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SSi vs Adobe (take II)

The Adobe versus Southern Software Inc ruling by judge Ronald M. Whyte on February 2, 1998, has been discussed on my pages, and was largely picked apart by Richard Kinch back then. In 2011, the typophile blog revisited that key ruling, and with one exception, ex-Adobe employee Thomas Phinney, the blog's visitors seem to be deploring the judgment. For more details, see here and here.

Before I quote some passages and interesting new arguments, I reiterate for the n-th time that opentype, truetype and type 1 fonts are not programs, as the term "font program" seems to be promoted by Adobe and other font sellers [for a good reason---programs are protected by copyright, and shapes of fonts are not, at least in the USA]. The US Copyright Act states that a computer program is a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. Take a text typed into a file. When that text is shown on a screen, a computer program is required to obtain the "result" that letters are shown on a screen. The text file itself is not a program. It is the input to a program. It is a dead weight, because it contains no instructions. Now take a font file. That font file, in conjunction with a text file or another data file, feeds into a program that creates a "result", a rendering on paper or screen. The font file has "dead" data---a list of coordinates of glyph outlines. These are not instructions, they are "input". They cannot execute anything---they are the objects of execution, just like the letters in a text file. Thus, for judge Whyte to repeatedly use the word "font program" in his ruling can only be explained in two ways---either he never consulted the computer science community, or he did but was influenced by Adobe's lawyers, which, in my view, have to be congratulated for their ingenious obfuscation. Also, the outside "expert" consulted by judge Whyte was Adobe itself---conflict of interest or just excellent mafiotic practice?

Now, on to the typophile comments that struck me.

• Uli Stiehl: The ripoff DVD 31000 Fonts by Jungclaus Consulting documented by me in March 2007 contains 500 SSI (Southern Software) clone fonts. During the past 4 years, Adobe had plenty of time to sue the sellers of this DVD with reference to the Whyte "precedent" judgment. But Adobe never dared to sue them. Excellent point, Uli.
• Richard Fink, tongue in cheek: As Roy Cohn once said, "I don't care if the other side knows the law, as long as I know the judge."
• The ruling said King also infringed when he loaded into his computer's random access memory copies of the Adobe program. The wiki page on the ruling rephrased that a bit. Uli Stiehl made the great point that anyone using Fontographer, Adobe Reader, FontLab, Corel Draw or Internet Explorer also copies the font data into RAM. In fact, he exhibited a PDF file of another Whyte ruling that contains letters from Helvetica. So he goes into literary overdrive: According to Judge Whyte, unless you have licensed the "program" of the letter "C" of Helvetica, you just committed the crime of copyright by loading the "program" of the letter "C" into your computer's random access memory. This is utter legal nonsense. According to Judge Whyte, millions of people, day by day, commit millions of crimes of copyright or millions of copyright infringements by downloading and viewing millions of PDF files from millions of Internet websites.
• Picking up on Uli's fun remark, Richard Fink: Whyte's statements are clear. Uli is correct. If you are incredulous, it's an indication of just how badly copyright law fits with digital tech. You are probably just having a hard time believing that a 'copying' into RAM - which we all know is necessary to view anything on a computer - counts as a 'copying' under copyright law.
• Uli Stiehl again: Google for VeracitySSK, and you will see that dozens of outfits offer this clone, but none of them was ever sued by Adobe, since the Whyte judgment is legal nonsense.
• Nick Shinn chimes in: There is also the court of professional opinion, which counts for something if you want to make a career rather than just a buck. In this court, the larger your business, and the longer-established your reputation, the more you can get away with.

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