Font EULAs - “Large Volume Commercial Uses”
Comments
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I think this is the logical line to draw, back from web font licensing. And also the wrong one. 95% of customers will never run into this issue.
Your cited license to me sounds like metrics squeezing, the reason most people hate web advertising. It’s going to be a headache to enforce, and it’s a rather uncommon monetisation method for tools.
For what it’s worth, I really prefer the simple model: one license covers a broad range of use environments, and you can scale those endlessly. If you’re adding new clients or websites (as an agency) or new e-books (as a publisher), then you add a license or make the client buy one. That’s how my license works. I think Swiss Typefaces have something even simpler than that.1 -
It’s going to be a headache to enforce…
I expect that some of the designers doing this have no intention of enforcing the EULA beyond sending a single C&D letter. Because few type designers can afford a legal battle with a big company. But it might only take a few big license deals a year to make up for any sales lost because the license annoys some people.
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A provision like that is required to prevent unfair deals. Unfair in the sense of underpaying the font designer. (Of course, it does not prevent unfair deals with dishonest licensees.)
Example: UPS buys a $100 desktop license, and uses it to create a new logo. This is an unfair deal, because the added value for UPS of what is produced with the font, is very much higher than the price of the desktop license.
In general, when the number of commercial items which are created with a font, are big, the added value for the licensee of the font, is higher than with a small number of created items. Using the expected number of users of a desktop font as a criterion for the price of a license, fails to produce a fair price, when one or a few desktop users create very many commercial items with the font. In such a situation, an additional license is required to reach a fair price for the use of the font. (With other large volume commercial uses, there is usually also a big difference between the desktop license price, and the added value of the large volume commercial use of the font.)
Companies usually know in advance, how big the print runs, production runs, etc., will be, for which they intend to use the font. They also usually know in advance, if the use of a font will create a big added value for them. Larger companies may typically license the font for more users and more money—but this is not relevant. The additional license is meant, not to cover a font as a tool which is available to be used by a specific number of users, but to cover the added value of what is produced with the font. (Produced by an irrelevant number of users.) Both small and big companies can be involved in large volume commercial uses, so the size of the licensee is irrelevant.
When a bitmap image with a font goes viral on the internet, no one is paying for that—so I would say that the provision does not prohibit this. There might be some added value for the licensee when such a thing would happen, but it is not practical to include such situations in the provision.
With a provision like that—if a licensee bought a perpetual desktop license of a font a few years ago, and he now wants to use that font for a big commercial campaign, he then has to buy an additional license to get the right to do so.
I don’t think it’s the font seller’s job to track everything a font licensee does with the font. It should be the responsibility of the licensee. A licensee usually knows in advance, if he is going to use the font for a large volume commercial use. A honest licensee will say so, and be willing to buy an additional license—because he knows it is fair to do so. (A licensee usually knows the added value of a large volume use of the font.)
It is easier to ask for an unfair (too low) price, than to ask for a fair price. Sure. Some extra attention is needed for a fair price. There is some extra work involved for both seller and buyer—like there is with many other licenses that are not like a standard desktop license. Companies which are required to buy an additional license, usually have enough staff to look into the license stuff. And they are usually very reasonable people. In my experience, they don’t get annoyed when asked for a reasonable price.
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Fonts are tools designers use to create. I think in the business of making art supplies, not art. We don't price pencils, rulers, X-Acto blades and art-board based on the number impressions the finished design will receive. The designer is free to use their art supplies without having to worry about the number of people who happen to glance at the finished work. What a pain in the ass that would be.
Type designers aren't telling stories with their typefaces. They're not changing minds, not moving hearts. Typefaces (other people's) can be beautiful and created with artistry and have a distinct voice. But there's no message. The designer pays me for a font, uses it to create something and it's theirs. I'm out of the picture.
I think it's fair to charge more if those tools are used by more people. It's fair to charge a bit more more for embedding fonts in a system that automatically creates words (web/app).
If my font makes a designer's job easier, then it was worth the money. Was the designer making a movie poster? A lost dog poster? None of my business.
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Publishers usually pay book authors for the number of books they sell. It may be a pain in the ass, but it’s fair.
