Our colleague won two more cases against Font Software pirates last couple of weeks.
First case. Designer Sirotkin vs Eksmo (major Russian publisher used the font on book cover)
Compensation $67 000
Second case. Designer Sirotkin vs Azertea (Tea distributor used the font on a tea package)
1. $26000 compensation;
2. Defendant must withdraw from the civil turnover of the Russian Federation and destroy the counterfeit tea "Azerchai" made using the font, as well as labels and packaging to it;
3. three types of goods recognized counterfeit;
4. Defendant obliged to publish the decision in major business newspaper Kommersant ();
5. Banned the production, storage, transportation, offer for sale, sale, shipment and other introduction into civil circulation of counterfeit tea.
Comments
Upon reflection, I have decided that even it if is it's worth me saying something.
Though there certainly are some instances where wrongdoers deserve to be publicly shamed there are more honest mistakes (especially in the world of font licensing). From the brief descriptions I see here both look of these seem to be in the second category.
Both of the infringements listed here are for print uses that would be permitted by many font EULAs. So it seems very likely to me that the infrigers just didn't understand that the licensing they were working with was more restrictive. Therefore, even if it is ok to publicly shame them in the culture they inhabit, the word "pirate" seems misplaced.
Sure, people "should" read EULAs and they should know better but it really isn't their fault that the entire software industry has trained all of us that they don't have to and they won't get into trouble as long as they don't crack the software. Nor is it there fault that isn't true in fonts. I have always advocated for compassion towards license violators. This forum is public and I don't like that potential font licensees can see this and think that we are all celebrating over heads on spikes.
As an additional matter, I don't see why the non-monetary portions of the settlements are so harsh. The infringers have paid so shouldn't they be allowed to use up back stock if not continue use? And, the requirement that they publicly advertise the settlement does not feel just to me.
This whole thing feels very bloodthirsty and counter to the image I want our industry to have in the world. If this was how we all behaved we would deserve to be put out of business by Google and free fonts.
The Eksmo case seems rather an open-and-shut case to me from both legal and moral standpoints. I would expect a *book publisher* to be acutely aware of the legal status of the fonts they use. You can't really feign ignorance of a font EULA when your business is centered around printing text. Even if you subcontract cover design to independent subcontractors, it's the job of your legal team to make sure they haven't unlawfully used a copyrighted font or a photograph.
You could claim that Kuban-Tea (the owner of the Azertea trademark) is not a company that has someone that reads font EULAs on payroll, but whether they've outsourced the design or it has been drawn by someone they employ, it's not that hard to check the legality of the result. If you google the name of the font, the first two links lead to Mr. Sirotkin's LiveJournal where he says without any legalese that it's a paid font and you cannot use the demo file for any commercial purposes.
The lawyer's webpage also says that Kuban-Tea has been repeatedly warned about their copyright infringement, but the company has not responded. They haven't been sued out of the blue. I'm sure they could've settled the matter out of court in a more peaceful manner if they wanted.
However, the law is a bit weird since Mr. Sirotkin had to sue the ultimate distributors first (a book shop and a grocery shop), and they definitely were acting in good faith. Unrelated contracts that I work with at my day job always have a clause that allows us to seek compensation from the other party if their work or goods cause us to get sued, so I hope they had the same clause in their contracts with the publisher and the tea company.
1) Real life examples are helpful to see!
2) Name and shame.
The licensees here may not frequent this forum, but some of us do. Some of us consider ourselves part of the font community. I would not want to see my employer named and shamed, and I see first hand how difficult it is to assure adequate licensing throughout complex workflows.
Joyce shared a recent talk for Extensis customers, a short quote:
It talks of the five habits of highly ineffective font licensing:
- No style guide
- No Font Server
- Too much delegation to contractors
- Lack of legal vetting
- Thinking all fonts are licensed the same
This is good guidance, and I agree with it. But, it is difficult to practice across a global organization, where there are thousands of autonomous employees who are trying to fulfill their own objectives. Misuse is uncommon, but it is still misuse. Misuse on a single product can quickly grow into a serious violation. This is an example of licensees trying their best and failing. Some view as laziness, some as honest mistakes.Not the legal team, a small permissions team or someone who does it on the side of a full-time role. There are so many people buying in products, producing new products, subcontracting products, republishing old products across locations, with different team sizes who speak different languages, live in different time zones, and have different attitudes and cultures.
Book publishers don't get tingly feelings for font misuse in printed text – it's not a magic skill, but something that that we must labour over.
I'm reassured that these particular violators are in that minority. So I will discuss the general issues raised rather than these specific cases.
There is a logic to the argument that a book publisher should be expected to live to a higher standard. But I think that falls apart under scrutiny - especially with print based infringements which can't be stopped by a font server. Further, with the increase in font licensing the risk of accidental infringement increases exponentially. If I had @Katy Mawhood 's job I wouldn't measure success by never having infridgments because then I'd always see myself as a failure. I'd aim for a 2% infringement rate and call 5% a win. I can get into the details of why I say this in a later post if someone wants me to.
In both of these cases the most common type of licensing model wouldn't have even sent up an alarm bell. I see print uses of our fonts associated with brands that don't have a license but who's outside contractor does and is permitted to create image files for their use all the time. I bring this up not to argue the fairness of print based add-on licensing requirements but to point out that many people who have familiarity with font licensing will only be aware of our model and not know that some other foundries don't permit it. That very clearly doesn't relate to these cases if they only had demo licenses but there are many superficially similar cases where it would be a very good reason to assume the infringement was accidental.
