Israeli court finds against Microsoft in font case

dezcom's picture

Hmmmm

William Berkson's picture

Microsoft paid for Times, I assume. And they paid for their new Cleartype collection. But they imitated Helvetica with Arial, and were sued successfully over Segoe imitating Frutiger. You'd think that paying the creator and foundry would be cheaper than paying lawyers. I really don't understand them, as I really doubt that Zvi Narkis and Eliyahu Koren were making exhorbitant demands for rights.

In an article I posted to the Hebrew section, it was said that Microsoft paid Zvi Narkis after years of his complaints to them. So I don't know how this relates.

Both Narkis and Koren are "type heroes" who devoted their lives to improving Hebrew type and graphic design. So this is also symbolic. Koren died in 2001, and Narkis last month.

brianskywalker's picture

Incredible.

Microsoft still doesn't respect type authors.

Si_Daniels's picture

Hi,

The two fonts in question were licensed by Microsoft in good faith several years ago from the Kivun company and Shmuel Guttman respectively and the case in Israel is ongoing. Hope to be able to provide additional details on its conclusion.

Thanks, Si (Lead Program Manager for Fonts, Microsoft)

abattis's picture

were sued successfully over Segoe imitating Frutiger

Umm, I thought that they were blocked from registering EU Design Rights for Segoe, not sued?

raphaelfreeman's picture

Sii: Kivun made a Word Processor called Dagesh and Accent. Shmuel Guttman was an individual who sold his renditions of fonts to this Word Processing company (at which many of my friends worked at). Since when does Microsoft license fonts from little companies that make word processors.

Surely Microsoft could have picked up the yellow pages and looked up Koren Publishers Jerusalem and asked them if Guttman had the rights to their font? It's not as if nobody has heard of Koren, heck Jerusalem even named a street after the guy for his work on his font (http://albums.phanfare.com/isolated/0KDDZyNj/1/4350281). Funnily enough there is no Guttman Street!

gohebrew's picture

Does Koren own part of Narkiss' designs?

Or does Koren have a valid legal claim to designs inspired by Koren's books, namely a derivative of his Bible face, if that new creation was made in the USA where Koren P. do not have a desihn patent, or copyright on any computer code?

GoHebrew is a legitimate foundry, but KP seems not have any legal rights, except maybe in Israel.

For example, E Koren passed away. His rights ceased. Therefore, Dafka for example, knocks out a Koren font, even though its entire owner lives in Israel.

KP does not protest. Years go by. Hence, what claim does KP have?

William Berkson's picture

Thanks Si and Raphael for commenting. Very interested to see how this develops.

david h's picture

As Simon said -- the case in Israel is ongoing.

> Surely Microsoft could have picked up the yellow pages

Surely Microsoft Israel...

raphaelfreeman's picture

gohebrew: I am confused as to why you think that Koren would have any claim to Narkis's fonts.

regarding whether Koren has copyright over it's fonts, nobody in the world (with the exception of you of course) disputes this.

I don't think you understand what this first part of the court case is about. Please reread the article.

Regarding Davka, (not Dafka), yes they did sell the Keren font and as soon as I started working there, I was in touch with them to ask them to stop selling it and they promptly did so not realising that this wasn't okay. So you are wrong. We did protest and they immediately stopped so your comment is incorrect and unfair to Davka who are an excellent company selling and excellent products which we use! (their website is www.davka.com).

Now if GoHebrew, as a legitimate font foundry, creates a version of the Koren font without the permission of Koren Publishers Jerusalem Ltd, then I'm not sure why you think that this is okay and I wonder if others on this forum also think it's okay for foundries such as GoHebrew to copy other people's designs.

david h's picture

Israel,

Raphael is right. Why to copy Koren?

> ...in the USA where Koren P. do not have a desihn patent, or copyright on any computer code?

So? Why to copy Koren?

Rob O. Font's picture

Si, i don't believe this is clear either, from the same story,

"Indeed, Microsoft argued against the entire system of copywriting fonts: Fonts cannot be copyrighted; they should be considered designs, Microsoft argued."

It must be, that
Microsoft argued against the entire system of copywriting font designs. Font designs cannot be copyrighted; they should be considered objects of utility. At least that was the old argument against even copyrighting them as software.

Surely MS has a lot of expensive copyrighted font software it was not arguing against?

raphaelfreeman's picture

May I just add, that there are 2 Koren families, Koren Siddur and Koren Tanakh.

