Fonts copyrightable, judge rules

Pushing a contentious issue in the software industry one step closer to resolution, a federal judge has ruled that software fonts are eligible for copyright protection, a decision believed to be the first of its kind.

As computer font sales have blossomed into a million-dollar industry, the issue of how graphics companies protect their assets has become increasingly important. For the better part of a decade, software companies have rested comfortably in the knowledge that copyright laws protected their source code against piracy and unauthorized copying. But for font manufacturers, the matter is not so clear cut.

The sticking point is that under established law, typefaces are viewed as a "utilitarian device"--similar to a knife or a screwdriver--and therefore do not meet copyright guidelines. (Software, on the other hand, is viewed as a "work of authorship" containing enough creative elements to meet copyright criteria.) The controversy in the software industry concerns whether computer font files are considered as formulas for generating typefaces or as source code.

In a case that pitted Adobe Systems against a small software company in Florida, U.S. District Judge Ronald Whyte of San Jose, California, ruled that computer fonts are no different from other kinds of software, and enjoy full copyright protection.

"The fact that a computer program produces unprotectable typefaces does not make the computer program itself unprotectable," Whyte wrote in the decision, issued earlier this week. Font designers "make creative choices as to what points to select based on the image in front of them on the computer screen."

The case stemmed from a complaint that Southern Software extracted reference data known as "on-curve points" and "off-curve points" from Adobe's software programs. After separating the reference points from Adobe's source code, Southern Software allegedly used the information to create its own package of software fonts. Southern Software admitted that it had pulled out the reference points, but contended that they were not protected by copyright.

Judge Whyte rejected that line of reasoning, noting the "creativity in designing the font software programs."

Terrence Carroll, an attorney specializing in computer law and author of an article on copyright protection for fonts, said the ruling was good for software companies, who want to know that the software they spend millions of dollars developing won't be copied by others.

"It is important that copyrights in fonts are respected and enforceable," said Carroll, who is associate counsel at Creative Labs. "To permit the kind of circumvention that was attempted in this case would have been terrible for the industry and ultimately for the consumer."

But James Brelsford, an attorney for Southern Software, is not so sure. "The defendants are disappointed in the ruling and believe it strikes the wrong balance," said Brelsford, a lawyer at Hosie, Wes, Sacks & Brelsford. Both he and Carroll agreed that Whyte's decision is not likely to be the last word on the matter.

"This truly is a cutting-edge issue," Brelsford explained. "Such issues tend to need ultimately some measure of appellate resolution."