Is porting fonts to iOS Legal or Illegal?

Mike Anderson

It's something that people have been doing for years, I think since the iPhone came out in 2007, and the guys over at BytaFont (http://forum.bytafont.com/ ) are most active in doing this today, but I was wondering if its considered legal or illegal? They change the system fonts of iOS which are either Helvetica or the new San Francisco and then distribute the modified fonts on Cydia/the Internet. They claim they would not port fonts that are not freeware or redistributable yet neither is Helvetica nor San Francisco (the fonts they are porting TO) and those are the fonts that are in fact being modified and then redistributed. Yet no one has complained about this ever since it begun. So it seems like it IS legal but to me it somehow doesn't...

Can anyone here help me clear this up?
Thanks

Thomas Phinney

Hey Mike,

So, people making replacement system fonts for iOS (or MacOS, where it does not require  are not, in general, doing so by modifying Helvetica or San Francisco. They are instead modifying the initial replacement font, and usually giving it some vertical metrics and name fields that are identical to those of the "target" system font.

Font vertical metrics are pretty generic; I don't know of any lawyer or professional in the industry who has made any claim that vertical metrics are protected by copyright or any form of design rights.

Such system font replacements also involve changing certain name fields in the replacement fonts to match those in the target font. If the target font’s name is trademarked, perhaps somebody might argue that this would constitute trademark infringement.

I am not a lawyer, and I don’t even play one on TV. But I will note that the US definition of trademark infringement, according to the Patent & Trademark Office, is this:

“Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”

So, here is some pure speculation on my part:

One plausible explanation for why Apple has not given any warnings to anybody involved in this “replacement fonts” exercise is that it is an operation done by the end user who is already using the real thing, and they are willingly and utterly knowingly replacing system fonts with third-party fonts, because they don’t like the system fonts. There is no possibility that the end user is confused about the source of the fonts or the fact that they are different from Apple’s—that is not how they are promoted. Although some internal name fields may be the same, those names are not used to promote the fonts. Nobody says or implies that this is authorized by Apple, or that these are new versions of Helvetica or San Francisco. So perhaps the lawyers regard it as non-infringing.

Then again, maybe Apple just thinks it is a reasonable thing to let people do and doesn’t want to be a dick, as a corporation.

Mike Anderson

Hey Thomas, thanks for your input
I think that what you pointed out makes sense, however, commonly when porting fonts the source font has much fewer glyphs (ie. ~300-500) than the target font (ie. Helvetica) which has well over 2000 glyphs. Thus, the final ported font will also contain glyphs from Helvetica/San Francisco, a sort of hybrid font of the source font and the target font. So would this be considered "non-infringing" also? Cuz we're not talking about font metrics anymore but rather glyphs (ie. shape outlines) which are purely identical.
What are your thoughts on this?
Thanks again!

-Mike

Thomas Phinney

I have seen a bunch of fonts ported as system font replacements, and indeed my colleague Adam wrote a script to do it (https://github.com/twardoch/fonttools-utils/tree/master/mac-os-x-system-font-replacer).

None of the examples I have seen, nor Adam’s script as far as I am aware, borrow glyph outlines from the original system fonts.

I am not a lawyer, but I would certainly assume that such borrowing of entire glyph outlines would potentially infringe copyright (possibly depending on what one did with the resulting font). I certainly would not want to be involved in distributing such a font.

Cheers,

T

Mike Anderson

Thanks for your opinion Thomas. I know however for a fact that the guys at BytaFont who port fonts to iOS copy glyphs from Helvetica/San Francisco. Actually its the other way around: they would copy the custom fonts' glyphs and replace them on top of the target fonts' glyphs leaving the rest of the unreplaced glyphs intact. There's actually a lot of tutorials on how to do this for example here http://blog.clg.website/tutorial-porting-fonts-to-the-iphone/ or http://blog.gauravgiri.com/2008/08/tutorial-port-fonts-to-iphone/

Here is a sample of Ubuntu being ported to iOS 9 http://ipod-touch-max.ru/cydia/index.php?cat=package&id=42841

You can download the deb file from there, extract it, and if you open the fonts in a font editor you will see glyphs from 2 different fonts: the source and the target (ie. San Francisco).

Tons of these kinds of ported/hybridized fonts are served by modmyi.com and other repositories on Cydia. Been like this as I said since iPhones release ~7 years ago pretty much. Nobody has complained.

The reason I am curious about the legality of this process is I wanted to try porting some fonts too and serve them on Cydia as well just like BytaFont or iphoneruler.net does. Just want to be safe rather than sorry.

