Type designers are calling it a "landmark decision," but to Paul King of Southern Software, this week's summary judgment by US District Judge Ronald Whyte is "bad law," ripe for appeal and overturning.
At issue was the status of type design under US copyright law in the age of digitized typefaces. Currently, type designs are not protected by copyright law in the United States. Should the code that determines the appearance of a font be legally considered an artless "utilitarian device," like a wrench, which produces the uncopyrightable type design; or is the code more like a software program - the result of a creative process, and thus eligible for protection against copyright infringement?
The case pit King - who has built a US$500,000-a-year business by offering thousands of fonts on bargain CDs - against Adobe Systems, an early pioneer in the digitized typeface industry. In his judgment issued on Thursday, Judge Whyte ruled that King had infringed on Adobe's copyrights by taking the code for an Adobe font called "Utopia," modifying it by scaling it up slightly and shifting the x-axis, and then licensing it to The Learning Company under the name "Veracity."
To Chris MacGregor, the publisher of the Internet Type Foundry Index, Whyte's decision was the legal breakthrough for which type designers like himself have been waiting for years - a ruling that fonts, like other forms of intellectual property, should be copyrightable.
Calling King a "font pirate ... the number-one bad guy," MacGregor said the ruling should send a message to those who profit by appropriating the work of professional type designers. In the days before desktop publishing, designing a new font in wood or metal could take months. Now, MacGregor observes, stealing a font can be as easy as opening a font file, scaling it to 101 percent, selecting the "clean-up paths" command, and giving the file a new name.
"It takes 30 seconds," MacGregor says. "What the judge's ruling does is to make those 30 seconds illegal."
MacGregor blames the widespread appropriation of font code for making the field of type design more "cutthroat." MacGregor insists that bringing font design under the protective umbrella of copyright law would be good for the consumer: It would guarantee higher quality, and even encourage price reductions, as designers could earn more returns on their creativity, and be less apprehensive about putting the fruits of their labors on the open market.
Type designer Brian Sooy, who runs the modest, one-man Sooy Type Foundry, says he "fell in love with letterforms" when he took up calligraphy at age 13, and began creating digitized fonts on his first Macintosh. Sooy welcomed Whyte's ruling as "an intermediate step toward protecting the design of the type itself," and remarked that "if you could buy a Fard instead of a Ford, the Ford corporation would sit up and take notice. On the Net, people just pass these fonts around."
Ian Feinberg, the chief counsel for Adobe in the case, said that his client was "extremely pleased" with Whyte's ruling. Feinberg said the judgment ensured that Adobe's "font software is now subject to the same protection as its other software."
King, however, says that his lawyer will be filing an appeal within the week, and predicts that he will prevail. Painting himself as "the underdog" in a free-market battle with a US$800 million-a-year corporation, King says, "I'm not a pirate - I honestly felt that we were doing the right thing, and still do."
King claims that Adobe was overreaching in their suit against him, "trying to break new ground and get something they've never had before" - a level of legal protection for their products that was clearly not in line with existing statutes and the spirit of past congressional decisions regarding font copyrights.
King says that while Adobe sells fonts at high prices "like diamonds," Southern Software sells them "like M&Ms," so that they're within reach of middle-income consumers looking for a variety of fonts to dress up the office newsletter, for instance.
Until the appeal ruling, which could take a year, King vows, "We have the will to continue. We're open for business, and we're selling great fonts."
