Font theft: the forgotten piracy
OUT-LAW Radio, 29/03/2007
We unveil the scale of font theft, the invisible, forgotten wing
of software piracy, and we ask: will corporations soon own all the
colours of the rainbow?
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome
to OUT-LAW Radio, the weekly podcast that keeps you up-to-date
on all the twists and turns in the world of technology law. Every
week we bring you the latest news and in-depth features that help
you to make sense of the ever-changing laws that govern technology
today.
My name is
Matthew Magee, and coming up on this week's show we look at
piracy's forgotten crime: font theft, and we investigate whether
corporations will soon own all the colours of the rainbow.
But first, the news:
- Parliament will probe
Government surveillance of citizens; and
- retailer sues registrars in
$12 million domain tasting suit.
The UK Parliament has
launched an enquiry into the surveillance conducted on citizens by
the Government. It will investigate the growing number of
government databases and the increasing amounts of information they
hold on citizens.
The Home Affairs Committee
will conduct the inquiry and will produce rules for Government to
follow when collecting sensitive and private information on the
general public.
The inquiry will investigate
identity cards, the national DNA database and the use of closed
circuit television as well as databases under development by the
departments of health and education.
US retailer Neiman Marcus is
suing two domain name registrars for more than $12 million
over their registration of names containing variations of its
brand. The suit is a rare case relating to the relatively new
phenomenon of 'domain tasting'. This is the practice of registering
domains for five days then cancelling those that do not attract
enough traffic. Taking advantage of a five day cancellation period,
that practice costs the registering party nothing.
Within that five day period,
adverts are published on the pages, and any page that receives
enough hits to earn more than the $6 per year domain name
registration fee is kept and paid for.
Often the pages involved are
slight misspellings of famous names or trade marks which attract
people who incorrectly type addresses into their computers.
The case accuses the
registrar companies of cyber-squatting, trade mark infringement,
false designation of origin, and unfair competition in the District
Court for the District of Colorado. It says that some of the domain
names registered and offered for sale by the registrars were
"confusingly similar" to trade marks that belonged to Neiman
Marcus.
That was this
week's OUT-LAW news.
They are the mysterious
little engines that make your letters look so
professional; you probably stare at them all day every day, and you
can't even use your computer without them. Yet they are stolen,
copied, pirated and abused every single day without anyone batting
an eyelid.
What are they that withstand
such privations? Well, they're fonts, and their enduring theft is
the forgotten piracy, so low profile that most people don't even
know it exists.
A computer in an average
small business is said to have a whopping 300 unlicensed fonts on
it, a fact that is proving something of a blow to the typeface
industry.
But that business is
fighting back. One of its biggest firms, Monotype, has just joined
the software industry piracy busting lobby group, the Business
Software Alliance, signalling its intention to get tough on font
theft.
Monotype's marketing
director for Europe Julie Strawson first told me just exactly
what a font is.
Julie
Strawson: Well a font is the character that you
create every time you use your keyboard. Whenever you type you are
using some software to create the words on your screen so it
actually goes very much unnoticed because it is such a simple form
of software that most people take for granted. It is composed of
basically a design initially that creates the shapes of the
characters and then that design is translated into software so it
actually goes very much unnoticed because it is such a simple form
of software that most people take for granted.
Years ago it wasn't so
simple to steal a typeface. You'd need a truck for a start: the
only way to put a font on to paper was to use hot metal, clamping
together individual letters to form blocks of text by hand.
These days it's an entirely
virtual business, and we are all desktop typesetters. But what is
convenient to you and me is a headache to the designers who make a
living from making fonts.
Julie
Strawson: I think the internet has been a big problem for
us in as much as it has made them a lot less tangible than they
used to be when they were pieces of lead and people don’t really
attach as much value to an intangible item like software
unfortunately as they do to very tangible items like cars or other
aspects that they have in their business. So the issue we have is
that fonts are very much overlooked by people because they are
generally used within a piece of software and it is taken for
granted that they are pretty much free. They are provided free and
they are able to be used as the user would like to use them.
Fonts are completely
ubiquitous. From the error message on your TV set top box to the
lurid headlines in the newspaper your chips are wrapped in, there
is no escape from their use.
Julie
Strawson: Today we have moved today from purely using
type on paper of course. We are looking at type on computer
screens, on mobile phone screens, on other mobile devices like PDAs
and in digital devices like set-top boxes and consumer devices like
that to enable end-users to make better use of their devices and
make the devices easier to use. Type is everywhere really.
