Font EULAs - “Large Volume Commercial Uses”

2

Comments

  • KP Mawhood
    KP Mawhood Posts: 296
    @Dave Crossland The approach is based on the guidance of a colleague who has decades of experience in font enforcement.

    I have met this myself in a few instances. Upon contact, the font IP owner stated specifically that the open-source EULA is now superseded by their commercial EULA; this applies to all versions of the font.
  • Tiffany Wardle
    Tiffany Wardle Posts: 245
    @Katy Mawhood

    What? The original designer of the Open Source font can enforce a commercial EULA should they choose to do so on an O-S EULA? (Totally admit to be baffled and confused.)

  • Khaled Hosny
    Khaled Hosny Posts: 289
    edited August 2016
    I don’t know any open source license that you can retroactively revoke from already published work.
  • KP Mawhood
    KP Mawhood Posts: 296
    Every time there's a trial, the lawyers on both sides will argue their sides. Not the right side, both sides. That's what they are trained to do.

    License management is baffling.
  • Chris Lozos
    Chris Lozos Posts: 1,458
    Sad that the lawyers are the only ones to profit.
  • Dave Crossland
    Dave Crossland Posts: 1,429
    edited August 2016
    The approach is based on the guidance of a colleague who has decades of experience in font enforcement. 
    I have a decade of experience with libre licenses, and I find this very surprising. I think your colleague has been lied to. 
    I have met this myself in a few instances. Upon contact, the font IP owner stated specifically that the open-source EULA is now superseded by their commercial EULA; this applies to all versions of the font.

    That rightsholder is telling you a bald-faced lie. 

    No license approved by the Free Software Foundation or the Open Source Initiative allows superseding of licenses in this way.

    The SIL Open Font License v1.1 is used for almost all libre fonts, and Section 8.6 says:

    Question: 8.6 Does the OFL have an explicit expiration term?

    Answer: No, the implicit intent of the OFL is that the permissions granted are perpetual and irrevocable.

    This came up because in Poland, licenses without explicit expirations default to a 7 year term. I argue that each distribution is done under the license, so if your 7 years is nearly out and you didn't download a copy of an OFL font again in that time, you should go ahead and receive a new copy under a new license ;) I also believe that the FAQs for licenses are also likely to be taken into account by courts when interpreting them. 

    Every time there's a trial, the lawyers on both sides will argue their sides. Not the right side, both sides. That's what they are trained to do. 

    I am very eager to hear such arguments! :)

    With the Brexit "sick of experts" culture and the rise of Trump I am pondering again the need for more effective communication of memes that matter to me. The OFL FAQ is already very long, I guess few people read it. 

    Katy and everyone: Please please please do contact me if you deal with libre licensed fonts; I'm more than happy to provide expert consulting at no charge to resolve concerns about any libre licenses :) 

  • KP Mawhood
    KP Mawhood Posts: 296
    @Dave Crossland By producing commercial products it is possible to break clause with several Open Source licenses, thus terminating the agreement. The instances I am referring to are not OFL. There are always more details.

    That rightsholder is telling you a bald-faced lie. 
    The habit of challenging the IP owners' interpretation of their license doesn't seem particularly productive or fair.

    I have a decade of experience with libre licenses, and I find this very surprising. I think your colleague has been lied to.
    Designing fonts since university, nearing retirement, specific experience in font enforcement, copious stories of legal risk, threat, fine and action in fonts across organizations. To me, this sounds like someone who has experience.

    Please please please do contact me if you deal with libre licensed fonts; I'm more than happy to provide expert consulting at no charge to resolve concerns about any libre licenses
    Thank you, I will and I will pass your details along. :)
  • JoyceKetterer
    JoyceKetterer Posts: 812
    @Joe Manbeck I'm doing a survey of EULAs for my practicum on the 25th.  Could you point me to some of the examples in your own stable you were thinking of?
  • Ben Blom
    Ben Blom Posts: 250
    Tiffany Wardle de Sousa: “I absolutely understand additional licensing for embedding in apps, books, web, etc. But for a logo I start to question my sanity.”

    Additional licensing for the use of a font in an app, eBook, website, etc., is fair—because it covers the added value which is generated by such use. By the same token, additional licensing for the use of a font in a logo, can be fair. This depends on the added value of such use. If the font would be used for a logo of a big company, additional licensing would be fair. If it would be used for a very small company, additional licensing would be unfair.

    The only substantial reason I see for additional licensing for using a font in an app, eBook, website, for large scale commercial use, for broadcast use, for use in a logo, etc.—is covering the added value which is generated for the licensee by such use. When such added value is relatively small, there is no need for additional licensing.

    Tiffany Wardle de Sousa: “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.”