Fonts are tools. Sure. Do font designers care about the way their fonts are being used? Most do for sure. Why? Because most of their desktop licenses are full of restrictions—and rightly so.
As an example, to quote Fontspring’s Desktop EULA FAQ: “Can I build the font into a computer game, mobile app, eBook, phone, printer, TV or camera? No. Can I use the font in my web service that allow my customers to compose items such as business cards, marketing materials, collateral items and photobooks? No.”
Why are such uses restricted in a desktop license? To prevent unfair deals, because such uses generate too much added value in comparison to the price of the desktop license. If someone wants to use the font in any of those ways, he has to buy an additional license—so the paid price will be more in line with the added value of the use. To restrict large volume commercial uses, is just another example of such a restriction to prevent unfair deals.
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@Joe Manbeck I agree 100%. I totally get the impulse to "prevent unfair deals" but that must go both ways. We do quite well and we do so with very simple terms that can be interpreted as quite open. I see complexity as the enemy of success.
In complexity lies confusion and the feeling on the part of the customer that they were trapped.
There are other ways to make sure that the one really big violation is enforceable and to do so in such a way that you can enforce the medium violations too. AND look good doing it.1 -
I'm curious why you're seeking the opinion of other type designers. License terms are business decisions and no matter what we think, the person who implemented them thought those terms were a good idea. Let them learn on their own whether that's true or not. Persuade if you like, but let them make their own decisions in the end and reap the reward or fail. Support comes in many forms, and preventing what you see as a mistake may not be as helpful as you imagine in the long run.
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If Fontspring is considering to block specific foundry desktop licenses—then they seem to be willing, again, to risk their foundry-friendly reputation. Fontspring already risked this reputation, by inviting their foundry partners to completely get stripped—by a few mouse clicks—of their rights concerning future changes in the agreement between Fontspring and the foundry (while suggesting this is what many foundry partners begged for). If I were Fontspring, I would stop and think very hard about all this.
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@Nicole Dotin I can't speak for the person who started this thread but I have also been very vocal about these issues and will be speaking on this topic - as well as giving two workshops - this coming conference season.
I do it because I want people to read my EULA and they simply will not do so if every other EULA they encounter confuses and angers them. I want every foundry to have their own terms of their EULA because I agree with you that is what makes each of us special and I want everyone to do it in a way that is clear and comprehensible to the font buying public. And, fundamentally, I believe that the actual structure of these terms (easy to measure, not complex to grok) is crucial to it being clear.
This question was framed in a way that reminds me of the way I speak when I'm open to being persuaded that my way of thinking is wrong. But also it is in the interest of a reseller to make sure that they understand and believe in what they are selling (which in this case is colloquially these terms we're discussing). I admire @Joe Manbeck for looking more deeply into these questions.3 -
@Ben Blom - Based on feedback from you and others a few weeks ago, we're working to update our Agreement and reintroduce “with notice” wording back into the Agreement, along with some other clarifications on why certain clauses are included.
We will not be blocking or removing foundries based on specific wording or phrasing in their Desktop Licenses. We want to make sure we're providing the best licensing experience we can for our customers, and this has been a hiccup in that experience recently. We’re trying to figure out how to clearly and accurately share licensing details like this with our customers, and before doing that wanted to get more info on how “mainstream” the ideas behind the clause are.1 -
I can respond specifically to @Nicole Dotin. We bring this up with type designers because when we have asked designers one on one, 1) many didn't realize it was in their EULA (probably copy and pasting), and 2) didn't know how to interpret it themselves and admit it is ambiguous to them. It makes us look unprofessional when we can't provide an answer to our customers. so we are just trying to understand. So far these comments have been really helpful.
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EULAs are complicated enough, and this extra wrinkle doesn’t feel right to me. I would imagine that it would lose business, by customers not wanting to pay the extra, and besides, massive reproduction is a form of free publicity, an agent of virality. Yes, I know, “exposure” is a dirty word in the design world, but with relation to fee-based work primarily—fonts are software products and Chris Anderson’s concept of “free” is critical.
As Nicole says, each to their own and let the market sort out the ecology of licensing. If Ethan and Joe support other foundries offering this increased granularity at FontSpring, and prospective buyers balk, they may proceed to “View similar fonts” from Shinntype.