It would be great to hear from some "font-lawyers" here on their thoughts (ie. Matthew Butterick).

Cheers

-Mike

Adam Twardoch

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Adam Twardoch

Just like Thomas, I’m no lawyer, so I'm only describing my impressions. 

If you distribute without a permission from the copyright owner a font that includes digital glyph outlines taken from a copyrighted proprietary font, then the copyright owner may decide that it infringes on their copyright, and take legal action. 

If these “replacement fonts” that are being distributed include glyph outlines that are part of Apple’s San Francisco or Helvetica, and these fonts were created without Apple’s permission, then Apple might indeed feel that distributing these fonts may infringe on their rights. 

Apple might decide to take some action against people who distribute such fonts. Of course I'm not sure Apple would take any action. After all, these “font mods” seem to be used by die-hard fans to hack and tweak their Apple devices, which they did buy from Apple. It might be a PR disaster for Apple if they decided to go after such a small “hack fan” community. But, even if this infringement, which by necessity includes breaking the EULA terms, is tolerated by Apple, it still isn’t “legal”. 

A few years ago, Microsoft sued a software developer and student named Mike Rowe for trademark infringement because he published some freeware programs he's written under the domain mikerowesoft.com. The PR backlash Microsoft received was so immense that they quickly pulled back from the lawsuit, and even offered that student some stipend or free development software or something. 

Apple has obvious business interests to battle Samsung or the likes in courts, because it’s real competition. But if Apple ever decided to take any legal action against these makers of what could be described as “fan fiction”, I'd personally be surprised, because I can hardly envision what would be the benefit for Apple to do so. 

Apple owned patents over the TrueType hinting mechanism (which expired some years ago). Code that likely made use of the patented techniques had been part of the FreeType font engine, and the FreeType developers did not have a patent license. FreeType offered a way to build their engine with or without the patented code. 

It was up to the user which option to choose, and many chose the patented version even though they did not have a license. As far as I can tell, Apple never exercised their patent rights in this case. So the people used the unlicensed code at their own risk, but that usage was not “illegal”. If would have been if Apple sued someone and a court supported Apple. 

But there is a difference. Above, I spoke about a trademark example (Microsoft/Mike Rowe) and a patent example (Apple/FreeType). These are both elements of “industrial intellectual property” and as such, they require specific action of the party that holds the rights to “feel” that their rights have been infringed, and to defend these rights. If undefended, a party may lose protection of their trademark or patent. 

I.e. my understanding is that one party’s usage of a trademarked phrase or patented technique (or similar phrases or techniques) is presumed to be “legal” until a rights owner feels that their rights are infringed, sue in a civil court, convince the court, and win. 

With copyright, it’s different. In most countries, copyright offers automatic individual protection, and in some jurisdictions copyright infringement is a criminal offense. I’d say infringing on copyright is more generally “illegal”, especially if it involves direct, verbatim copying of portions of someone else’s copyrighted work, rather than mere similarity. 

Unless you have a specific permission from Apple that says otherwise, the only legal way to obtain Apple’s San Francisco or Helvetica fonts is to either download them from Apple or install one of Apple’s operating systems. These fonts are then licensed to you under a specific set of permissions and restrictions, called the End User’s License Agreement (EULA). 

I’m certain that Apple’s EULAs do not give you permission to reuse the digital glyph outlines in derivative fonts, and distribute such fonts — even for “fan fiction”-type of purposes such as the one you’ve described. 

Ultimately, it is of course a matter between you and Apple, but I’d say that knowingly distributing fonts derived from Apple’s fonts without a permission from Apple makes you liable, and the practice “illegal”. So, even if the chances of Apple “caring” ie. taking action in this case are slim, the practice still isn’t legal.

Also, using 3rd-party proprietary digital glyph outlines without permission in a derivative font and distributing the result is considered “bad professional practice”. Copyright protection of fonts differs from country to country, but the mainstream type design community has a general set of ethical principles, and “outline copying” is certainly a no-go in this community. 

The type design community considers unlicensed copying of outlines a harfmful practice. It generally devaluates typographic work, creates bad models for others to follow (who might assume that it’s generally unconditionally OK to do such a thing), contributes to unfair competition, and ultimately damages the profession.

There may be open-ended debates about how much similarity between two independently-drawn typeface designs is acceptable, but verbatim copying of digital outlines is beyond debate — virtually every professional type designer agrees that it’s both unethical and most likely illegal. 

