Monotype: (Font) Embedding and the Digital Millennium Copyright Act
Does statement on installable embedding of fonts infer Adobe Acrobat violates the DMCA?

5 September 2002

Editor's Note: The following statement published by Monotype in May 2002 offers its position on the legality of embedding its fonts in electronic documents. We have added boldfaced emphasis (below) where Monotype alleges an unnamed software program deliberately circumvents the internal information that indicates embedding of a specific font is not allowed. Monotype claims this capability is a violation of the Digital Millennium Copyright Act (DMCA).

An article "Adobe Takes Font Partners to Court," published by Internet News on Sept. 4, 2002, alleges that the unnamed application guilty of the DMCA infraction is Adobe Acrobat, thereby ironically suggesting that Adobe Systems has violated the same U.S. law that the San Jose-based company cited to have ElcomSoft software programmer Dmitry Sklyarov arrested in July 2001. ElcomSoft faces criminal charges, with a trial set to begin this October, before U.S. District Court Judge Ronald C. Whyte in northern California. Adobe is not a party in that case.

A second irony: Adobe *has* been involved in a previous copyright case heard by Judge Whyte. In 1998, the judge ruled in Adobe's favor, declaring that font outlines are copyright-protected.

On that point, Monotype and Adobe seem to agree. [discussion continued further below]

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Monotype: Embedding and the Digital Millennium Copyright Act

Wilmington, Massachusetts, May 8, 2002

In response to an issue brought forth by a software developer, Agfa Monotype has released the following statement detailing the company's position on installable embedding of fonts.

As one of the few remaining font foundries, we at Agfa Monotype spend a great deal of our time developing high quality fonts. We then market our own fonts, as well as the fonts of many smaller type design houses and individual designers that we have licensed. Our employees and the many independent designers that we represent feed their families and pay their bills from the revenues that we together earn from licensing fonts. Unfortunately, a few people neither understand nor care about the time, effort, and expertise required to make fonts that meet today's technical standards.

It actually comes as a surprise to some otherwise knowledgeable individuals that people actually rely on the development and licensing of fonts for their livelihood. 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.

Because we are dealing with both our property and the property of small independent font developers, Agfa Monotype actively protects this property. We try hard to encourage people to do the right thing before we resort to legal action. We do this by explaining, as best we can, our position. We do so again today.

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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. The TrueType format allows the creator of a font to specify one of four different levels of embedding for the font:

  1. no embedding at all
  2. embedding for viewing and printing, but not editing
  3. embedding for viewing, printing and editing
  4. fully installable embedding
Font Embedding Properties Tool

Most TrueType developers set the embedding of their fonts at level 2, under which the recipient of an electronic document can use the font software to view and print the document, but cannot use the font to edit the document or create new documents. Some small developers working on complicated or specialized fonts set the TrueType font for no embedding at all. In each case, the person creating the font determines what can be done with it by selecting the level of permitted embedding.

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. 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.

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.

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When Agfa Monotype privately demanded that the author of this program stop distributing it, the author refused. One ground claimed for refusing is that there was a legitimate purpose for the software, namely to change the embedding bits on font software the author created so he could make his own fonts fully installable. 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. Nevertheless, the author's asserted belief that his software is protected by a supposed legitimate purpose, even if there is a legitimate purpose, is erroneous.

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:

"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."

Another recent court recently held:

"By prohibiting the provision of circumvention technology, the DMCA fundamentally altered the landscape. A given device or piece of technology might have a Îsubstantial noninfringing use . . . but nonetheless still be subject to suppression under [the DMCA]."

We have gone to some lengths to explain our position, but we have done so because the vast majority of software developers wish to respect the property rights of others and want to understand and obey the law. 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. Insofar as TrueType fonts are concerned, therefore, this much is clear: Embedding bits are "technological measures" which cannot be circumvented without running afoul of the DMCA. Embedding bits are also an important method by which the creator of font software can protect the results of many hours of his or her labor and years of expertise. Agfa Monotype will always seek to have individuals conform their conduct to the requirements of law by explaining its position to them and we will continue to do so here. 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.

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However, the implied inference in the Internet News article is not only misleading, but inaccurate. The unnamed software referenced above by Monotype is clearly a small, one-purpose application called "embed," which became the subject of much discussion in certain online circles in May when Monotype threatened the program's author of a DMCA violation because his program allowed users to alter a TrueType font's embedding bit. We reported on the matter, with a variety of related links, in our Planet PDF Weblog in mid-May.


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