Adobe, Acrobat face possible DMCA challenge over PDF font embedding
Some font vendors adopting more restrictive embedding licenses, adding costs

6 September 2002

By Kurt Foss, Planet PDF Editor

There's no truth to the rumor -- so far as we know -- that Adobe Systems moved its headquarters some years back to downtown San Jose so its corporate legal eagles wouldn't have far to travel to the U.S. District Court of Northern California. It probably only seems that way sometimes, but given recent headlines, it sounds like a plausible cost-cutting move.

A news release distributed by Adobe early this week suggests the lawyers cabbed over to the courthouse again fairly recently on another Digital Millennium Copyright Act-related matter. The result: "Adobe Files Suit to Protect Customers' Rights to Use Fonts."

The result last time -- the Adobe-inspired arrest of ElcomSoft software programmer Dmitry Sklyarov in mid-July 2002 -- quickly became a public relations hot potato for the company, with protests against the company's action breaking out nation-wide, and in a number of other countries, too. While the company eventually withdrew its support for the young Russian's prosecution for alleged DMCA violations -- the criminal indictment against his company still stands -- there's clearly still some outstanding ill will in certain quarters that surfaces quickly when Adobe breaks into the news. That predictable reaction was in the news again this week.

But first: If Adobe suffered slings and arrows from its previous close encounter with the still-controversial DMCA, why is the company back in court on another alleged DMCA infraction situation? Answer: For one reason -- this time Adobe is facing allegations of breaking the copyright law.

Adobe's news release explained it was taking legal action reluctantly -- certainly believable, all things considered -- and only because other avenues of resolution had failed to resolve the disagreement with Agfa Monotype and ITC over font-embedding issues. Details on the exact nature of the dispute were sketchy in Adobe's initial news item, and official representatives were reluctant to offer other details when Planet PDF inquired.

The lack of facts didn't deter some discussion lists and Web sites from speculating, and in many cases Adobe didn't appear to be getting the benefit of any doubt. Some felt its characterization as more or less being forced to file suit on behalf of its users to be disingenuous; in reality, some said, it was being pursued for the company's own long-term financial interests.

One account that became the default basis of fact for lack of same elsewhere was titled "Adobe Takes Font Partners to Court," a bylined article posted at the Internet News Web site. The author sought to fill in the blanks on the brewing corporate clash, interpolating from other published materials to supposedly pinpoint the crux of the apparent standoff between Agfa Monotype and Adobe:

"The move comes after Agfa Monotype, in May, accused Adobe of violating the DMCA -- though it did not call Adobe by name, referring to it only as 'a software developer.'"

"In May, Monotype said Adobe's Acrobat product improperly alters its fonts and sets their embedding bits at level 4, meaning that those who receives a document using that font can install that font on their computers without ever having to license the font from Monotype or its subsidiary. Monotype said the software does this, even when the font's creator has deliberately set its embedding level at level 1 (no embedding at all) or level 2 (embedding for viewing and printing, but not editing)."

Adobe's own Acrobat in violation of the DMCA? The account seemed too good to be true for anyone still looking to extract a measure of justice from Adobe for wielding the DMCA heavy-handedly against ElcomSoft -- along the theme of a company that lives by the DMCA might also find itself in the role of accused rather than accuser. Unfortunately for the justice-seekers, there's one small flaw in the scenario outlined by the Internet News article: the author got some facts wrong.

Anyone who's been around Acrobat for a couple generations might have picked up on the flawed explanation, as there was a prolonged discussion and debate on Acrobat's font embedding capabilities following changes Adobe made with version 4.0.

First, the short version: Acrobat -- technically, the Distiller component of the commercial Acrobat product -- does not alter a font's so-called embedding bit -- information stored inside the font that indicates whether embedding is allowed, and if so, to what degree. Rather, Distiller only checks whether a font allows embedding and, based on the information it finds, either allows embedding or not. It has no mechanism for changing a font not licensed for embedding to one that allows it. Many a Distiller user has received an error message announcing that a font could not be embedded in a PDF file -- based on the stored embedding bit information -- despite the author's desire.

Font Embedding Properties Tool

Slightly longer, with background: Acrobat Distiller 4.0 initially was more strict than was required in certain instances -- it sometimes disallowed embedding of a certain font even though the author's intent was to allow it. Several years back I worked with colleague Rich Sprague, a knowledgeable prepress user of and advocate for PDF, to detail the circumstances on how and why this happened, which we shared with Adobe's Acrobat team. The glitch turned out to be a flaw in how Fontographer arbitrarily set the embedding bit in user-created fonts. After verifying the problem, Adobe made a change to Distiller 4.0 to accommodate the specific situation -- so that Distiller was not being misled into forbidding embedding where the font specifically and expressly didn't disallow it. Throughout our prolonged discussions with Adobe, the Acrobat team members were very clear that Adobe was bound -- as a font company itself -- to uphold the copyright and licensing terms of third-party font vendors, whether or not they agreed with a particular company's stance on font embedding.