As for the tool Thomas mentioned — I’ve written it so that the user would do the font patching. I indeed did not want to distribute any fonts or software that would contain code taken directly from any Apple fonts. If I did, I would run a risk that, in the unlikely case that Apple took action against me, some court might find my actions “illegal”. 

By providing a tool which does not by itself include any copied code, I offset any risk to users of the tool. The tool doesn’t even copy any glyphs or other copyrightable data from Apple’s fonts, nor it modifies the Apple fonts. It merely changes the internal names of some user-specified fonts on the user’s own machine. As long the user has the right to modify these fonts, I believe the use of that tool is actually fully legal.

Dave Crossland

Adam, I agree with you that your tool and use of it is probably legal by end users, assuming the font licenses they have permit such modification. It is surely the redistribution of modified fonts which makes things tricky.

I spoke about a trademark example (Microsoft/Mike Rowe) and a patent example (Apple/FreeType). These are both elements of “industrial intellectual property” and as such, they require specific action of the party that holds the rights to “feel” that their rights have been infringed, and to defend these rights. If undefended, a party may lose protection of their trademark or patent. 

This is true of trademarks but not patents.

Lumping different monopoly rights together is unwise, because the laws have so little in common except they are government granted monopolies over some activities. 

Mike Anderson

Wow, thanks Adam for that long and very detailed explanation. I agree with everything you said. My guess is that if BytaFont and other font-moders have been getting away with this type of font porting method since iPhone's release than it seems like it is "safe" (I dont want to say even "legal") for anyone else to do it, but of course at their own risk... I will consider if I infact do this however. Sadly though porting just your custom fonts' glyphs to iOS will mean that any missing glyphs will not be displayed! So the only way to get ALL possible glyphs to show is to include San Francisco's glyphs as well. There's unfortunately no way around it...

EDIT: Actually I just had a thought! You could use another font that is free/open-source instead of San Francisco/Helvetica for the missing glyphs... Something like FiraSans, Open Sans, Source Sans, etc. I guess that could be the best viable and "legal" option.
Thoughts?

Adam Twardoch

Mike, 

indeed, you’re right. If you take any font that is released under an opensource license (OFL or Apache 2), then you can combine glyphs with another permissively-licensed font. Note that any derivatives that include glyphs from OFL-licensed fonts must be released completely under OFL. 

This is in fact a perfect example of benefits of unified licensing: today, there are many fonts available under OFL, so any glyphs from those fonts can be easily combined: Fira, Open Sans, Source Sans, Noto, Liberation, Lato, XITS etc.

(If your base fonts are under Apache 2, such as the older Noto fonts, then you're even more flexible because the result does not have to be released under the same license.) 

Also, if there are a few glyphs missing, one of the font developers might be willing to add those to their base fonts (e.g. Fira). 

Best,
Adam

Mike Anderson

Thanks again for your feedback Adam.
I was thinking that Fira Sans would be a good replacement since it has a great abundance of glyphs supporting many languages. Since it is OFL-licensed what do you mean that the final ported font must be also released completely under OFL? Is it enough to just have the ported font say also "Licensed under the Open Font License, version 1.1 or later" in the Licence field of FontLab Studio? Or would I have to "re-licence" the ported font via OFL again? That would be a lot more complicated and time consuming to do for each ported font... I hope this isn't what you mean. Is it?
I was thinking in fact copying over all the copyright/licence info from FiraSans to the ported font make it like FiraSans was just modified to have glyphs from another font (the custom font being ported). Is this ok to do? If not than what's my best and quickest option?

Thanks again.

-Mike

Deleted Account

"So the only way to get ALL possible glyphs to show is to include San Francisco's glyphs as well. There's unfortunately no way around it..."

legalities aside:
  there are ways to get fall back glyphs from another font, right. 
  copy and pasting glyph data, is lossy about font data.

bonus:
  Apple iOS Fonts are now a series of size masters in addition to different weights and widths, so a single simple partial style swap is becoming less effective in replacing a UI font there, and could lead to amazing uglinesses. 

Not to dissuade you from whatever legal acts of font swapping you might like.

Kent Lew

So the only way to get ALL possible glyphs to show is to include San Francisco's glyphs as well.

. . . or draw them all yourself.

Deleted Account

That is possible, but I looked recently at one international glyph repertiore that has 19 sets of Latin figures mixed in along the way, among the various scripts, all expecting to blend. So, I really hope fallback fonts work with OS fonts as well web fonts now work.

The other reason for this hope is the ability to address size differences between the fonts, if they remain seperate, as opposed to this subset injection theory, where fonts with different vertical metrics and paramedic profiles could be herded into a single font file.