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Just so we’re all clear:1) Fontspring is not taking a stance on the “rightness” of either position (viewing your fonts as tools only OR wanting compensation for your fonts based on the value added to the consumer). Neither is unethical or wrong, just different.2) We’re not convinced that either is a better marketing/business strategy. Both could work well depending on the genre of your fonts, your target audience, and your overall brand.3) We’re only asking the questions to make sure we have a good handle on how font licensing is evolving, and to make sure we’re not behind the times.
Everything has been extremely helpful so far.3 -
Don't get me wrong. I'm not advocating that a foundry's license can't be questioned or that type designers shouldn't consider/rethink terms. It's great to parse these things out and I always appreciate reading other people's perspective on the topic as there are many angles to it.
But, I got the sense Joe was searching for validation rather than understanding, and what would he do, as a reseller, with the information in the resulting feedback? Advice is fantastic, but first-hand experience is, arguably, doubly fantastic and can lead to growth. I wouldn't want to see that quelled by popular opinion or the pressure of authority. Thanks for the clarification on your motivates, Joe and Dan.
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I do not see the two positions here to be either viewing fonts as tools, or “wanting compensation...”.
“Wanting compensation...” may sound like something is wrong with that. When one sells a mobile app license or a hardware device license (or even a plain desktop font license), would one then want to call that “wanting compensation...” (even when it is true)?
Fonts are tools. Font licenses are rights to use such a tool. I would say that such rights are the main subject of this discussion, and that the two positions are (1) less or (2) more restrictive desktop font licenses.
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Quick note: A licensee – as the individual who licenses the font for the business – does not always know the distribution, nor print run of an evolving product (new editions, reprints, series, export to client, marketing use, distributions, amends-to-spec etc). It's difficult to find out all the relevant details of a product at-that-moment-in-time.
In publishing, we create products internally, but also receive buy-ins and co-publish. If the publisher does not typeset the original PDF, but distributes it online, should they acquire the relevant e-book license? The answer varies between foundries.
The difference is that those individuals responsible for licensing are quite separate from those responsible for commissioning, distributing or even creating products. It is not dissimilar from the challenges of licensing artwork.
This happens, it's frustrating. The business takes the decision.JoyceKetterer said:In complexity lies confusion and the feeling on the part of the customer that they were trapped.
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A licensee – as the individual who licenses the font for the business – does not always know the distribution, nor print run of an evolving product (new editions, reprints, series, export to client, marketing use, distributions, amends-to-spec etc). It’s difficult to find out all the relevant details of a product at-that-moment-in-time.
I would say that the licensee is not an individual—but the company or organization that gets the right to use the font.
If you try to implement a large volume commercial uses provision, based on details—you introduce unnecessary complexity, and you may get nowhere. View the situation as a (higher) manager would do—not as an accountant. You only need a general ballpark estimate—for instance, by answering these two questions: [1] Does licensee intend to do a large scale campaign? (Yes or no.) [2] Is licensee big? (Yes or no.) There are three relevant outcomes of these two questions: 1 = no (no additional license); 1 = yes and 2 = no (additional license); 1 = yes and 2 = yes (additional license with higher fee). This is just an example—without any details—of how one could implement such a provision.
An additional way to limit complexity, is to offer the additional license as a perpetual and unlimited license. Then, if the licensee will do other large scale campaigns in the future, this will be covered by the additional license the licensee already has.
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The rights and permissions belong to the organization or company that rely on individuals to interpret the EULA correctly.
One clause does not function in isolation to an already complex EULA. EULAs increasingly refer licensees to email addresses for additional licensing. Costs are hidden from view, rather than displayed upfront. I meet a lot of hesitation from our teams on the offer to contact foundries and ask questions. Nobody wants to be met with a cost that has not been budgeted, it becomes a risk to the project. But, a premeditated cost can be approved in advance.
Reading the font EULA is typically not the first item on a project agenda or business proposal. Assumptions are made – potentially by higher management – who do not realize that their current font license is not a coverall for this specific use.