I would never dream of to telling anyone what licensing model to have. I can see the argument for almost all licensing models that exist. I would, however, strongly suggest that if you choose one that is more restrictive than that which is most commonly seen that you need approach enforcement with a proportionately greater degree of sympathy and willingness to be cooperative.
There's a whole other wasps' nest in here about who the responsible party should be in an infringement but I'll leave that for now.
*I wrote this about the same time as @Katy Mawhood wrote her posts and hadn't seen hers when i published my post. She pretty clearly explains what I was hinting at in my third paragraph
If a Futura package from foundry A costs $50 and its EULA permits editable embedding into documents including documents that are commercial products, while a Futura package from foundry B costs $35 but its EULA restricts embedding quite a lot, and more liberal embedding options are only available at a premium license that costs $350, then the Futura from foundry A offers much more rights for only a small price difference, i.e. to a number of users would effectively be a "cheaper" option despite costing $15 more.
The problem is really just that the competition on license terms is obscure — which is surprising, because most font distributors aren't actually selling fonts, they're selling licenses. But they rarely present the products they sell (i.e. licenses) in a prominent, comprehensible way.
Because of the old "we cannot provide a tldr summary friendly for end-users because it's legal stuff and it has to remain intact" attitude, it's very hard for users to make educated comparisons of what they're buying, so in the end users often end up making purchases in ignorance. And the case cited here shows that ignorance indeed isn't bliss.
So I wouldn't necessary call for unification or standardization of EULAs, but I would call for simplification.
The EULAs don't need to provide identical rights and restrictions, but the way they provide the rights and restrictions, the way they define the terms, the way they communicate exceptions — that could be based on a common subset of legal language that is specific for fonts.
Then, the distributors could safely summarize and compare the terms and make distinctions clear to users. I don't think that would constitute any kind of cartel operation.
In the end, after looking at a subset of the 2000+ EULAs that are or had been, at a time, in use at MyFonts, I think there is a lot of implicit standardization going on already. Many EULAs are copy-paste with some modifications, some of those mods are minor, others are major, so it's hard to make out the difference.
The effort for an end-user to compare hundreds of legal documents is massive. So I wouldn't wonder if the more educated users will more and more settle for offerings from larger, more dominant foundries just because they would have lower entropy in their legal obligations.
This is already visible in the opensource software and font world: a small number of clearly-written licenses is preferred over lots of ad-hoc improvised sets of terms.
Stories like the one described here will likely make frequent font buyers re-think their future purchases.
Do I really want to track 150 licensing documents and remember that one of them restricts me from using a particular font in some country, or for some particular purpose? Or will I choose some subscription model and get access to just one large font library but without the hassle of legal fragmentation?
Remember: a frequent font buyer may already have some 100+ different "contracts" that they have entered so they are bound by a massive amount of law. Using the font menu in an app to change one font to another actually constitutes a major change of a contract that governs the publication I'm working on, and if I use several fonts in a publication, this gets really complex.
This is real life. Most of the users don't realize this, really, but they start realizing it more and more.
Currently, there still is no easy way for end-users to manage their font licensing obligations. Switching a font using an app's font menu is easy, but then finding out what that switch means legally to the publication I'm working on is arcanely hard.
For the design work I do myself (and it's not much) I tend to use commercial fonts from a very small pool of foundries plus opensource fonts released under the OFL, even though I often know of commercial alteratives that I would like better (and I would have the budget to buy).
But the thought of adding another set of EULA terms to the pool of legal obligations I've already subscribed to makes for a quite successful deterrent for me. So I optimize for simplification and low entropy.
I've always known that a lot of terms don't have standard meanings. For this reason we refuse to use "enterprise", "oem", "buyout" and a few others in any of our contracts. However, when I prepared my lecture for the extensis event last month (which Katy linked to in one of her posts) I was confronted with how bad it is. I knew that what the audience really wanted was to be given a list of terms with meanings so they could just tottle off and buy licenses and I knew I wouldn't be able to do that but it wasn't till I sat down to write the thing that I realized there is literally only ONE thing that is standard across foundry licensing models:
A desktop license is always a contract which, as a base line, permits the installation of fonts for the use by people to create documents. That's literally it. Everything else is, at minum, nuanced.
As a side note, Adam, I'd be very curious to know what you think of our EULA. Wait a few days to read it though because we're about to make a minor update.
For us, a single subscription model or large font library isn't a "fix-all". Fonts are introduced to the workflow for countless reasons.
It would be wonderful to see some standardization.
Maybe apps could display an "accept/cancel" dialog with the full text of the EULA when a font is selected from the menu. (I'm kidding, I hope.)
I'm mostly a reader of this place. I am a frequent user of fonts. As a user since about 1989 when I started writing and laying out user manuals and the like, I gotta say that EULAs are one of the baffling things to even attempt to adhere to in a production shop. That's regardless of whether I was the sole person or through the 1990s when I employed 7 others at its height. The number of people involved didn't matter. It was hard in a production environment to stay on top of things—and it has only gotten worse since with the shear variety of EULAs.
I am also fairly certain I have violated such things over the years. Why? Because at some point I lost track of organizing fonts into folders that had EULAs in them. Even fonts from the same foundry varied over the years and it simply became a pita to keep up. And as we also did final work on other's files as a prepress department, I also am fairly certain we violated some EULAs by just using client fonts to finish their stuff.
I don't know where i am really going with this ramble. But I think at minimum there just has to be a better means of keeping track of what variables apply to which fonts and encouraging users to adhere to the EULAs by making it easier.
Mike