The Internet News article misrepresents how Acrobat deals with embedding bit information. But more importantly, the author's interpretation of the unnamed software developer cited in a Monotype memo "Embedding and the Digital Millennium Copyright Act" released in May is nothing more than a guess -- and an incorrect one. We've published the full memo, along with some additional details and links to clarify the matter. Briefly, in May Monotype officials had warned a software developer that a program he'd developed and was making available online -- a tool aptly dubbed "embed" that allowed users to modify the embedding bit in TrueType fonts -- that his product violated the DMCA because it allowed users to circumvent Monotype's licensing for font use. Coverage of the incident led to some frank exchanges, and more criticism of corporate DMCA intimidation on several discussion lists and sites, including Politech and Salon. In reading the varied give-and-take, and comparing the details with the Monotype memo on the DMCA, it's obvious the unnamed developer is not Adobe, and the unmentioned application is not Acrobat. It's clearly a reference to the "embed" application and author.

So what *is* behind this most recent action by Adobe -- and is it driven by a bona fide concern for its users, or by some other corporate (shareholder) motive? As Adobe has so far not been forthcoming with additional details that might shed light on the reasoning for and the specifics of the disagreement, we can speculate based on certain known and relevant factors.

As mentioned earlier, Adobe has in the past shown a respect for if not an appreciation or understanding of font licensing terms, in particular related to font embedding, established by other font vendors. Adobe's own licensing allows embedding with no restrictions, as one might well expect from the company that developed Acrobat, one of that application's virtues being its ability to embed fonts in order to maintain the truest document fidelity. At the other end of the spectrum are companies that in recent years have begun sub-dividing their licensing terms and embedding policies, viewing them as an additional revenue stream in some cases.

One such case is Emigre, a font developer that currently lists on its Web site three different levels of usage for its commercial fonts, in declining order of permissibility (without additional remuneration):

  • Emigre Fonts Software License Agreement
  • Emigre Embedding License Addendum
  • Emigre PDF Embedding License

If you read the fine print in the main Emigre license, you'll encounter the following paragraph:

FONT EMBEDDING:
Embedding of the Emigre Fonts Software in digital documents or in any other form is governed by a separate license agreement. If an embedding license is desired, the licensee must represent and warrant that licensee's encryption of the embedded Emigre Fonts is secure enough to prevent any access or use by others."
So before you can determine how you may use a font purchased from Emigre, you have to review part 2, where you'll learn -- and where you, the Acrobat/PDF user, might begin to appreciate Adobe's recent legal maneuvering -- the additional terms if you're thinking of embedding the font you purchased (you own a license, no the font software) in a PDF file:

"This Addendum allows for restricted distribution of portable digital documents, in Adobe Acrobat PDF format.

I. PDF EXCHANGE BETWEEN LICENSEES

"While the Emigre Fonts EULA generally prohibits the embedding of fonts in digital documents, an exclusion is made if the licensee can guarantee that all recipients of the PDF (and embedded fonts) are covered by a user license from Emigre. For example, if a font user and the service bureau are both licensed for the fonts, then transfer of font embedded PDF files is allowed between these two parties."

"PDFs containing embedded fonts may be exchanged freely between two parties, subject to the following conditions:

  1. Both parties must be licensed for the fonts being embedded.
  2. Subsetting must be used for any font embedding.
  3. The PDF must have security set to allow only printing and viewing; it must prohibit changing, selecting, or adding."

And if you don't meet the requirements set in the License Addendum and still want to use the font in a PDF, you'd be well advised to understand the still-additional terms laid out -- and the additional costs incurred -- by proceeding:

"The PDF license allows distribution of Adobe Acrobat PDF documents with embedded fonts; the license fee is based upon the following usage categories:

Non-Editable PDF:

The fonts must be SUBSET embedded. The PDF must be set to View & Print only (the PDF must be set to no editing.)

There are 2 choices; per use, or flat annual fee:

  1. Per Use: The per use fee of $00.10 (10¢) applies per pdf file, per font. For example, sending out a quarterly newsletter to 50 subscribers with two fonts would be $10 per issue (50 x .10 x 2 = 10), or $40 per year.
  2. Flat annual fee: For a flat annual fee of $150.00 a licensed user can distribute an unlimited number of subset embedded pdf files, regardless of number of fonts used, within a period of one year. For example, sending out a quarterly newsletter to 50 subscribers with two fonts would be $150 per year.

Editable PDF:

The PDF may be viewed, printed and edited.

For editable PDF files, the pricing is the same per user as our regular font printer license upgrade, except the single location restriction does not apply. (So, each remote PDF user counts as a printer/output device.) For example, sending out a quarterly newsletter to 50 subscribers with two fonts would be a one time fee of $534.30 (267.15 x 2)

As the creator of PDF documents using fonts with similar licensing terms and financial expectations, you now font that your choice of a font may also dictate other factors that may or may not be appropriate for the file -- security settings, printability, distribution, editability, etc. You can begin to see a trend -- font developers seeking to maximize the financial gain from its digital resources -- that Adobe would be compelled to try to counteract. Is Adobe acting for the company's own self-interests? No doubt that's a consideration -- although as a competing font vendor, some might argue it might just as easily allow third-party font vendors adopting these restrictive, costly licensing terms to see what the growing marketplace of PDF users decides after being enlightened.

Is Adobe acting for the good of its Acrobat customers, as it suggests in its news release? Having now seen the fine print in one font company's licensing terms, Tell us what YOU think!


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