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I’d love to hear one of Apple’s attorneys explain what the company’s damages would be if a developer were to breach this.

That aside, there’s a bigger problem here: this is bad business sense, no matter how you spin it.

It’s also bad for society.  In stark contrast to Apple’s approach, Google seems to be going in the opposite direction with their new “Android” platform.  The platform is wide-open, so anyone can develop almost anything for it without any limitations.  I think it’s obvious why that’s dangerous.  So, as of today the market has exactly two major choices: Apple’s closed system that’s hostile to developers, and Google’s open system that’s a malware attack just waiting to happen.

I don’t think this can last.

I wonder whether an iPhone-specific version of the Firefox web browser would similarly be rejected because it’s too similar in functionality to the iPhone’s built-in Safari browser.  If so, this reminds me a little (and I mean just a little) of United States v. Microsoft.¹

1. 87 F. Supp. 2d 30 (D.D.C. 2000).

• A company named Psystar made headlines yesterday by offering to sell low-cost computers that are pre-loaded with the retail version of Mac OS X 10.5 “Leopard,” the next-generation operating system that Apple includes on new Macs and sells at retail as an upgrade for other Macs.  The problem is that Leopard’s EULA specifically forbids installing it on non-Apple hardware.  Now Psystar is threatening to challenge the enforceability of Leopard’s EULA if Apple mounts a legal action.  Probably a bad idea.
• Zango v. Kapersky: A software vendor is upset with the developer of an anti-spyware app that classified its product as malware.
• Elektra v. Barker: More on whether “making available” a copyrighted file constitutes infringement.

As Kelly illustrated, web pages are absolutely fair game for copyright infringement actions when they contain infringing materials.  Take a closer look at this very post as it appears in your computer’s web browser.  There are a few small graphics here and there such as the small “Linkedin” icon to the right, but the vast majority of this page is text.  As the author of the substance of this text–the “words” of it–I own the copyright to it and, by publishing it on this blog, I’m granting you a license to download, read, and use it under certain license terms that are outlined in the Creative Commons License that I’ve indicated at the bottom of the page.  But how about the “design” of the words?  I don’t own the copyright to the typography or font.  I certainly don’t have a right to distribute the font, and I’m certainly not authorized to convey any rights to you in that regard.  Luckily, thanks to the basic design of HTML and the Web, this has traditionally never been a problem.  No web page actually contains or distributes a copy of a font.  Web pages instead rely on tags written into the HTML which simply tell the receiving party’s computer’s web browser (in this case your web browser) which font or fonts to use for rendering the web page’s text.

So, for example, if I want the text of this post to display in the font called “Helvetica,” I insert a tag that tells your web browser to display that text in “Helvetica” and rely on your computer already having that font and using it to display the text.  If for some reason your computer does not have that font, your web browser will probably substitute the typeface with some other one, perhaps “Times New Roman.”  There’s no potential for copyright infringement here because the web standards in place simply don’t provide a mechanism for the distribution of a font; we’re merely using ones that you (the viewer) already have.

As you can imagine, this results in a frustrating situation for many web designers.  The inability to “push” fonts to visitors’ computers means that web designers are typically limited to a very small selection of “web-safe fonts,” or typefaces that are likely to be installed by default on wide variety of computers and operating systems.  Apple and others in the software business have recently been promoting a new standard for the web called CSS Level 3 (or “CSS3″) which provides, among many other things, a way for web designers to easily embed a copy of a font into a web page.  In theory, this would mean that a web designer could use any font he likes in his designs instead of being limited to only a handful of “web-safe” fonts.  The latest version of Safari, Apple’s freeware web browser application for Windows and Mac OS X, is among the first to support CSS3 and Apple has begun promoting this.  Specifically, the Safari website contains the following text as of this writing:

With CSS3 web fonts in Safari 3.1, web designers can go beyond web-safe fonts and use any font they want to create stunning new websites using standards-based technology. Safari automatically recognizes websites that use custom fonts and downloads them as they’re needed.

Typography designers are understandably disturbed by this sort of marketing because it could give some web designers the mistaken impression that it’s permissible to distribute copies of a font without authorization from the owner of the copyright in that font.  This sort of marketing language bears a scary resemblance to the U.S. Supreme Court’s holding in MGM v. Grokster, in which the Court unanimously declared that one who “actively induces” copyright infringement is secondarily liable for that infringement.  I don’t think it would be a stretch to call Apple’s “use any font they want to create stunning new websites” text an “active inducement” of that infringing activity.

Of course, there are obvious differences between the Grokster application and Safari.  Grokster was designed specifically to attract former users of Napster’s peer-to-peer network following that service’s annihilation, for the same purpose as Napster.  The Safari application is merely a cutting-edge web browser.  Indeed, Safari itself doesn’t provide for file distribution at all; it only provides a way to download information that has been posted.  There’s also a weak argument that Apple’s Safari website is aimed at end-users (communicating what they can expect from the application) and not web designers (telling them what they should do).  But, for the purposes of secondary liability, none of this matters.  At the end of the day, Apple’s Safari website is actively telling visitors that web designers can distribute any fonts they want for users to download through CSS3, and this sort of marketing language is dangerous.  There’s nothing wrong with offering CSS3 compatibility and advertising that fact, but in a post-Grokster world, Apple and other software companies with cutting-edge technology need to be more careful about publishing information that seems to promote use without regard to infringement.

Disclaimer: This weblog is an informational resource only. It is not designed to offer legal advice.

Update: I remembered this morning that PDFs can also include copies of the fonts used therein, depending on the settings of the software used to make them.  Some PDF creation software, like the one built into Mac OS X, seems to embed font files for every font used in a document.  Unless the PDF format provides some way to prevent end-users from accessing and using embedded fonts, this poses the same question as CSS3.

• Elektra v. Barker and London-Sire v. Doe:  Can merely “making available” a file on a P2P network constitute copyright infringement, or does infringement require that a plaintiff prove that the file was actually downloaded by a third party?  Maybe not.  Coincidentally, I’m currently working on a seminar paper on this very topic.
• Fair Housing Council of San Fernando Valley v. Roommates.com, LLC.:  Roommates.com was denied § 230 immunity by the Court of Appeals for the Ninth Circuit.  Eric Goldman comments on his blog.
  
• Perfect 10 v. Visa:  This is a secondary liability suit in which a copyright owner unsuccessfully sought damages from a group of credit card companies that process transactions for infringers overseas.  On appeal, the plaintiff has now been joined with an amicus brief filed by the MPAA, RIAA, and others, as well as another amicus brief filed by the an organization that polices with counterfeit apparel and sneakers.  I’ll comment on this sometime soon once I’ve had an opportunity to read the briefs.
• A class-action was settled by Apple last week after some consumers complained that the flat panel displays on their Apple notebook computers don’t display as many colors as they should, leading to inferior image quality.  This week, an identical suit was filed complaining that Apple’s “iMac” line of all-in-one desktop computers have the same problem.  Apple might settle again simply to avoid negative press, but the truth here is that all flat panel displays from all manufacturers have this issue.  No flat panel display can mimic every color that the human eye can see, so they all fake it using a technique called dithering.