This article has been written by Sagnick Chowdhury, pursuing the Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.
Over the past decade, we have seen the software industry boom tremendously and while it is dominated by a few big conglomerates, low market entry barriers enable new participants to take part in this booming industry. Within the computer industry, software and services are the fastest-growing segments, it is dominated by huge companies such as Microsoft, Google, etc. One of those key players is Adobe, a California-based company that sells software related to print and electronic media.
In October 1995, Adobe initiated a suit for copyright infringement against Soft Key International for allegedly copying their Fonts software among other claims. In this article, we look into the famous case of Adobe vs Southern Software Inc. and analyze the claims made by adobe, the defenses availed by Southern Software, and the decision by the court.
Before we jump into the intricacies of the matter, it is important to properly define the term “Font”. A “font” is a graphical representation of text. These representations vary by size, color, weight, typeface, or design and programs like Microsoft Word or Excel allow the users to change fonts to match the tone of the typed content. The font characters are known as “glyphs”.
The facts of the case are as follows; Paul King, director of Southern Software, Inc. loaded adobe systems’ font software on his computer, scaled the coordinates of the fonts and altered them using programs known as FontMonger and Fontographer, and then used them to create his own “Key Fonts Pro 1555” software program along with two other products. One of the products “Key Fronts Pro ” was licensed to The Learning Company which was then distributed. Adobe initiated suit against Southern Software and The Learning Company and Paul King for infringing Adobe’s copyrights on more than 1100 fonts.
Adobe contended that Paul Kind merely extracted the glyphs and altered their coordinates which brought upon a slight change and thus it infringed upon Adobe’s font programs.
The decision by the court
The federal district court gave the decision in favor of Adobe, stating that “The evidence presented shows that there is some creativity in designing the font software programs. While the glyph dictates to a certain extent what points the editor must choose, it does not dictate every point that must be chosen.” Hence the court held that Southern Software’s fonts were deceptively similar to that of Adobe and therefore, they are infringing upon the latter’s copyrights.
In order to prove copyright infringement the complainant has to first prove that he owns a valid copyright and that there was copying by the defendant as was observed in the case of Data East USA, Inc. v. EDYX, Inc. The plaintiff must also prove the existence of a valid expression and that the expression was copied by the defendant. In this case, it is not disputed whether Adobe is the valid owner of the copyright in its programs. It is also evident that Paul King had access to Adobe’s programs hence, the issue in this case is whether the Copyright Act brings the material in question under its umbrella and provides protection.
The material in question is a computer program and they are protectable under literary works. A computer program is defined in the Copyright Act as “a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result.” Computer programs are protectable literary works. We also need to look at the decisions made in two cases
- Apple Computer, Inc. v. Franklin Computer Corp. – Typeface designs are not copyrightable.
- Eltra Corp. v. Ringer – A computer program is not rendered unprotectable merely because its output is not protectable.
Hence, we come to the conclusion that even if a computer program creates unprotectable typefaces, the program itself does not become unprotectable. Finally, in 1992 the Copyright Office of the U.S issued an order regarding computer program-generated typefaces, in the order, the Copyright Office contended that the original instructions which enable computer programs to create typefaces in conjunction with low resolution and other printing devices may be granted protection under the Copyright Act. This is based on the principle that if an expression meets the standard of authorship, it is protected by copyright laws.
The defendants argued that mere manipulation of a font image to create another slightly different font image does not give rise to a protectable expression. They argue that numerical reference points that define the outline of a glyph, the coordinate, are not protected and hence mere changing of the coordinates by the adobe editor does not give rise to a protectable expression. This is because the output is not protected and thus there is no creativity.
Adobe argues that each render of a glyph requires the ingenuity of the editor, he has to select the points in a proper and creative manner and such selection and placement of these points are copyrightable.
Work must be original for it to be protected by copyright laws. Original works are those which have a degree of creativity even if it is minimal and the plaintiff argues that the glyph coordinates are not dictated by the glyph shape, it has to be selected carefully by the editor and hence it involves creativity and should be granted copyright protection.
The defendants say that the programs, FontMonger and Fontographer works by extracting the coordinates, not the source codes, hence there is no copying of the source code. Since copyright only subsists in the source code, the defendants argue, that hence, they haven’t committed any infringement. They emphasize the point that the coordinates themselves are not protectable.
By analyzing the arguments it would appear that there is a minimal degree of creativity needed to design the font. The glyph itself does dictate what points are to be chosen but it does not dictate all the points. Adobe was successful in showing that there is a degree of creativity required from the editors to choose the points carefully. The code is determined by the selection of the points. Hence, copying the points amounts to the copying of the source code which is protectable.
After-effects of the decision
Adobe’s licensing agreements with companies like IBM, Microsoft, and Apple, etc. means that their technology will now be implemented in these companies, and adobe’s fonts and programs will become the industry standard. Due to this decision, Adobe would go on to charge licensing fees for their web design, computer programs, and their fonts too. The licensing fees drove up the prices of the computer software charged by companies using the Adobe standard.
The software industry was special in that it allowed small companies to enter without the looming fear of huge overhead costs but now software engineers and programmers have to pay fees to use these standardized programs.
But this is not to say that standardization does not have its benefits. Consumers greatly benefit from having a single standard adopted by huge companies like Microsoft and Apple. It relieves the consumers from having to buy multiple products to work on different platforms. They can switch from one window to iOS without having to worry about learning to use entirely new software and as the degree of standardization increases, the multitudes of complementary inputs such as software, repair services, which are available to users expands as well, thereby facilitating the switch from one system to another. These forces also create a tendency for only several standardized interfaces to exist at a time and make the introduction of new interfaces more costly and difficult. And all of this is only possible if one completely nose-dives into Adobe’s territory and their exorbitant charges and by giving into it we provide an incentive for more companies to start erecting barriers. This will prevent the entry of new players into the market and result in monopolies, which would ultimately harm the consumers.
Copyright protection is already broad and it is unclear whether increasing the number of things that fall under its umbrella is a good thing or not. It all comes down to the aim of copyright law, which is to provide incentives and increase creativity. Protecting fonts is probably not a step in the right direction since the market is already pretty saturated. This leads to Adobe getting the green signal to run away with the market. IBM, Microsoft, and Apple will probably create standards for software programming that run on the Internet and popular PC platforms. Adobe products probably will be included in these standards. And this is sure to increase the prices of the programs using such standards. Tech should not be a privilege it should be a right and the courts must look to keep that in mind before granting protection. While people should be rewarded and protected for their creativity, copyright protection should not be granted to cover the “artwork” inherent in font “glyphs,” which, in their most basic form, comprise the alphabet itself.
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