These were not available digitally until very recently. My first project at Koren was to oversee the digitisation of the Koren Tanakh font (we saw that people were prefering Windows and MacOS over lead for some odd reason :-) ) and now the entire original families are available in OpenType format from www.masterfont.co.il (who has exclusivity our fonts). There are some very cool features in the font, particularly in the Tanakh Bold.

Richard Fink's picture

Pirates Of The Mediterranean, Part I

The two fonts in question were licensed by Microsoft in good faith several years ago

Jeez, sii. Don't you guys "get" font licensing after all these years? No wonder you can't write me up a paragraph explaining it.
But good to know the effort to weasel out is ongoing. ;)

And BTW - the argument that fonts are designs makes perfect sense as a defense. And where else would it be precedent except in Israel?

Ahhh, what do I know.... nuttin'.

(I'd kill to read the briefs and transcipts in English. Anybody got any legal contacts there?)

William Berkson's picture

I hear that a. the Haaretz article is inaccurate, and doesn't get what is going on. b. This case is the first time the Israeli law on fonts that is at issue is being tested. I still don't know what is going on, but very curious...

John Hudson's picture

...the Haaretz article is inaccurate, and doesn't get what is going on.

You've just described every newspaper article I have ever read that related to a subject about which I knew something. Needless to say, this makes me kind of worried about all the articles on subjects of which I am ignorant.

William Berkson's picture

John, I agree wholeheartedly.

I think that maybe the internet can help to correct this habitual failing of journalists. At any rate we should try.

[political discussion deleted by author]

Lawsuits are particularly difficult to cover, as information is weaponry in the suit. It probably takes specialists to get this right, but here they usually only cover the Supreme Court and notorious cases.

quadibloc's picture

Typefaces are designs, while fonts are software. I assume that while Microsoft made use of the design of the typefaces in question, either Microsoft, or the company from which it licensed what it used in its products, originated fonts corresponding to those designs. And so Microsoft is being sued under an unusual Israeli law, which protects typefaces by the copyright law, instead of (as designs) by patent law.

If the allegations against Microsoft, and its response, are both true, then I would expect things to play out like this: the fact that Microsoft may have been a victim of fraud when it licensed the typefaces in good faith would not entitle it to continue using them - it could recover what it owes to Koren from Kivun, if they have the assets, but this wouldn't necessarily be a shield for Microsoft against civil liability the way it is against criminal liability. (Under some circumstances, the court could go tell Koren to sue Kivun, at least to recover damages for past use, but generally acting in good faith doesn't protect one from being liable even when the moral fault is really someone else's.)

John Hudson's picture

...generally acting in good faith doesn't protect one from being liable even when the moral fault is really someone else's.

No, but Microsoft's licensing contract presumably includes a clause in which the licensor affirm that they own the relevant rights and may legally license them to the licensee, accepting liability if this is not the case. That's pretty standard in OEM license agreements.

Uli's picture

The article mentioned above

see www.haaretz.com/print-edition/business/groundbreaking-hebrew-fonts-are-n...

seems to be sort of a hoax or sort of a legal joke.

1) The Israel copyright law does not contain any provisions for the copyright protection of fonts.

see www.tau.ac.il/law/members/birnhack/IsraeliCopyrightAct2007.pdf

2) The Israel copyright law as a national law is not binding for any foreign country, especially here it is not binding for Microsoft as a USA company.

3) Both Israel and the USA are members of the RBC (Revised Berne Convention), but the USA became a RBC member four decades after the publication of the 1950 Hebrew fonts mentioned above.

see www.wipo.int/treaties/en/documents/pdf/berne.pdf

4) So, even if the 1950 Hebrew fonts were copyrightable as per the Israel copyright law (which they are not), this would be irrelevant for Microsoft, because the USA became a RBC member in 1989, while the 1950 Hebrew fonts were issued forty years earlier.

quadibloc's picture

National laws are always binding on foreign companies doing business in the relevant country. One may not be able to arrest those who are physically in foreign countries, but everyone within a country must obey the laws there, and assets within the country can be seized, the continued ability to do business in that country can be ended, and so on.