    Fairness must go both ways. The font designer should not get underpaid, but also not get overpaid. If a foundry tries to get overpaid—that would be unfair.

  • JoyceKetterer
    JoyceKetterer Posts: 812
    edited August 2016
    @Ben Blom I think you're conflating additional licensing with additional cost.  Just because we require an addendum to grant permission for a use doesn't mean we have to charge additional currency for it (of course there's no way around it costing a little effort).

    We seek with our EULA to have intuitive rules.  In order to do so they must be consistent and extrapolatable.  The logical outcome of the argument you are making is a grab bag of "fair" rules that confuse.  In confusion lies greater risk unintentional violation and that isn't fair. 

    If we instead think of fairness as global to the EULA we wind up with something very different.

    There are probably several possible good lines one could draw but we chose embedding.  This is not exactly because it adds additional value (though it does but, as you point out, so can non-embedded uses) but because embedding adds security risk.  Once we did this we are necessarily issuing some embedding addenda for small low value use.  We either charge nothing or very little for these but we do issue the addenda for consistency of message.

    We do not, for instance, draw a distinction between commercial .pdf use and non-commercial because that's too hard to remember (and subjective).  Instead we charge a small percentage of the license that's being amended so that small clients pay very little.

    And no, we do not charge for Logo use.  This a bit of a luxury because of the nature of our fonts.  We can use it as a loss leader.  If a company uses our fonts for a Logo they likely want to use if for other things and that's where we make our money. I know that not everyone can do that.  But the real reason for doing it this way is again consistency of messaging - the logo isn't an embedded use because it is a rasterized image.

    The only exception is products use for all the reasons you gave.  I'm not happy about the wrinkle it adds but I think it's retroactively intuitive.  And we do say that it must be an "integral part" which exempts minor uses in products (and we also exempt books, mags and packaging).  


  • Ben Blom
    Ben Blom Posts: 250
    JoyceKetterer: “I think you’re conflating additional licensing with additional cost. Just because we require an addendum to grant permission for a use doesn’t mean we have to charge additional currency for it”

    When someone buys two books instead of one, the total price will usually be higher than for just one book. For three books, the total price will usually be even higher. The logic of this, is easy to understand: The more value a licensee gets by using a font, the higher the expected fee for this use will be. This is a general fairness principle which explains why foundries restrict specific uses in their desktop licenses, and ask for additional licensing for those uses. In this context, it doesn’t make sense to give the additional licensing away for free—because the principle is about getting some kind of balance between the value of the use, and the fee for this use.

    I’m not sure whether “added security risk” is a better criterion for explaining additional licensing to customers, than “added value of use”. If eBooks are easier to copy than traditional books, does that—from the perspective of a honest user—warrant a higher price for eBooks?

    JoyceKetterer: “Instead we charge a small percentage of the license that’s being amended so that small clients pay very little.” “...which exempts minor uses in products”.

    Here you seem to use a “scale of use” criterion (which is an implicit “added value of use” criterion): small clients pay very little, and minor uses in products are exempted. This makes perfect sense to me.

    Choosing embedding as a criterion for additional licensing, is a practical way to draw the line. Then the additional licensing will leave some added-value-uses uncovered, and may cover some uses with little or no added value. (This criterion becomes less useful, when exceptions are made to it.)

    Additional licensing does not make sense, when it is free (why not “unrestrict” the use involved in the desktop license?), or when it is impractical to implement it. I am not suggesting that foundries should try to remove everything which is unfair from their licenses. It is up to a foundry, to decide what to restrict in a desktop license, and how to implement any additional licensing. My main point is—that it is certainly not insane to ask for additional licensing for the use of a font in a large scale commercial campaign, for the use in a logo of a big company, or for the use in a broadcast.

  • JoyceKetterer
    JoyceKetterer Posts: 812
    edited August 2016
    @Ben Blom The reason to have additional licensing even if it is free is so that the message can be clear.  It's not like the decision to make it free happens on the website.  I'm saying that I can choose to give it away after I learn more about their use.  This isn't something we do often - usually we charge a token amount - but the point is that we can.

    Can we concede that very few people violate a EULA on purpose and that those who do are not our audience here?  In that case, then the entire problem with EULA terms is that they confuse the customer/licensee.  

    You're stuck in a type of thinking which makes more confusion.  Thinking on the micro level about each type of add on as "fair" or "not fair" creates a collection of rules which do not logically interact with each other.  I am advocating for thinking on a macro level and accepting that some of the micro stuff may be "less fair".  The Macro view creates a system which will just make sense to someone once they understand it - without memorization of each rule.  And, on balance, this is more fair.

