it's available to a person viewing my work that Fontographer is embedded along with my font. This is ridiculous to the point of stupidity. Since the people writing this should know a thing or two about fonts I can only presume this is an intentional deception. Looking at the remainder of their argument I see that this deception is fundamental to their point. > Virtually no commercial font developers set their embedding bits at level 4, > because fully installable embedding means that the recipient of a single > electronic document automatically and permanently acquires all of the font > software contained in that document, the same as if he or she had purchased > it. "Font software"? It is clear that a program like Fontographer is not embedded in documents. Either #embeddinginfo is using the term software to refer to the descriptions of a given font required to render that font (inside a piece of viewing or printing software) -- which are always necessary to use the font, and hence ALWAYS available whenever a font is included in a document (or when the font is downloaded separately outside of an embedded document) -- or they are painting with the broad brush of misinformation. TrueType specifications are far less expressive than PostScript and PDF specification (documents in which languages no one refers to as "software"). For a font producer to equate a TrueType font with "font software used to create the document" as above, and to perpetuate that mis-characterization again can only be viewed as intentionally misleading. > For example, if a person creates a document in Microsoft Word using a > fully embeddable font and sends that document via e-mail to a recipient, the > recipient, upon opening the document, automatically and permanently installs > into his or her computer the entire font used to create the document. This > recipient now has complete use of the software for all future documents, as > if he or she had purchased it. Further, any electronic document created > using this font by the recipient can be forwarded to yet another > third-party, and so on. The destructive nature of a fully embeddable setting > to a copyrighted font is obvious. To be gracious, the author is confused regarding the nature of the technology and the power of licensing. The TrueType specification is open and has been implemented by numerous authors, many unknown and unknowable. There is no requirement that a given implementation support any of the specified features, any more than there is a requirement that a given calculator support the hyperbolic cosine function. Any software which implements enough of the TrueType spec to read a font will be able to read it, and is not bound to implement any given feature. Given that, no one is bound to implement support for embedding, or to recognize hints recommending lack thereof. This means that no one is bound to prevent fonts with various embedding hints from being used in any fashion whatsoever. The TrueType embedding bits do nothing to control the copying, use, spread, licensing, rendering, printing, etc., of any font which specifies values for them. At best these are hints for renderers which choose to recognize them. To pretend otherwise is to participate in a farce. Licensing of fonts is what determines what can be done with them. If someone violates the license with their usage of a proprietary font then they are culpable and may be pursued with all applicable force under Copyright law. Since AGFA believes there is an infringement problem (otherwise why send the lawyers after Mr. Murphy?) it's odd to me that they can't find anyone to arrest for actual infringement. For infringement to occur someone must have violated a license agreement, and as far as I can tell it wasn't Mr. Murphy. > We have become aware of the distribution of a program that has only one > function, that is, to alter the embedding bits on a TrueType font to make > the font fully embeddable. In other words, even though the creator of a > particular TrueType font may have carefully limited the distribution of the > font by setting the embedding bits to level 1 or level 2, this software > alters these bits to a level 4, installable embedding. Again, misleading, and I believe willfully. A "creator of a particular TrueType font" cannot "carefully limit[] the distribution of the font by setting the embedding bits[...]" because those bits do not limit distribution. The embed program does toggle embedding bits, which is by no stretch of the imagination illegal -- how many pieces of software manipulate these bits (hint: every font editing program which supports that part of the TrueType spec.)? For authors to use such a tool is not a crime -- on the contrary, such initiative is to be commended as they increase their efficiency and accelerate the production of contributions to Science and the Useful Arts for which the Constitution provides the Limited Times monopoly of copyright in the first place. If making this tool available, or making available information about how to write such a tool, is against the law, then distribution of the TrueType specification, which provides the same information, must also be outlawed. Fortunately, since the embedding bits in a font are not an access control technology the embed tool won't be outlawed and the TrueType spec is safe. > It is difficult for us to understand why the author of a font would > need software to alter embedding bits in his own font, since the tools > widely used to create TrueType fonts allow the creator to specify or > later change the level of desired embedding. This is akin to saying "It is difficult for us to understand why someone would use dumbbells in his workout, since the Nautilus Mega2000XP allows him to exercise any muscle group." Most font creation tools are ill-suited to the job of tweaking specific aspects of created fonts, and are even worse at automation. Efficiency, flexibility, and "the right tool for the job" are all good reasons for creating specialized tools. Your lack of understanding has no bearing on this matter -- one where the embed author needs no justification for creating a specialized tool to do what most bloated tools already do as well. > Embedding bits are obviously [a DMCA-defined] technological measure, > the program at question clearly circumvents the embedding bits, and > the fonts containing the embedding bits are copyrighted. Wrong on all but the final count: the fonts containing the embedding bits are copyrighted by the embed author, Tom Murphy. On the other points (your "obviously" betrays you) as I pointed out above the embedding bits provide no control over the copying of a font. The embed program can't "circumvent" something that isn't a control measure (Have you stopped beating your wife?). > One court recently held: [ irrelevant case excerpt snipped ] > Another recent court recently held: [ ditto ] > Further, we feel that an accurate understanding of the issues will > result in any fair-minded person seeing the merits of Agfa Monotype's > position. This would be true, were one provided (which Tom Murphy attempted to do in spite of your refusal to understand the matters of law and technology at hand). The merits of your position are simply: - you are the authors of copyrighted fonts, which you have the right to protect against infringement under USC 17. - Mr. Murphy has not to my knowledge, nor by the public statement of AGFA or Mr. Murphy's accounts, infringed these copyrights, and harassing him would gain you nothing but bad PR. - His tool provides no knowledge or functionality not already available to the masses, and its existence and distribution has no bearing upon the infringement of your copyrighted works. It would appear that your lawyers are overcharging you, as are your public relations staff. > However, once we have explained and an individual persists in damaging > the property of both Agfa Monotype and the many individual type > designers who license their fonts to Agfa Monotype, we are prepared, > however reluctantly, to take necessary action to protect our > respective rights. Then why don't you go find someone who's doing that? I informed you over a week ago, in an official capacity, that your organization, due to your ham-handed handling of this matter -- regardless of the merits of your products -- has lost all future business with my organization and those of many of my associates. Let me reiterate that sentiment and ensure you that whenever I hear your corporation's name mentioned I will direct all within earshot to accounts of this fiasco. How many people do you have to infuriate before you hear the cluephone ringing? You might want to pick that up... Rick -- http://www.roundeye.net MUPRN: 381 (91 F) | the black box spits out random email haiku | a classifier along with | the training results. --- Date: Thu, 09 May 2002 09:12:30 +1000 From: Terry Collins <terrycat_private> Organization: WOA Computer Services To: declanat_private Subject: Re: FC: Agfa replies to Politech on using DMCA to ban font editingtools Declan Just a 2c comment. Agfa sounds just like a blacksmith complaining about the welding machine {:-). I've only been in IT for 18 years, but the skills I can sell to earn a living have changed many times in that period. Agfa needs to learn that lesson. --- Date: Thu, 9 May 2002 12:24:07 +0100 From: David Cantrell <davidat_private> To: Declan McCullagh <declanat_private> Subject: Re: FC: Matt Deatherage on Agfa, DMCA, and font embedding problems On Wed, May 08, 2002 at 02:25:55PM -0400, Declan McCullagh wrote: > First, you'll notice that Agfa-Monotype consistently refers to a font as > "font software." ... correctly. At least in Postscript fonts (I don't know much about Truetype) it is possible to have programming in a font. In fact, a PS font *is* just a program written in Postscript. There are several examples of, for instance, fonts which include random elements in their design, so no two instances of the same letter look exactly alike. See the Random-Font example at http://www.zi.unizh.ch/publications/ps/ for one of them, or http://cgm.cs.mcgill.ca/~luc/randomfont.html for another. -- David Cantrell | Member of the Brute Squad | http://www.cantrell.org.uk/david Willing to accept a lower economic "standard of living" in return for higher quality of life --- From: Pieter Hulshoff <phulshofat_private> To: embeddinginfoat_private Subject: Re: [DMCA_Discuss] FC: Agfa replies to Politech on using DMCA to ban font editing tools Date: Thu, 9 May 2002 17:29:54 +0000 Cc: declanat_private, dmca_discussat_private, politechat_private, "jonoat_private" <jonoat_private> Dear Sir/Madam, In response to your "A response to your thread: "Exciting new use of DMCA! Banning font-twiddling software!", I would like to make the following comments: > These individuals fail to appreciate that fonts are > valuable intellectual property and that the creator of a font, like the > creator of any other software, has the right to determine how it will be > used by the public. Copyright offers no such rights. Copyright offers rights involving copying and distribution of a product. It does not offer the copyright owner the right to control the use of its product outside that scope. > It is difficult for us to understand why the > author of a font would need software to alter embedding bits in his own > font, since the tools widely used to create TrueType fonts allow the > creator to specify or later change the level of desired embedding. Because it would save him/her the time of editing each individual font manually. I have no trouble finding such options to be helpful to the creator of a set of fonts. Please reread the correspondence regarding this case you're persuing. > The Digital Millennium Copyright Act ("DMCA") makes it a violation of > federal law to distribute a product that circumvents a "technological > measure" that controls access to a copyrighted work. It is my firm believe that the DMCA is a malformed law in this regard. It makes illegal, those tools that can be used for infringement of copyright. Why is it that such a law is acceptable within the scope of copyright law, but would seem totally foolish outside it. A screwdriver can be used for murder and burglary, yet we see no laws to outlaw screwdrivers. CSS can be used to legally view DVDs on the Linux Operating System, or to make illegal copies of DVDs. I see no reason to ban the tool, just because it can be used for illegal means. Fight the illegal means, not the tools that may be used for the illegal means. > Embedding bits are > obviously such a technological measure, the program at question clearly > circumvents the embedding bits, and the fonts containing the embedding bits > are copyrighted. I fear you make a legal error in judgement here. The fonts are indeed copyrighted, but the embedding bits neither protect the fonts from being copied, nor from being accessed. They only protect the fonts from being used in a way that you do not wish to allow. Unfortunately, copyright law (including the DMCA) does not protect you from people using your fonts in ways that you would rather not allow. I fear the DMCA does not apply in your case, but I'm sure the upcoming court case will point this out. On the other hand: you could consider saving your company a lot of bad PR by not persuing this court case, and in stead fire lawsuits against those that actually distribute your product illegally. I think you would find more support from the public that way. Regards, Ir. Pieter Hulshoff VOSN (Foundation for Open Source, the Netherlands) --- ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org -------------------------------------------------------------------------
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