David Nimmer discusses extension of DMCA to embedded fonts


Of all the provisions of the Copyright Act of 1976, the most fiendish to interpret have been those added in 1998 by the Digital Millennium Copyright Act. Within the DMCA, the greatest difficulties arise as to the anti-circumvention features added by 17 U.S.C. § 1201. In Agfa Monotype Corp. v. Adobe Sys., Inc., the court determined that the DMCA does not regulate "editable embedding" enabled by defendant’s Adobe Acrobat 5.0 software product. In discussing the case, David Nimmer writes:
 
Adobe Acrobat 5.0 ... allows users to send Portable Document Format files. The recipient of such a PDF can print it out in the same font in which it was prepared. To allow that functionality, defendant Adobe embedded the subject font data as part of the document being transmitted. Included were plaintiffs’ TrueType Fonts, which have been available for free download since 1995. Those fonts are neither encrypted nor scrambled; they “can be accessed regardless of the font’s embedding permissions” and without the use of any password.
 
     Previous versions of Acrobat had not drawn fire. Version 2.0 allowed users to embed TrueType Fonts into a PDF. Version 3.0 included Form Fields, allowing both the creator and recipient of a PDF to add, delete, and edit text. The complaint arose out of the innovation of Version 5.0, which “made it possible for the first time to embed in a form field or a free text annotation any TrueType Font whose embedding bit is not set to ‘Restricted’ . . . .” Theoretically, that advance allowed the recipient of a PDF to “embed and use Plaintiffs’ TrueType Fonts to edit a form field or free text annotation even if the embedding bit was not set to ‘Editable.’” In other words, defendant added this functionality knowing that it would “permit its users to embed TrueType Fonts in a Form field or Free Text annotation even if the embedding bit were set to ‘Preview and Print’ only.”
 
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     After summarizing Adobe’s many contrary arguments, the court concluded that, even accepting the contention that Acrobat Version 5.0 implicated plaintiffs’ reproduction right (“a conclusion that is not entirely clear to the Court based upon the particular facts of this case”), plaintiffs’ case foundered on their inability to demonstrate that the targeted software was “primarily designed or produced for the purpose of circumventing a protection afforded by a technological measure that effectively protects a right of copyright owner.” Thus, the same lack of evidence that doomed plaintiffs’ trafficking claim proved likewise fatal as to the additional violations….
 
(citations omitted.)