d. Monotype Imaging, Inc. v. Bitstream Inc.In Monotype Imaging, Inc. v. Bitstream Inc.,^1351 the court adopted a rather broad reading
of the scope of the CMI provisions. The plaintiff Monotype developed and distributed fonts and
font software. The defendant Bitstream competed with Monotype, and developed a product
called TrueDoc, a computer program that facilitated the display of typeface designs on computer
screens and other output devices. Bitstream openly promoted the fact that TrueDoc replicated
the original typefaces of other vendors. TrueDoc included a Character Shape Recorder (CSR)
component that created a compact file format called a Portable Font Resource (PFR) based on an
underlying font software program. The CSR obtained data that described the shape of the
typeface characters of the underlying font program from the computer’s operating system. When
accessing information from the operating system about the font software, TrueDoc did not
request the copyright notice from the Windows operating system.^1352 Monotype brought a claim
for copyright infringement, apparently based on alleged copying of Monotype’s font software in
the course of creating PFR’s that would work with TrueDoc, as well as a claim for violation of
the CMI provisions. Bitstream moved for summary judgment.
Monotype claimed that TrueDoc’s failure to copy the copyright notice from its font
software programs violated the CMI provisions of the DMCA because it was virtually identical
to removing the copyright notice. The court agreed with Monotype that the plain language of the
DMCA does not require that TrueDoc, itself, physically remove the copyright notices from the
Monotype font software in creating the PFR files. Thus, the court ruled that the mere fact that
TrueDoc did not “remove” the copyright notices, but instead made copies of the font software
without including the copyright notice, did not preclude liability under the DMCA.^1353
Bitstream argued that there should be no finding of a CMI violation because when
TrueDoc retrieved information from the operating system about a font software program, the
operating system did not provide the copyright strings. Monotype countered by pointing to the
fact that the copyright information is accessible through the operating system, and Bitstream
simply chose not to include the copyright notice. Monotype’s expert had examined Bitstream’s
TrueDoc source code and opined that Bitstream was capable of engineering TrueDoc to retrieve
the copyright notice along with the font software information. The court ruled that, viewing this
evidence in the light most favorable to Monotype, the expert testimony created a triable issue of
fact whether Bitstream copied Monotype’s fonts without the copyright notices in violation of the
DMCA. Accordingly, the court denied Bitstream’s motion for summary judgment on the CMI
claim.^1354
Three months later, after a bench trial, the court issued a second opinion ruling that
Bitstream was not liable for either copyright infringement or CMI violations.^1355 With respect to
(^1351) 2005 U.S. Dist. LEXIS 7410 (N.D. Ill. Apr. 21, 2005).
(^1352) Id. at 2-3.
(^1353) Id. at 26-27.
(^1354) Id. at *27-28.
(^1355) Monotype Imaging, Inc. v. Bitstream Inc., 376 F. Supp. 2d 877 (N.D. Ill. 2005).