What’s the conclusion?

15 May 2002

In this case there was no final court decision that we can refer to as enforcing anyone’s argument either way. All parties, after a three year chase, agreed to an out of court settlement – the terms of which have not been disclosed. Were there therefore any winners and losers?

They have undertaken a huge collaborative effort to pursue this case

From the foundries there seem to be two distinct view points: “we’re sorry that it had to happen” and “we have to defend our work”. While these may seem to be mutually exclusive I believe that they reflect the pragmatism of the foundries. It is clear from my discussions with those involved that they have undertaken a huge collaborative effort to pursue this case – and that there was a financial and creative impact to that decision. It also seems clear that those involved would pursue the same action again if need be.

Rudy VanderLans said, when asked about the settlement, ‘We have never lost any of these type of lawsuits. Granted, many of the lawsuits to protect our font software are settled out of court. Our goal is to stop people such as Apostrophe. We’re in it to protect our work, not to clog up the legal system and/or fatten the wallets of lawyers. This settlement gave us exactly what we asked for.’

This view seems to resound throughout the foundries that took part in this case, they all regard the case as a victory in protecting their work – something that had to be done. Jonathan Hoefler’s view supports this, and indicates the level of cooperation between the foundries ‘I think what the foundries did in this case was to demonstrate that dealing with this kind of abuse is just another cost of business’.

‘Yes, if it came to it, FSI would do it again’

Was it the case that given a similar example of such piracy, the foundries would act together again? ‘Yes, if it came to it, FSI would do it again’, says Petra Weitz at FontShop in Berlin. There doesn’t seem to be much room for equivocation here.

One view on the level of piracy of fonts may be that it discourages designers from the marketplace. There seem to be mixed messages from the type community on this issue. John Downer, who was represented by Emigre in this case, says ‘In a word, no. I’ve been in ‘The Lettering Game’ all my adult life, and I’m not about to make an exit. Things may change a bit, in terms of which publishers I opt to deal with though.’ Downer’s point here being that he is much more likely to distribute his work through foundries that are proactively seeking to protect his work.

‘If you want to design typefaces, you have to accept the present rules. That goes for music and everything else in the digital domain’

Erik Spiekermann adds a few more points to the debate, indicating that he is far from throwing in the towel ‘I’ll carry on making new fonts, because the people I care about will buy type if it is necessary for their work’. However he also recognises the inherent problem with all digital media in the current environment ‘If you want to design typefaces, you have to accept the present rules. That goes for music and everything else in the digital domain. We can all try and change it, but in the meantime we have to take it or leave it.’ It’s fair to say that Spiekermann has done more than his fair share in seeking better distribution models – as one of the founders of FontShop in 1988.

There are a few however who do recognise directly the threat piracy is to their ongoing commitment ‘I believe we’d continue to be motivated to produce new designs. I imagine things could get to a point where piracy will affect that motivation but right now I cannot see it,’ says type designer and publisher Jack Yan, who wasn’t involved in the case against Apostrophe.

Jason Smith, of FontSmith in London commented that ‘The basic right of an ‘artist’ is that his works remain his legally. It seems that certain people just do not get that. They don’t realise or care that artists like us make our living from selling fonts.’ This appears to raise a basic point, that many others have considered over the years ‘I do believe that some of these pirates truly think they are doing nothing wrong’. The answer is usually seen to be ‘education’, but how many people can truly claim to be ignorant of the legal or moral issues? Certainly not Apostrophe/Nader.

Resigned to fighting on-going piracy the type community appears to be able to collectively weather the storm – despite the fact that in other areas many of these businesses would be seen as competitors, it is clear that there is a sense of a common cause.

So what of the defendant?
A few things are clear, with or without the input of Fred Nader. If the plaintiffs had to make some effort to progress this case, then there must have been an approximately equal strain on the part of the defendant. The stress of facing a multi-million dollar law suit would affect anyone. There’s also the financial cost, outside any settlement that may have been made, hiring lawyers and court costs soon mount up. Some have speculated that Nader had no costs, but that’s clearly false – since Federal Court of Canada documents show online that he was ordered to pay costs of CAD:1,000 at one point in the trial process, and many other documents in the case have never been made public.

The stress of facing a multi-million dollar law suit would affect anyone

We should also take into account the affect on Nader’s reputation, professionally – it is currently believed Nader is working as an art director. As ‘Apostrophe’ he could say whatever he liked and not be accountable. Now, identified, he has to shoulder the burden both of his acts of piracy and of his published views. It is common these days to run someone’s name through an internet search engine before considering them as an employee or supplier. What would you think upon finding Nader’s name linked with such acts of piracy? Would he be someone you could trust in your employ, or as a supplier? It would seem doubtful.

Additionally, we should also look at the affect that Nader’s new found infamy will have on the freeware foundry, ApostrophicLab, that he has developed along with others who have no such black marks against their names. One of our contacts, who wished to remain anonymous, indicated that Nader had brought the whole of that distribution network into disrepute. It is almost an act of irony that Nader has ranted against the distribution of ApostrophicLab’s freeware fonts on a commercial CD – but clearly the work of others is fair game for his piracy?

It is possible that Nader will feel the need to speak out against this and other articles covering this case – remember that he was invited to participate in this article, but declined. One has to wonder whether such output would be a help or hindrance to him in the future, or whether he just needs another AKA to continue his role as the reigning pirate king?

Input

Clive Bruton e:clive@indx.co.uk w:http://www.indx.co.uk

Related sites

Jack Yan \&\ Associates e:fonts@jyanet.com w:http://www.jyanet.com

Fontsmith e:jason@fontsmith.com w:http://www.fontsmith.co.uk

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