    And yes, exceptions do undermine the clarity of the message.  But I can't find a way to avoid it with products and my hope is that it is more intuitive than other kinds of call outs like "large volume" which are subjective and confusing.  
  • Ben Blom
    Ben Blom Posts: 250

    @JoyceKetterer  I don’t understand why you are suggesting that I am stuck in a type of thinking which makes more confusion. I did not suggest that all licenses should be completely fair. Practicality and perfect fairness, are not compatible. I gave a general explanation for restrictions in a desktop license—both for less usual ones, and usual ones. I also suggested, that restrictions for which this explanation is not valid, are not a good idea. For less usual restrictions, this explanation can be used to create clearness and reduce confusion—both for a foundry when deciding whether or not to have such a restriction in their desktop license, and for explaining such a restriction to prospective customers. (There may be some confusion in this discussion, when general restrictions are discussed together with custom discounts/exemptions.)

  • JoyceKetterer
    JoyceKetterer Posts: 812
    @Ben Blom I say this because you are thinking about each thing separately instead of thinking in terms of making a system which is easy to grok.
  • Ben Blom
    Ben Blom Posts: 250
    edited August 2016

    @JoyceKetterer  Please do not make up stories about my way of thinking.

  • Tiffany Wardle
    Tiffany Wardle Posts: 245
    Why would a person buy the same book more than once?

  • KP Mawhood
    KP Mawhood Posts: 296
    edited August 2016
    @JoyceKetterer Kudos on the grok. Here's some results from MyFonts, "Large Volume Commercial":
    JoyceKetterer said:
    @Joe Manbeck I'm doing a survey of EULAs for my practicum on the 25th.  Could you point me to some of the examples in your own stable you were thinking of?
  • JoyceKetterer
    JoyceKetterer Posts: 812
    edited August 2016
    @Ben Blom perhaps the word "thinking" is undermining my point.  What I am trying to do is describe the strategy for conceptualizing the EULA that I believe you're advocating.  It's a pretty common one but one I disagree with.  I see this as piecemeal rather than taking the entire thing as a single system.  If I have misunderstood please explain.
  • Ray Larabie
    Ray Larabie Posts: 1,431
    @Tiffany Wardle de Sousa

    From my experience: a combination of shallow pockets and a toilet bowl.
  • Ben Blom
    Ben Blom Posts: 250
    Why would a person buy the same book more than once?

    Nobody wrote here that a person buys the same book twice. It seems some people here do not read very carefully...

    ... and then make silly jokes based on this lack of attentive reading. So mature.

    ... or make up stories about the messenger, instead of discussing the message. Kudos on shooting the messenger.

  • Ben Blom
    Ben Blom Posts: 250

    @JoyceKetterer  I’m happy to explain everything I wrote—but I won’t explain what I didn’t write. (The Germans have a nice word for reading too much into something: hineininterpretieren.)

    @Katy Mawhood  I really do appreciate your willingness to discuss things from your perspective. You make a valid point that a consolidation of EULAs will increase the efficiency of using fonts for the larger font users. If this consolidation is supposed to also include a standardization of EULAs, then I doubt whether this is possible in a font industry where every font supplier has the right to use its own licensing terms. If “a EULA is only a single system” means, that all or most font EULAs should be standardized—then that’s just a pipe dream.

    Paperwork is part of purchasing fonts, like it is for purchasing many other things. The costs of such paperwork, are a part of the costs of using fonts. Such costs should be included in the budget for a project that includes the purchase or use of fonts. Any decision about using fonts, should be based on the total costs of doing that, and not on only the price of a font license. Choosing only fonts with a very clear license with few restrictions, would be a way to reduce the total costs of using fonts.

    Essentially, in this discussion—I just tried to explain less usual desktop license restrictions, what no one else seems to be willing to do, and what took me a lot of time. After some recent contributions to this discussion, I’m not in the mood now to spend more time on it.

  • KP Mawhood
    KP Mawhood Posts: 296
    Likewise, I've really enjoyed this discussion and very much appreciate everyone's time.

