ПРУФ!!!!
прочтите лицуху и цитаты в студию!
а иначе - это личное, неквалифицированное*, мнение и ничего больше.
А шрифты могли попасть вместе MS Word/PowerPoint Viewer.//но я это не проверял//
*т.е. человека который не имеет юр. образования и юридической практики по вопросам лицензирорвания в РФ.
Прошу прощения, дорогой друг. С глубочайшим прискорбием сообщаю, что лично у меня есть несколько строгих правил:
1) не общаться с людьми, которые сугубо экспрессивно вступают в середину беседы, но не здороваются с присутствующими;
2) не общаться с людьми, которые не знают или катастрофически коверкают свой родной язык;
3) не общаться на юридические темы (в частности - о лицензионности тех или иных ОС или ПО) с т.н. "специалистами", которые не удосужились даже прочитать хотя бы одну лицензию.
А в данном случае (на шрифт Times New Roman Regular и дериативы) она такова:
Название: Times New Roman
Стиль: Regular
Тип: шрифт TrueType
Версия: 3.00
Авторское право: Typeface © The Monotype Corporation plc. Data © The Monotype Corporation plc/Type Solutions Inc. 1990-1992. All Rights Reserved
Описание: This remarkable typeface first appeared in 1932 in The Times of London newspaper, for which it was designed. It has subsequently become one of the worlds most successful type creations. The original drawings were made under Stanley Morison's direction by Victor Lardent at The Times. It then went through an extensive iterative process involving further work in Monotype's Type Drawing Office. Based on experiments Morison had conducted using Perpetua and Plantin, it has many old style characteristics but was adapted to give excellent legibility coupled with good economy. Widely used in books and magazines, for reports, office documents and also for display and advertising.
Как видно из приведенной выше информации, лицензия Monotype Corp. является собственнической, то есть проприетарной.
А вот - чудеснейший пример лицензионного разбирательства по поводу "стандартных шрифтов" именно с этой компанией (если ОЧЕНЬ кратенько):
http://openjurist.org/43/f3d/443/monotype-corporation-plc-v-international-typeface-corporation-international-typeface-corporation43 F.3d 443
41 Fed. R. Evid. Serv. 86
The MONOTYPE CORPORATION PLC, a corporation organized and
existing under the laws of England,
Plaintiff-Appellee, Cross-Appellant,
v.
INTERNATIONAL TYPEFACE CORPORATION, organized and existing
under the laws of New York, Defendant-Appellant,
Cross-Appellee.
INTERNATIONAL TYPEFACE CORPORATION, Third-Party Plaintiff,
v.
MONOTYPE, INC., an Illinois corporation; and Monotype
Typography, Inc., an Illinois corporation,
Third-Party Defendants.
Nos. 93-35478, 93-35511.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 4, 1994.
Decided Dec. 21, 1994.
M. Margaret McKeown, Seattle, WA, Paul Stack, Stack, Filpi & Kakacek, Chicago, IL, for plaintiff-appellee-cross-appellant and third-party-defendants-appellees.
Richard Stephen White, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, WA, Nathan J. Waldman, Sperry, Weinberg and Waldman, New York City, for defendant-appellant-cross-appellee and third-party-plaintiff-appellant.
Appeal from the United States District Court for the Western District of Washington.
Before: WOOD, Jr.,* HUG, and TANG, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge:
1
Ordinarily when we read a printed page we are seeking the meaning conveyed, but in this case we are required to look beyond the page into the very competitive international typeface business. To some extent we must consider the various typefaces, their history and development, the business relationships of competitors, and other aspects of this unique business. Even so, only ordinary issues of contract, evidence, instructions, the conduct of the trial, and related issues are involved. The problems initially arise because typefaces are not afforded copyright protection which has permitted popular typefaces originally developed by one to be easily and closely copied by a competitor without compensation.
FACTUAL BACKGROUND
2
The Monotype Corporation PLC ("Monotype"), plaintiff, is an English corporation founded in 1897 for the purpose of manufacturing and selling the Monotype typecaster, an ancestor of modern practice. The rights to manufacture and sell these typecaster machines were purchased from the inventor. As Monotype grew, so did the demand for its typefaces. David Saunders, a long-time employee and keeper of the Monotype historical records, identified at trial Monotype books from as early as 1910, which showed the variety of typefaces offered by Monotype. In the 1930's Monotype retained some of the most recognized experts to design its typefaces, one of whom in 1931 designed one of the most popular typefaces, Times New Roman.
