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In this decision in Agfa Monotype v. Adobe Systems, the United States District Court for the Eastern District of Illinois ruled that the “embedding” bit in the TrueType specification is not an effective technological measure controlling access to any copyrighted work, and thus cannot be the subject of a section 1201 DMCA claim.

The “embedding” bit tells software whether it may include full copies of the font file in documents it creates (“embed” the font), so that downstream users of documents created using the font may edit the text using the same font. Adobe Acrobat 5.0 allowed users to embed any font, whether or not the bit was set. Plaintiff Agfa, a distributor of TrueType fonts, alleged that the software was a tool permitting users to circumvent a technological measure effectively restricting access to the font — namely, the embedding bit.

The court relies on Chamberlain and Lexmark to hold that in order to be effective, a technological measure must actively prevent unauthorized access. Merely expressing a preference about which uses the creator wishes to allow renders the technological measure ineffective. Because the TrueType “embedding” bit doesn’t actually prevent anything from happening (since the copyrighted work itself is not encrypted or otherwise blocked), software that ignores the bit is not an illegal circumvention device.

If this trend continues, other passive markers that indicate copying permissions can likely be ignored without running afoul of the DMCA. Other systems like this include the “copyright” bit in the Red Book audio CD specification, the SCMS copy-protection bits on DATs and MiniDiscs, and the broadcast flag. While there’s no DMCA problem with ignoring these bits, in the last two cases there are other sui generis anticircumvention rules in place (like these).

This is another signpost on the road to stopping DMCA abuse. There’s now a critical mass of reasonable DMCA opinions that render a citation to some unpublished case from the Western District of Washington much less persuasive than it once was.