But, oddly for something we
rely on so heavily, there is little appreciation of their real
value, says Strawson.
One area where they are
utterly vital is in the design and publishing industries. Yet it is
exactly here, she says, that the problem of asserting the value of
fonts is at its most acute.
Julie
Strawson: This is a very big issue actually in the
creative professional marketplace where graphic design and so on
goes on. There is quite a culture we find that is quite tough to
change but fonts are sent along with jobs to printers and to repro
houses and so on. We are very keen to try and stop that illegal
redistribution of fonts. So it is very inexpensive when you are
considering that it is a necessary tool for the printer to produce
his product and the printer is making a profit on that product.
Monotype sells a piece of
software which creates an inventory of all your fonts and tells you
which you really own, and which are stolen. Strawson even claims -
however unlikely it might seem - that this can save you money.
Julie
Strawson: We offer a service to audit fonts and a
number of large publishers use that service including Future
Publishing and IPC Media for example. Obviously most companies
want to be legal these days and they blanket licence so they say,
okay, I’ve got 600 users, I’ll buy a 600-user font licence but
clearly if you are designing a magazine there might only be two
designers on that magazine that need the fonts. So by actually
taking control and understanding, creating a database of the fonts
they are using, they have now found that they can share licences
more cost effectively in the organisation and cut out that blanket
licensing and reduce costs and Future Publishing for example saved
£25,000 in six months doing that just on font software.
Monotype says that it is not
about to go out armed with law suits to try to put every firm it
comes across in jail, but it does say that it wants to help firms
understand that fonts need to be monitored, managed and accounted
for, just like any other software.
Julie
Strawson: The whole point of looking at fonts really
is to ensure that you don’t have any gaps in your software asset
management process. You’re really wasting your time almost if you
don’t include fonts because you could still have security, workflow
issues and be left with a liability at the end of the day if you do
not include them.
Colour adds life, vibrancy
and excitement to an otherwise grey corporate landscape, but
graphic designers and marketers will have to be a whole lot more
careful with their palettes if Anglo‑Dutch oil giant BP gets its
way. The company is in the process of trying to trade mark the
colour green.
It may come as something of
a shock, but trade marking colours is perfectly legal, and has
already been done. The trouble is, says trade mark specialist
Lee Curtis of Pinsent Masons, the law firm behind
OUT-LAW, it is awfully difficult.
Lee
Curtis: It has been made clear in case law in Europe
and in Australia that colours can act as a trade mark, a
registrable trade mark. So basically in any circumstances a colour
can act as a trade mark, it has the potential to act as a trade
mark. The problem with colours are in contrast to words, people
don’t tend to often buy a product by its colour. It is not the main
differentiator the word element is often the dominant element. I
would say colours are protectable and can be registered as trade
marks but it is very difficult.
Registering two colours
together is far easier, but registering just the one is definitely
possible, as Telco Libertel found out in 2003 when the European
Court of Justice ruled that it could register a single colour.
But does that mean that no
company can use green ever again, should BP be successful? Not
quite: the courts use a colour identification system used by
designers called Pantone, where exact shades are given an
identifying number. But some of the shades are very alike indeed.
Exactly how many shades one trade mark will cover is still a vital,
and undecided, question.
Lee
Curtis: That’s the big question because there hasn’t
been, to my knowledge, a definitive court case on if you have a
particular shade of Pantone green registered how far that
protection goes. Does it go to all shades of green? Does it go to a
blue because it looks a bit like a green? The general consensus at
the moment is the rights would be quite narrow because the courts
have been reluctant to grant registration obviously for all types
of green. So if you are only registering it for a particular
Pantone you would only be able to prevent someone else using that
particular Pantone or a very very close shade of that colour. So I
would say the rights are quite narrow but it has not been tested in
court yet and that is the next interesting question. Colours can be
protected, at the moment it is how far that protection goes.
So will we all soon have to
check the Trade Mark Register before making any use of colours?
Will the corporate world own the rainbow? Curtis says not.
Lee
Curtis: To infringe a right to a trade mark you have
to use it in the course of trade. So you have to be commercially
active and trading using that particular colour. So just painting a
wall green would not infringe somebody else because you are just
painting your house green for example as you are not using it in
the course of trade. I think I would emphasise registering colour
trade marks as very difficult so I don’t think that the register is
going to clutter up with lots of different shades of colour. I do
not think we are going to run out of colours to register.
That's all we have time for
this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
Make sure you tune in next
week; for now, goodbye.
OUT-LAW Radio was
produced and presented by Matthew Magee for international law
firm Pinsent Masons.