3
International Typeface Corporation ("ITC") was organized in 1969 in the United States to promote typeface design in this country through voluntary agreements among competitors not to copy or simulate the work of ITC designers. Before ITC was established copyright protection was not available, and segments of the industry would copy popular typefaces developed by another to market it without making royalty payments to the designer. ITC was therefore created to offer subscribers typefaces from the best designers, and to create a demand for these typefaces by investing in their promotion under trademark names. It is through ITC's "Subscriber Agreements" that the license to distribute ITC's typefaces could be obtained by another in the market. Under the agreement, each company paid ITC a royalty fee for each ITC typeface it distributed.
4
Monotype and ITC entered into ITC's standardized "Subscriber Agreement" in 1979. Both companies recognized a need for expansion that each company thought the other could help fill. The purpose of the agreement was to ensure that Monotype would pay royalties to ITC for the ITC designs which Monotype distributed to its own customers. In return for the royalties, ITC would promote the licensed typefaces and subscribers as people who voluntarily followed an ethical code. The agreements are terminable on ninety days notice at the option of the subscriber. Subsequent to the execution of the agreement, the companies each engaged in their own businesses. Monotype paid ITC royalties for ITC Alphabets which Monotype distributed to its customers.
5
The Subscriber Agreement (which by its terms represents the entire agreement of the parties) contained the following provisions which are at issue:
6
1. Except as otherwise agreed to in writing, any Alphabets licensed by ITC may only be faithfully reproduced by the Subscriber without modification ... and only from artwork or drawings supplied by ITC and the Subscriber shall not, directly or indirectly, produce, sell, or offer for sale, lease or otherwise dispose of any ITC Alphabets, regardless of whether they have or have not been licensed hereunder, to anyone in any manner other than pursuant to all of the terms and conditions of this Agreement, nor shall the Subscriber create or offer to its customers any weight or version of a licensed Alphabet which is not available from ITC.
Alphabets were defined thusly:
7
"Alphabet" shall mean a set of all the letters of the alphabet.... Each weight or version of a single typeface design such as Roman or Italic in an expanded or condensed or outline form, for example, without limitation, shall be considered as a separate Alphabet.
8
Following formation of this relationship between Monotype and ITC, another company, Adobe Systems, developed a computer software program called PostScript. Adobe worked in conjunction with Apple Computers to develop a PostScript device for the LaserWriter, a printer marketed by Apple. Initially included with the LaserWriter were thirteen typefaces in PostScript format. Adobe and Apple later added twenty-two additional typefaces to the LaserWriter set. This collection of thirty-three typefaces and two symbols is known as the "Laserwriter Plus 35," which quickly became the industry standard.
9
In the early 1990's, Microsoft decided to assemble a collection of typefaces for its Windows software program. Microsoft wanted a collection of typefaces in computer format to compete with those offered by Adobe in PostScript format. The typefaces had to be of the same "width metrics"1 and of similar style so the documents created with one set of core fonts could print on a system using another set of core fonts. Adobe set the width metrics for nine of the ITC typefaces used in the LaserWriter.2
10
Monotype submitted a list of typefaces for Microsoft's consideration. Included in Monotype's offering were competitive substitutes for the original thirteen typefaces. Later, Monotype offered Microsoft a competitive list of all thirty-five typefaces except the nine ITC typefaces and ITC Zapf Dingbats.3 Monotype also offered Microsoft the right to license the ITC typefaces at the royalties set by ITC. Microsoft believed, based on the advice of its type director, that the royalties would be excessive in light of the anticipated volume of constraints since similar typefaces could be offered under other names without the payment of royalties.
11
Microsoft then expressed interest in licensing from Monotype the typefaces competitive with the ITC typefaces and ITC Zapf Dingbats. Monotype claims that it then went into its archives and located several old typefaces that, with some modifications, could meet the Adobe width metrics. The modification process began around March 1991. Subsequently in September 1991, Microsoft accepted Monotype's proposal and the Monotype typefaces were released as part of the "Microsoft Font Pack." ITC claims, however, that Monotype did not go back into its archives and independently create these typefaces. ITC asserts that Monotype "cloned" the ten ITC typefaces to make Monotype's "competitive typefaces."
12
The disagreements between Monotype and ITC escalated. Monotype claimed ITC disrupted Monotype's relationship with its customers causing concerns about possible liabilities that could arise if the particular Monotype products were used without ITC licensing. Monotype then brought this case alleging seven causes of action seeking injunctive, declaratory relief and damages.
13
The case was bifurcated for jury trial. Phase One dealt only with the issue of whether or not Monotype had breached its subscriber agreement. Monotype offered the testimony of Robin Nicholas, the typographic origination manager for Monotype. He testified that the nine typefaces involved could all be traced back to their early origins and subsequent induction in Monotype's library long before the creation of ITC.4 ITC argues that the Subscriber Agreement clearly forbid Monotype from offering a "version" of an ITC typeface. Its position is that the word "version" has a broad meaning and prohibits a similar typeface to that of an ITC typeface, rather than a mere style variation. Thus, ITC argues that the Monotype typefaces were "versions" of the ITC 10 and "equivalent" to each other. Monotype denied the ITC interpretation. The jury, in a special interrogatory constituting its verdict, answered "No" to whether or not Monotype had breached the agreement.