Perpetual and unlimited licenses may not be viable for projects with a specific budget allocation. Licensing costs to the overall business follow an entirely different process.
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@Katy Mawhood This is really interesting. I'm against putting cost in the EULA - even explaining how the pricing structure works (be it tiers or a percentage of base or whatever) because I think the EULA is already complicated enough. I just want people to know what's covered and then they have to go elsewhere to figure out usage scale and pricing for the extras. I've always seen the counter argument but, believing there's a no way to cram everything into this one document and keep it functional, chosen simplicity.
But you've added a wrinkle when you say that within your team people know they need to ask questions and are afraid to. How would you thread that needle? A link to a pricing table somewhere else on the site?
But that gets more complicated. We don't post our prices for addenda not because we have something to hide but because we are still working on them and want to be able to stay flexible while we figure out how to do this new thing. At to that, no one posts their highest prices for anything because we all accept that there will be negotiation in these cases so the numbers aren't really real anyway.
I know friction is bad and I intend to make it easier for customers to buy addenda online with an upcoming update to our website in the next 6-8 months. But we do want people to talk to us because we can help them to follow the EULA when they do. Maybe that's just naive if everyone is simply scared we're going to be mean. But that said I don't understand this thinking because if it was me I'd want to know if there were additional costs so I could decide to use another font rather than not know and potentially violate the EULA. I get the irrational human response you're describing and I wonder if there's a way to counter it?0 -
@Katy Mawhood Of course, the writer of the text of a font license, has the responsibility to make that text as clear as possible. But the readers of such a text, also have a responsibility.
Why suggest that licensees have the right to be naive, and the right not to do their homework? Purchasing and budgeting are usually important and serious functions of a company—not to be done by a naive and lazy school boy. If one is not willing to get the information needed to budget a (big) project, of course that will result in a risk for that project. The costs of custom licenses are usually not displayed upfront, like the costs of any custom purchase. Such costs will be known in advance, if asked for in advance. Good managers do their homework (or ask their staff to do some of the homework), and do not assume too much.
The viability or affordability of a font license depends on the price of that license, and on the expected added value of the use of that license. If the added value of the use of a license is much higher than its cost—then that cost is affordable for sure.
I once sold a Large Volume Commercial Use license, and received this compliment at the end of the process:
Thanx, Ben!
Your licenses really are some of the best I’ve read. They are clear and easy to understand. Your description of how this license is value added for the licensee not the third party is excellent!! I always have a hard time explaining this to our users and clients, but I draw on your description in a general sense, and they seem to get it.
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@Ben Blom do licensees have a right to be niave and sloppy? Not legally. Not morally either. But when we are living in a culture that trains people to be that way and we are one tiny industry within a MUCH bigger market of software that atypically has circumstances where reading the EULA actually matter is it useful to get mad at them?
I say no. I think that the useful thing is to figure out how to work within the system in which we find ourselves. And find a way to craft our licensing terms so that we can get paid a fair fee in a manner that permits dignity and a minimum of conflict for everyone.
It sounds like you've taken the first step by crafting an accessible EULA. I just downloaded it and look forward to reading it.
We do a lot of license enforcement and sometimes it's super hard not to get mad because the people I'm dealing with are just being so dumb from my perspective. but I remind myself that I don't read the itunes EULA and take a deep breath. How could they possibly know that a font EULA is way different?
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Joyce, I’m not mad at all. I just tried to respond to Katy as clearly as possible. (Katy, I didn’t intend to be disrespectful to you or anyone else.) I know the world is not as ideal as we want it to be. But I feel the people on the receiving end of font licenses, need to show a little more effort than what Katy describes.
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@Ben Blom Congratulations on the praise you received for your EULA. As a token of effort, I've stayed 1.5 hours after work to script this message. I hope you interpret that licensees do try to understand, to immerse ourselves in the industry, and to educate others.
I take no disrespect, but I do not understand your interpretation of my comment? Of course, no licensee has the right to be naive. Hesitation is a very normal response, lead by anxiety and caution. Potential issues and risks intrude on the question; as a consequence no action is taken.
By defining licensees as naive, lazy school children – the problem is outsourced. It triggers a dysfunctional business relationship, and risks accidental piracy. How do you curb that trajectory?