However, your other points are interesting, and could well mean that Microsoft has nothing to worry about.

brianskywalker's picture

> The RepubliCON party. Motto: "Conning the public since 1980"

I agree with this argument wholeheartedly, except for one thing: the same is true of Democrats.

typerror's picture

You eyes must be brown William :-)

According to the Associated Press several weeks ago the rich are spending less and the misery is trickling down Bill. So tax them more and they will hold onto their money, just like the corporations are dong now, and it just makes the recession cycle worse.

To correct a point , tax revenues went up during Kennedy's, Reagan's and Bush's tax cuts.

Explain that away, please.

typerror's picture

No don't Bill, this is not a political forum and I do not know why you even went there.

Sorry, I could not erase my retort to Bill.

William Berkson's picture

Michael, you can just click on "edit" and remove content. A blank post will remain, I think.

typerror's picture

It had already run out of time.

William Berkson's picture

I've also removed my original political content, as you're right it is out of place.

I don't understand how it can be out of time to edit yours; I just edited mine, which is older.

Edit: I just checked another thread dating back to June, and not started by me, and the "edit" link was there at the bottom left, just as in this thread. And it worked in opening the comment.

typerror's picture

After a certain amount of time the edit function disappears.

quadibloc's picture

I think you have to be a paying member of these forums to have certain functions available. I know when I post, "edit" is only an option under the post for a very short period of time after I post it.

typerror's picture

So much for it being a free forum... hmmm, almost sounds capitalistic, god forbid. Tax it dammit!

William Berkson's picture

That's weird. Hopefully one of the admins can clarify what is going on. Here I was thinking that Michael can't bear look to the Left side :)

ps. I did contribute, but didn't know it affected any functionality. This was not advertised.

brianskywalker's picture

I could probably delete mine if the edit link was there... /shrug

eliason's picture

Maybe being the thread starter gives you nonexpiring edit links.

raphaelfreeman's picture

What is inaccurate about the article. I just reread it. It seems pretty accurate to me.

William Berkson's picture

Raphael, I don't know what is inaccurate, if anything. I heard that a knowledgeable Israeli type designer said that it is inaccurate, and my experience with journalism made me predisposed to think there was something in the complaint. But you are in a position to know, so I appreciate your commenting. I will try to dig into this further, to find out what is the complaint about the article.

Baruch Gorkin's picture

The Haaretz article is hugely inaccurate. I just downloaded the pdf of the decision (in Hebrew).

Here is the deal:

1) The "most popular Hebrew sans-serif" is not at issue here at all. That is a whole other story in itself. I did the design of the Arial Hebrew for Monotype (who licensed the font to both Apple & Microsoft), so I happen to know it. Firstly, it is true that Zvi Narkis made claims against my Arial design back in the 90's. Unfortunately, despite clear expert opinion Microsoft obtained that Arial was an original design and not a copy of "Narkis Tam", they chose to settle with Zvi Narkis instead of litigating. Interestingly, one of the plaintiffs in the current case – Zvika Rozenberg – was consulting Apple on the development of the Hebrew fonts [Apple was intimately involved in the process, while Microsoft licensed the already existing font] and was involved during my Arial creation process. What IS at issue in the current case is an alleged misuse of the font "Narkisim" (which NOT a sans-serif font at all). Even the illustration in this Haaretz article uses the wrong fonts, not "Narkisim".

2) I only quickly scanned the court decision, but it is clearly not the end of the case. The merits of the claims were not at all discussed here, the decision pertains ONLY to the definition of the legal protection enjoyed by fonts. It is a long document full of learned back-and-forth on whether fonts are to be considered "designs" or "intellectual property". The decision was "intellectual property" (in original Hebrew "creator rights").

3) There is nothing in the decision about any restraining order prohibiting further usage.

4) The legal costs are to cover FOR THIS PARTICULAR part of the case by the losing side – the defendants.

The merits of the case are still to be argued, it would be interesting to see what the claims are.

William Berkson's picture

Thanks, Baruch, that is very helpful. But what I am puzzled by is why Microsoft would argue that they are "designs" rather than "intellectual property". I think their fonts are generally protected in the U.S. as software, not as as designs. —I'm sure I will be corrected here if I got it wrong.

If so, it would appear, as David Berlow says above, that Microsoft was, in effect, arguing against itself.

Does this have to do with the different definitions of "design" and "intellectual property" in the two countries? Can you shed any light on this? What is at issue here is still not clear to me, either in the current ruling, or the case going forward.