14
The trial court entered judgment in favor of Monotype and enjoined ITC from communicating to others that Monotype was using copies of ITC typefaces. The court then ruled as a matter of law on the remaining counts. Those issues and the appeals and cross-appeals that followed will be examined as part of Phase II.
PHASE I
15
In this phase we examine the jury trial issues which generally involve admission of evidence, instructions, court imposed limitation on the length of the trial, and the relief granted to Monotype.
A. Evidentiary Rulings
16
"Evidentiary rulings by a district court are not reversible absent clear abuse of discretion." McGonigle v. Combs, 968 F.2d 810, 818 n. 6 (9th Cir.1992) (citing Jauregui v. City of Glendale, 852 F.2d 1128, 1132 (9th Cir.1988)). A district court's Rule 4035 ruling is reviewed for an abuse of discretion, and will not be reversed absent a showing of prejudice. Larez v. City of Los Angeles, 946 F.2d 630, 638 (9th Cir.1991).
17
ITC states that under United States v. Smith a de novo standard of review is appropriate. United States v. Smith, 924 F.2d 889 (9th Cir.1991). ITC, however, misreads the holding. That court held that a district court's construction of the Federal Rules of Evidence was subject to de novo review, but the questions of admissibility involve factual determinations, and thus are reviewed for an abuse of discretion. Id. at 895.
18
The district court rejected three pieces of evidence introduced by ITC: (1) The Berlow Report; (2) The Norton Report; and (3) The Dennis Adler E-mail.
19
(1) The Berlow Report
20
The Berlow Report is a single-page document prepared by David Berlow, a principal of Font Bureau, a company that specializes in the design and production of digital typefaces for computer formats. Berlow had a relationship with ITC while Monotype was developing its typefaces. In September 1991, Berlow was retained by Microsoft for the purpose of assisting in the conversion into computer format of certain typefaces developed by Monotype.
21
ITC's Vice President contacted Berlow and told him that Monotype had made copies of ITC's typefaces. Subsequently Berlow contacted Steve Shaiman of Microsoft by E-mail and stated he had "finally determined for certain that some of the faces that we are being asked to work on, are not legitimate versions." Berlow then expressed his opinion that Monotype had copied the ITC typefaces. Berlow testified that the Monotype typefaces had the same width metrics as the ITC, were "functional equivalents," and violated the "code moral" of ATypeI, a typographical trade association. At trial, ITC first argued this report was an admission by a party-opponent, but ITC could not prove Berlow was an agent for Monotype. Then ITC argued that it was a memorandum that should fall within the business records exception. The district court held, however, that the Berlow report could not be admitted under Rule 403. First, the court explained Berlow's opinion was based on a moral code of the industry and his own beliefs as to certain typefaces. The court therefore held that this did not represent a useable standard for opinion testimony which would assist the jury. Second, when Berlow made his initial statement that the Monotype typefaces were copies, he had never seen the actual Monotype typefaces. The court held that even if the report did have relevance, it would be prejudicial and would confuse the jury.
22
It does not appear that the district court abused its discretion in excluding the Berlow report. Berlow's opinions have little basis when made without an actual comparison. Further, Berlow's statement that Monotype's conduct violates a typographical association's moral code, not part of the agreement, would only confuse the jury. Berlow was not testifying as an expert and the jury might also give the association's code too much weight for what it represented. The district court therefore did not abuse its discretion in excluding the Berlow report under Rule 403.
23
(2) The Norton Report
24
Norton was a typographical engineer who worked for Microsoft from March to October 1991 as a consultant to review the work Monotype was doing for Microsoft. On October 29, 1991, he prepared a three-page document in which he expressed his views as to the similarities and differences between the typefaces. Norton testified the report was unsolicited by Microsoft and that he did not retain a copy of it for himself. At the time he wrote the memorandum he had neither seen the ITC-Monotype agreement nor did he have any knowledge the agreement might have been breached.
25
ITC argues the Norton report should be admitted under the business record exception to the hearsay Rule 803(6).6 The flaw in ITC's argument is that the Norton report is not the type of report Microsoft was in the practice of making in the regular course of its business. The district court therefore held it was not admissible. The court found that the witness, Norton, expressed some "off-hand impression" that he put on paper for the review of a few people. That, the court held, did not make it a business record for the purposes of the rule.