When everything is standardised, you're forced into non-compliance by process and procedure. Fonts become managed by EULA, not by the value of that font. Fonts can evade a "locked-down" system by multiple entry points: content may have been typeset by a third-party or ten years ago. The distributions of a product created today are not predetermined. We do not re-typeset content for digital distribution, we recycle the print PDF as a cost-saving metric. Licensing is involved later on, with substitutions and re-labelling. These are poor solutions that devalue font purpose and fine typography – although they value licensing.
To backtrack:
I do not believe that it is possible to be 100% confident of compliance in any font intensive organisation. A big remit of my job is to assure our compliance.Joe Manbeck said:If it was easy and straightforward to track the growth of a company, or the reach of product distribution channels, then we probably wouldn’t have a problem with this clause. But it’s definitely not. Keeping track of something like this would be essentially impossible, and we can see how even a small company could find themselves violating the license pretty quickly without even realizing it.
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Katy, I am a little confused. On the on hand, you write that people at the receiving end of font licensing—do try to understand font licenses, and do put effort into that. On the other hand, you give many reasons why, at that receiving end—font licenses are not dealt with in the way they are supposed to be dealt with. But perhaps these two things are not conflicting at all.
My general point is—there is nothing wrong with a kind of clause as Joe describes. I am not saying that that specific clause is ideal—it just represents a category of clauses that are, I think, OK in a font license. Also, I think that it is practically feasible to implement and abide by such a clause—if the involved parties take the clause seriously, are willing to put some effort into it, and if the clause is not implemented and viewed as something for which many details are needed.
I did not suggest that anyone at the receiving end of font licenses—is a naive, lazy school kid. I only suggested that competent and serious people are needed there. Although it may be a fact of life that many people at the receiving end of font licenses behave in such a way that font licenses are not dealt with in the way they are supposed to be dealt with—this cannot be a reason to disqualify font licensing in general, or a specific clause in a font license.
Both you and Joe seem to give reasons, why font licensing in general, or a specific clause in a font license, is problematic. I think it is useful to further look into such reasons—to assess how substantial they are, and to better understand why font licenses may not be dealt with in the way they are supposed to be dealt with. However, if a licensee (an organization that uses fonts), really wants to take font licensing seriously—it can.
“When everything is standardised, you’re forced into non-compliance by process and procedure.” This quote suggest that some force out of the control of the licensee (an organization that uses fonts), forces the licensee into non-compliance. I don’t believe this is true. Where there is a will, there is a way. (As with everything in life—perfection, or 100% compliance, may not be feasible. But seriously trying—is.)
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Ben Blom said:
The EULA can change at any moment, that is outside the control of the licensee. It is the licensee's responsibility to be up-to-date with any change, without notification.“When everything is standardised, you’re forced into non-compliance by process and procedure.” This quote suggest that some force out of the control of the licensee (an organization that uses fonts), forces the licensee into non-compliance. I don’t believe this is true.
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The EULA can change at any moment, that is outside the control of the licensee. It is the licensee’s responsibility to be up-to-date with any change, without notification.
As far as I know, font EULAs do not change auto-magically. The rights and restrictions of a perpetual desktop license are, in ten years from now, exactly the same as they are today. A license with a limited duration, will expire at some time—but it will not change during that duration.
Of course, a licensee’s control should be exercised first and foremost during the purchasing process of a license. For a big project, enquiring about the exact licensing needs and conditions, should be part of the search process for a new font. If a prospective buyer doesn’t like the licensing terms of a font they are considering, they should move on and look for another font. For a big project, it is a fallacy to select a font only on its design and functionality, and then look at the licensing terms as an afterthought.
If the expected duration of a specific use of a font is, for instance, eight years—then it may not be smart to purchase a license for that use which expires after a year. In this way, one introduces uncertainty, makes oneself vulnerable, and creates extra work to manage the license. Perhaps, when the license has expired after a year, the license might not be available anymore with the same terms.
Perhaps I missed something. Perhaps font EULAs exist that change outside the control of the licensee. If so, I would like to hear more about them.
