Industry Letter to Copyright Office - Please Share

I have some questions.

Who has Frank or Monotype spoken with outside of Monotype prior to drafting this letter?

Has any open dialogue occurred regarding this topic that can be read or accessed by other foundries or independent designers?

How did you hear about this? Did Frank reach out to you personally? Were you contacted by Monotype? Was there some kind of press release around this?

Has Monotype disclosed any real life examples of where they or anyone in the industry has been harmed by this? Better yet, have they disclosed why they are interested in pursuing this now?

Is there a draft of this letter so far or perhaps an outline? Or is it too early for that still?

I am interested in participating, but don’t necessarily want to authorize the inclusion of my foundry names as part of this industry letter quite yet. Is that possible?

Will this result in broad copyright language that will permit big players like Monotype to stake claim over historical faces?

When the largest company in an industry is advocating for stronger laws, I can’t help but be skeptical of how they will leverage that against smaller competitors. Historically speaking, this tends to be the case in the US. Even if the legal cases get thrown out or don’t hold up in court, litigation is a bullying tactic often employed by the powerful to extinguish competitors.[1][2][3]

1. ‘Buc-ee’s’ Sues ‘Nut Huggers’ Underwear Brand in Bizarre Logo Lawsuit
2. Why Uncrustables maker J.M. Smucker sued Trader Joe's over PB&J sandwiches
3. Smucker’s is in a trademark fight with small business over round, crustless sandwiches

I see a lot of scepticism wrt Monotype and its motives, which might be well grounded. But could it be possible they have a motivation that is aligned with the interests of all foundries?

Although I think that in general Monotype’s objectives are not especially aligned with other foundries, I also believe that they and virtually all other type foundries and resellers have a common interest in this regard.

That said, I can’t imagine committing to sign on to such a letter in advance of seeing it, if it is being drafted by just one party and their lawyer. I would expect that even the most interested parties would be likely to say, “sounds interesting, but we would want to see the letter first.”

And of course a process that involved more players up front might get more interest. I don’t think you could involve everyone, but you could have a review and consulting group that represented type designers and foundries more broadly than a single mega-foundry/distributor does. 

@Matthew Smith: this is positioned as advocating a return to previous policy, rather than a change to an entirely new state of affairs. Clearly, the party with the most fonts also benefits the most. But that doesn’t mean it is of no value to others.

As recently understood, since the early 1990s, copyright for computer fonts in the USA has been a question of the software code and the specific coordinates used, not the abstract design. So for example, US copyright wouldn’t stop somebody from doing a look-alike of Monotype Bembo, as long as they did not start with Monotype’s font software to do it. But it would give Monotype legal recourse if the third party created that look-alike font by starting with Monotype’s digital font and using the vector outlines and coordinates from it, rather than creating their own from an analog source.

(Note: I am using “font” here as a shorthand, when I actually mean a font family, a set of related fonts.)

Protection of the rights of creators in law is intrinsically tied to technological ease of copying; indeed, it serves as a balance to that ease by compensating for the loss of previous technological limits on copying. This is why such law first emerges—in the form of granted privileges rather than recognised as rights—soon after the advent of printing made reproduction of texts and images easier than manual copying. Later, the administration of such protection shifted from granted privileges to inherent rights, which is both fairer and easier to manage. So when technology changes to make copying even easier, as is the case with digital media, it is entirely reasonable and to be expected that the law should adapt, as it has done in the past, to further compensate.

I have long held the view that the ‘protectable creativity’ argument is a red-herring, even if made in good faith. It makes no sense for that nebulous concept to be the criterion for protection of the inherent rights of the creator of a thing regarding its utilisation, copying, distribution, and adaptation. The proper question is ‘Is there value in the utilisation, copying, distribution, and adaptation of this thing?’, because it is that value the law seeks to protect. Copyright is entirely moot if no one wants to use or copy a thing. The fact that people can distinguish between different typefaces and choose to use one over another is evidence of particular value in the design of those typefaces, as is the fact that someone wants to copy them. [I should also point out that this isn’t something peculiar to commercial fonts: the terms of libre software licenses are also dependent on the original rights of the creator to grant such licenses.]

And I am talking here about typefaces, not fonts–as-software per se, because I also think that the whole USCO treatment of software as literary works, which is what has led to the fetishisation of typing code, is profoundly wrong-headed. I understand how a bureaucracy that couldn’t understand new media and technology took refuge in something it thought it did understand, but as the things people do on  and with computers become more and more sophisticated, the further the software-code–as–literature strays from the actual source of value in the software, until it becomes unsustainable. The value of a computer game is in the playing of it; no one is sitting down to read the source code like a novel. Likewise, the value of a font is in the using of it, not in how creative someone thinks the designer was being when he or she made it.