26
ITC also argues the report constituted an admission by a party's agent concerning a matter within the scope of the agency under Rule 801(d)(2). Monotype answers that ITC waived this argument because at trial ITC's counsel conceded the Norton report was not an admission by Monotype. ITC refutes this by stating that ITC counsel argued that the Norton report should be admitted not as a direct admission by Monotype, but as the admission of a co-participant in an overall business plan. This adoptive admission argument appears to be no more than a last effort to get the report admitted. It is difficult to conceive how a person hired by Microsoft to review Monotype could thereby be constituted as an agent of Monotype.
27
The district court did not abuse its discretion in excluding the Norton report from evidence.
28
(3) The Adler E-mail
29
Dennis Adler, an employee of Microsoft, received an E-mail transmission October 21, 1991, from David Berlow. This was the same E-mail mentioned earlier in which Berlow stated he had "finally determined for certain that some of the faces that we are being asked to work on, are not legitimate versions." The next day, Adler prepared an E-mail message to another Microsoft employee concerning ITC's charges of typeface copying. In this message, Adler urged caution and expressed a highly derogatory and offensive description of Monotype's type director, Rene Kerfante.
30
ITC claims this E-mail transmission should have been admitted as a business record because Adler was knowledgeable about the Microsoft-Monotype transaction, was writing the E-mail to his superior, and the record was kept in the course of regularly conducted business.
31
The district court rejected ITC's arguments and granted Monotype's motion in limine to exclude Adler's E-mail. The court ruled it was inadmissible under Rule 403 because the prejudicial nature of the evidence outweighed any of its relevancy. Because of the nature of the derogatory remarks, the district court was correct in excluding the Adler E-mail. ITC still, however, maintains that the E-mail memo should be admitted under the business record exception. ITC argues that an E-mail to a superior at Microsoft is kept in the regular course of business.
32
ITC supports this argument with United States v. Catabran, 836 F.2d 453 (9th Cir.1988). Under Catabran, the Ninth Circuit held that computer printouts were admissible under the 803(6) business exception once a proper foundation had been laid. Id. at 457. The computer printouts involved were printouts of bookkeeping records that were entered into the computer on a monthly basis. Id. The difference between Catabran and the present case is that E-mail is far less of a systematic business activity than a monthly inventory printout. E-mail is an ongoing electronic message and retrieval system whereas an electronic inventory recording system is a regular, systematic function of a bookkeeper prepared in the course of business.
33
The district court properly excluded the Adler E-mail transmission.
34
We find no evidentiary errors.
B. Trial Time Limits
35
The imposition of time limits, a factor that goes to the fairness of the trial, is reviewed for an abuse of discretion. Hansen v. Commissioner, 820 F.2d 1464, 1467 (9th Cir.1987). "Trial courts have discretion to place reasonable limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence." Johnson v. Ashby, 808 F.2d 676, 678 (8th Cir.1987). Courts have, however, disapproved of rigid hour limits on trials. See Flaminio v. Honda Motor Co., 733 F.2d 463, 473 (7th Cir.1984).
36
At a pre-trial conference, the court inquired how long the trial would take. ITC responded that it would need three weeks. The district court bifurcated the trial, allowed seven days for trial, and divided the time equally among the parties. The court's order provided that "any party may apply at trial for relief from this order for good cause." On December 7, 1992, ITC asked the judge for more time to present its case. The court amended the schedule to nine days.
37
ITC contends that it had to carry the burden in explaining the background of the typeface industry and the marketing of typefaces. ITC therefore argues it needed more time to make such a presentation so the jury could understand the case. ITC states the time limitation forced it to restrict its presentation and delete the testimony of ITC's Vice President. ITC did object to the trial limitation, but it did not argue how it was damaged by the time limits, nor state what additional time was needed. A crowded docket does not justify an infringement on the right to reasonably develop a case; however, the objecting party must show there was harm incurred as a result. Monotype asserts ITC had ample opportunity to request additional time, but did not do so. ITC responds that the judge's comments discouraged the request. The better place for ITC to make the time argument, however, was there, not here.
38
We find no abuse of discretion.
Остальную часть судебного разбирательства (она не влезла в форумное ограничение в 30 000 знаков, поэтому я не смогу процитировать его целиком) см. по приведенной выше ссылке.
Так что, основываясь на приведенном, прошу прощения, уважаемый
ShadowUser15 (равно как и присоединившийся к Вам
denkin), что сначала я отправлю вас (кхм!) - ну хотя бы внимательно изучать указанное решение суда. Когда изучите - обязательно появляйтесь: буду искренне рад дальнейшему общению.
И потом, прочитав решение суда, попробуйте заявить и (заодно) доказать, что обсуждение лицензионной чистоты шрифтовой поддержки НЕ входит в общую дискуссию о Libre Office.
Тема: Установка шрифта Times New Roman (Прочитано 61117 раз)