Richard Fink's picture

Baruch,

I haven't gotten any responses to my emails as yet.
Could you post the PDF somewhere? Just the exact names of the law firms and plaintiff would be of help. Dates, too.

There must also be, at least, the complaint that started the suit - and, obviously, briefs if the court ruled on an issue.

"the decision pertains ONLY to the definition of the legal protection enjoyed by fonts."

Based on this, it seems likely that MSFT's lawyers did indeed challenge the KIND of legal protection the font is entitled to.
This makes sense and was probably smart lawyering. If the judge had ruled differently, the whole thing would have gone away. I'm assuming the lawyers are being paid to win the case, with whatever line of argument needed to win it.

Baruch Gorkin's picture

Richard, I just made the decision pdf available here: http://www.sendspace.com/pro/wtzfqk
Plaintiffs: The Estate of Zvi Narkis, Koren Publishing House, Zvi Rozenberg, Mastefont (Zvi Rozenberg is the owner of Mastefont)
Defendants: Microsoft Israel, Microsoft Corp
The court decision was rendered on October 5, 2010

William, I do not know the merits of the case and thus the reason behind Microsoft's attempt to frame the legal protection of fonts this way. I can only assume it was a move to shorten the litigation (if they would have won at this stage, the merits of the case would have become irrelevant, as Richard just wrote), or perhaps they really have nothing else in their arsenal? I am very surprised they didn't just settle the mater out of court though.

Baruch Gorkin's picture

I will say this though: regardless of the merits of the case and its eventual outcome, this decision is good news for anyone doing Hebrew type design.

John Hudson's picture

Baruch, does the intellectual property decision refer to fonts, i.e. to the software implementation of a typeface design, or to the typeface design? This is not clear from your summary, and it is an area in which many countries make a distinction, e.g. as in the USA recognising copyright protection for fonts as software but recognising design patent protection for typeface designs. It is important to be clear about what is subject to this decision, the font software or the design itself or both.

Baruch Gorkin's picture

John, the decision was about the design itself, not the digital fonts. The claim is against an "unauthorized digitization" of these Narkisim and Koren designs by a third party.

Moreover, it is a well-established law in Israel that the design itself is protected. The question here was not 'weather' it is protected, but rather 'under what rubric' does this protection fall? If a font is to be protected as a "design" – מתגם, then there is a time expiration on this protection (like with a patent). If they are to be protected under "creator rights (copyright)" - זכויות היוצרים, then the protection either doesn't expire at all or has a much longer shelf life (I am not clear on that last point). This question is irrelevant for newer designs that are protected in either case, but the designs in question date back to 1950's, so it is very relevant indeed.

[Btw, the idea of a separate hearing on this purely legal issue was (according to this decision) proposed by the Judge himself in a pre-trial hearing back in March and accepted by both sides. Thus they can now proceed with the actual case based on this decision. My guess is that Microsoft will attempt to settle the case and might go after the entity that licensed the fonts to them in the first place.]

John Hudson's picture

Thanks, Baruch. That was the clarification I sought, and it is an important one.

david h's picture

> Microsoft...might go after the entity that licensed the fonts to them in the first place.

pp.7-8, section 14: they are saying that they have a license (Narkisim); maybe from that entity?

> the decision was about the design itself, not the digital fonts... but the designs in question date back to 1950's, so it is very relevant indeed.

Read pp.21-22, section 35: Shamgar's ruling (was President of the Israeli Supreme Court), the case of Interlego.

That said, font design, font software, or whatever the name, is one package.

William Berkson's picture

Baruch, that's helpful, thanks. I can't find the word מתגם in the my Alcalay dictionary, and Google translate doesn't know it either. Is that the correct spelling? Do you know whether "zechuyot hayotzrim" is legally the same as "copyright," or whether something else is going on here? As I said, the puzzling thing here is whether Microsoft had been arguing against copyright, which protects its fonts in the U.S., as I understand it.

Baruch Gorkin's picture

That said, font design, font software, or whatever the name, is one package

John's question was whether design alone is protected; and it is.

Baruch Gorkin's picture

William, the US copyright law is not relevant here, the question is usage in Israel. I misspelled the word מדגם

quadibloc's picture

If Microsoft's fonts are protected as software, why would they say they were designs? I think that confuses something: while the fonts are software, those were not copied - only the designs might have been.

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