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SSi vs Adobe (take III)

Yet another high-level discussion in 2011 on the topic of copyright and fonts. Richard Finch posted this beautiful argument on January 30, 2011, on why in the United States, fonts are in the public domain. Reproduced verbatim. For comments and discussion, visit the typophile link.

First, it has to be noted that all typefaces are unprotectable and in the public domain in the US. It doesn't matter if the typeface was created yesterday or 400 years ago. The title of this thread carries the implication that it could be otherwise - that one typeface could be "more" public domain than another. Hah! Ain't so.

In case law, there are four cases that appear to have special significance in light of the Adobe v SSI ruling:
L. Batlin And Son v Snyder decided by the US Court Of Appeals, Second Circuit in 1976.
Bridgeman Art Library v Corel Corp decided by a US District Court in 1999.
Meshworks v Toyota Motor Corp decided by the US Court Of Appeals, Tenth Circuit in 2008.
Lastly, there's the Supreme Court opinion from 1991, Feist v Rural.

When you read these opinions along with their cross-citations in total, it's hard see Whyte's decision in Adobe v SSI as anything other than an abberration.
(And BTW - in Whyte's decision there is a quotation from an Announcement in the Federal Registry by the US Copyright Office titled "Registrability Of Computer Programs That Generate Typefaces" that is completely misinterpreted. If you read the whole thing (2 pages) it's perfectly clear that the "computer programs" it refers to are what we would normally refer to as rasterizers, not TrueType or PostScript fonts. And it is carefully worded to make no claims as to the validity or level of copyright protection that may be obtained by registration, no matter how you interpret what kind of software it references.)
This is just one of several glaring errors in the SSI decision. IMHO.

My guess is that King was not a sympathetic defendant. And Whyte was happy to go along with a cherry-picking of the facts and precedent in order to find against him. It happens, and maybe King had it coming and the good guys won. Who knows.

Anyway, it's impossible to reconcile SSI with these other decisions.
Adobe lucked out, that's all. Speaking only for myself - I would have to have especially opaque blinders on not to consider fonts, all fonts - certainly, absolutely, the outlines - as public domain. Period.
Meshworks especially, being an appellate decision, has a far greater weight of authority than SSI. And it would, I imagine, be controlling in any "fonts as copyrightable software" case since the facts are nearly identical.

Before the advent of computers all typefaces were public domain. With the advent of computers, a claim was made that, as digital creations, typefaces could be copyrighted as software.
The courts, on the whole, say this ain't so. It's pretty clear, frankly.

And this might partially explain why Uli's dog hasn't barked, that is, why there's been no infringement suits in the US for thirteen years. (But legal costs and the overall effectiveness of licensing can explain it, too.)

Note that licensing is contract law and another matter entirely.

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Luc Devroye ⦿ School of Computer Science ⦿ McGill University Montreal, Canada H3A 2K6 ⦿ lucdevroye@gmail.com ⦿ http://luc.devroye.org ⦿ http://luc.devroye.org/fonts.html