PS. Perhaps font EULAs with a clause like this, exist: “We reserve the right to update and change this EULA from time to time without notice. Continued use of the Font after any such changes shall constitute your consent to such changes”. If so, as a prospective EULA buyer, I would immediately remove the font involved from my font shortlist.
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@Ben Blom and @Katy Mawhood As of the last time I did a massive read of EULAs there were some with clauses stating that they can be changed at the discretion of the licensor. However, when we looked into the feasibility we concluded that the inability to push a new EULA consent window as a result of the way in which fonts function most likely renders these clauses unenforceable. As a side note is a lot of case law about EULA consent. When we did this research we not only made this conclusion but also made a bunch of changes to our website to make double sure we were bullet proof.
@Katy Mawhood I would be very curious to know if your attorney looking at this from the user side agrees with ours and tells you to simply ignore this clause in EULAs and act only on the terms of the one to which you agreed.
Also, as a side note, since we believe that we can not issue an entire new EULA at any time for an existing license without the express knowledge of the licensee we did add the following clause to ours:
"In consideration of the fact that Darden Studio does not limit this License to a specific term of years and that it is not possible to foresee technological innovations that may materially impact usage of the Font Software (such as, for example, the invention of 3D printing), Darden Studio reserves the right to unilaterally amend the terms of the License in the event that any provisions herein are rendered obsolete or incomplete by new or changed technology, effective as of the date of publication of notice of the amendment on Darden Studio's website."
Since this has not been tested we do not know for certain that it would hold up in court but our attorney believed that it's rational basis and limited scope makes it likely to be found in our favor should we ever have to defend it.
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According to the grapevine, licensees have been met with legal action as a result of license changes to the tune of over $1million. All NDA. Different foundries have different practices and approaches. Some are more litigious than others.
@JoyceKettererBy legal consultation we keep a record of the PO and EULA at time of license, in the hope this would provide a case for "fair use". The alternative isn't pragmatic. If we're embarking on a large project for a fresh use, I read the latest EULA(s) wherever possible.
As an intellectual property owner, your rights – which include the right to amend the terms of the license - may well hold up in court. IANAL. As a licensee, that clause is very disorientating. It could be why some companies get a bit spooked. In our division we do not license new fonts unless there is a strong business case. Other divisions are more locked down than us, and do not even use open-source fonts because the EULA is subject to change.
Certainly, this type of clause is not uncommon.
I'd like to re-emphasise that we do not always have control over the fonts that enter our workflows. A third-party may typeset / create content, we may need to make a change for a new edition that uses fonts we are no longer licensed for. Are we indemnified in terms of font-use from third parties or past licenses? Our larger contracts supersede past versions. System and software fonts seem to be subject to their OS / software version, and are also superseded. Third party licenses typically do not cover a new distribution – and a license is definitely required for any corrections.
The channels to substitute are often more cumbersome, but allocated budgets cannot withstand the additional font licensing costs of some vendors.
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TL;DR (everything) but want to comment as a user not creator.
As a user I have generally licensed type before I needed it. I'm a little sick that way. As such I have a rather large library with far too many EULAs to keep memorized. When I go to design I do not first consider the EULA. Usually this is ok because none of my clients are huge. But recently, I ran across a problem where I was designing for a radio station in a large metro. However, the station is only streaming online (no DJs, all programmed) (no app, just browser) so really a rather small station. One of the designs chosen—as we were narrowing things down—used a font with just such a clause as you mentioned with the large volume (because online impressions). So then I started considering my options. I found another typeface but that license specifically required additional licensing for web use for a logo. A logo?
An aside, I absolutely understand additional licensing for embedding in apps, books, web, etc. But for a logo I start to question my sanity.
Anyway so I went back to the first foundry—with whom I have a good relationship—explained the situation, and they told me we were cool. I stopped sweating bullets.
I license my type because it is the right thing to do. But I will generally backtrack and change fonts if I realize that the foundry is trying to—excuse me—nickel and dime me to death.
I have slowly been weeding my library over time to remove such fonts that I would probably keep using if it weren't for the EULA. And I don't generally suggest fonts—when people ask me to do so—from those foundries.4 -
Please could you unpack this?Katy Mawhood said:do not even use open-source fonts because the EULA is subject to change.0
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