    Our procurement team won't touch font licensing unless it's a big shiny contract with legal involved. It really is treated quite differently. 
    Essentially, in this discussion—I just tried to explain less usual desktop license restrictions…
    This remains the most interesting desktop font EULA restriction that I've read. I like how embedding and webfont use is sandwiched in the mix. 
    i. pornographic, derogatory, defamatory or racist material (in any form, printed or virtual); 
    ii. activities in support of or depictions of child abuse, child pornography or in activities that use, foster or promote child labour; 
    iii. use by individuals or companies involved in any abuse and/or destruction of natural resources and/or habitat, logging (even legal), palm oil exploitation/harvesting, tuna fishing, whaling, animal or human trafficking, oil and/or gas drilling or the transporting and mining of such products or persons; 
    iv. use by individuals or companies promoting an unhealthy lifestyle , including, but not limited, to fast food, energy drinks, foods containing GM ingredients); 
    v. use by companies or persons involved in Genetic Modification / Genetic Alteration of organisms; 
    vi. use by individuals or companies involved in fur trade, or making use of fur; 
    vii. use by missionaries, individuals or institutions of any creed or faith for the purpose of converting others to their creed or faith; 
    viii. use in navigation devices, embedding and Webfont use; and 
    ix. use to instigate or support of terror, hate, intolerance, fear or racism.
  • JoyceKetterer
    JoyceKetterer Posts: 812
    @Katy Mawhood I've read that too - can't remember where.  I was so curious about it that I asked our attorney if it was enforceable and she "probably".  So go them.  But the cost to enforce it!
  • Dave Crossland
    Dave Crossland Posts: 1,429
    thus terminating the agreement
    Copyright licenses are not agreements; they can't be terminated like this. 
    The habit of challenging the IP owners' interpretation of their license doesn't seem particularly productive or fair. 

    Like in all areas of business, there are some shady companies who try to pull the wool over their customers eyes. 

    Designing fonts since university, nearing retirement, specific experience in font enforcement, copious stories of legal risk, threat, fine and action in fonts across organizations. To me, this sounds like someone who has experience.
    Experience which may led them astray, because libre licenses don't work like EULAs and porting the experience with EULAs to libre licensed causes mistakes :) 
  • Malcolm Wooden
    Malcolm Wooden Posts: 58
    edited August 2016
    @Dave Crossland  Do you think there is some confusion here between fonts that are 'free' (i.e. do not have a license fee) and Libre fonts?

    The fonts that are available for free from such places as DAfonts are usually not Libre, they just don't charge a license fee, but they are usually published with conditions that relate to a EULA. If these fonts suddenly become popular there is nothing stopping the originator (IP holder) from changing the conditions by which they are made available and licensed.

    Fonts published under the Libre license, as of course you know, are 'Free Cultural Works' which usually have source code available and users are encouraged to make additional contributions to the project for the benefit of all users.
    http://freedomdefined.org/Libre

    But then there is also SIL Open Font License, IPA Font License, GNU General Public License and others.

    I can understand why commercial organisations get very nervous about using 'free' fonts.


  • JoyceKetterer
    JoyceKetterer Posts: 812
    @Katy Mawhood I have to admit that the reference was unintentional.  I was weaned on Sci Fi but I've not read that book.  I just looked up the wiki definition and it is apparently much more nuanced than the one I learned from programmer friends - simply "to understand intuitively".  Which is also how Webster's defines it.  So score one for Heinlein because his word is mainstream but points off me for not knowing where it came from.  I can tell you who coined avitar though (Neil Stephenson).    
  • Dave Crossland
    Dave Crossland Posts: 1,429
    Malcolm Wooden said:
    Do you think there is some confusion here between fonts that are 'free' (i.e. do not have a license fee) and Libre fonts?
    Yes. (BTW the counterpart of 'libre' is 'gratis', to disambiguate the 2 meanings of 'free' :) 
    The fonts that are available for free from such places as DAfonts are usually not Libre, they just don't charge a license fee, but they are usually published with conditions that relate to a EULA.
    Right. The conditions can be structured as a contract + copyright license or as purely the latter - two very different kinds of licenses. 
    If these fonts suddenly become popular there is nothing stopping the originator (IP holder) from changing the conditions by which they are made available and licensed.
    I think it is important to avoid the term "Intellectual Property" because it is inherently confusing (at best.) There are various laws bundled together under that term which have nothing in common except they are government granted monopolies of some sort, and therefore invite confusion and mistaken thinking. (For example, often a copyright holder is not the originator of a copyrighted work.) I recommend and request you to be specific about which kinds of laws you are talking about. 

    If a font that has been given away with no license, and therefore no one has any legal permission to even posses a copy of it, and it suddenly become popular, and the copyright holder makes claims against people who have copies, they can defend themselves against such claims with 'estoppel.'
    Fonts published under the libre license, as of course you know,
    Well, there is no single "libre license," so its misleading to say "published under the libre license" :)
    are 'Free Cultural Works' which usually have source code available and users are encouraged to make additional contributions to the project for the benefit of all users.
    These are common but source is not required by many libre licenses; and none require contribution back of modifications (or even publication.)
    But then there is also SIL Open Font License, IPA Font License, GNU General Public License and others.
    Sure.
    I can understand why commercial organisations get very nervous about using 'free' fonts.
    There is nothing to be nervous about using libre fonts, though :) 

Categories