Licensing ethics (aka tricky clauses) – Goldman Sachs

KP Mawhood

https://www.theverge.com/tldr/2020/6/25/21302831/goldman-sachs-font-sans-criticize-disparage-license

This reminds me of some of the license clauses I saw in a past font management role (client-side). A colleague told me a story where one of these clauses was enforced (relating to a EULA with restricted use for logging, pornography and faith), and I'm wondering if anyone here knows of similar disputes?

I stumbled across this about "licensing morality" that raises some interesting questions:
https://chapeau.freevariable.com/2014/09/licensing-and-morality.html

Philipp Schumann

Thanks for this post, very insightful! I remember once seeing something along those lines in the license agreement of a well-known US foundry... Although I have to say this had nothing to do with free and/or open source typefaces.

So I wonder, what difference does it really make if you license the font for 0$ or 50$, in terms of licensing morality? Especially because typical free and/or open source typefaces that were not developed for a big company tend to... not have too many restrictions, morally or otherwise. Also, many people downloading those fonts don't really bother to read the license anyway, unfortunately...

Aside from all that, is it generally a good idea to put in those morality clauses? In terms of morality itself? I personally don't think it is, mainly because they often seem to be either too vague or too specific. What do you think?

Nick Curtis

Morality cannot be legislated, and the simple act of trying to impose one's own moral opinions onto others is itself an immoral act.

KP Mawhood

Nick Curtis said:

Morality cannot be legislated, and the simple act of trying to impose one's own moral opinions onto others is itself an immoral act.

I definitely feel angered by agreements that leave me asking "what did I sign up to?", or worse those that were never clear in their terms and/or change them unexpectedly. It's particularly brutal when there are political consequences. Most orgs have internal rules/NDAs that prevent you from disclosing what happened when disputes occur.

That said, it's often difficult to walk away once you've been tied in for several years. There are always consequences.

Should I drop a good font that works great because its license is difficult, expensive and risks landing us in legal trouble? How will the design team respond, how many specifications must be changed, what is the cost to us internally?

As an aside, I was always under the impression that much of our legal history was defined by a dominant religion or spirituality in that region?

Craig Eliason

Nick Curtis said:

Morality cannot be legislated, and the simple act of trying to impose one's own moral opinions onto others is itself an immoral act.

Isn’t law primarily a formal agreement of what society considers right and wrong? If law isn’t based on morality, what is it based on? And is it an immoral act to say thieves should be brought to account, even those who don’t think theft is wrong?

John Hudson

Should I drop a good font that works great because its license is difficult, expensive and risks landing us in legal trouble?

This question takes us to the awkward heart of this business: what it is that we are selling or buying. People want fonts, people see fonts, fonts are what foundry websites present and promote as products for purchase, but what we are in the business of selling and buying is the license. The license is, in fact, the product, so a good case can be made that questions or concerns about the license terms should indeed override the qualities of the typeface and fonts.

JoyceKetterer

@Katy Mawhood When you say "enforced" do you mean by a court?  Or do you just mean that the licensor asserted the clause? You can put anything in a contract but that doesn't mean that it's got legal grounding. As a non lawyer, I think that clauses like prohibiting types of uses are probably not enforceable in court. And, even if some are ones like these which are both self serving and vague don't seem like they'd still not be enforced.  It's just not how fonts work.

JoyceKetterer

@John Hudson  yes, but:

Just because you can put literally anything in a license doesn't mean that it is enforceable in a court. I think it was House Industries who used to have a "you give us your first born" clause as a joke about people not reading the license.  They could do that, in part, because it wasn't ever going to go to court.

This reminds me a lot of when we were trademarking Halyard. A lawyer from a company called Halyard that makes medical devices put a hold on our application and wanted us to agree that our font would never look like their logo. Our trademark attorney also didn't know enough about fonts to know that was an absurd request. It was only because we had savvy people on our team (me and our primary attorney) that the request didn't go through.

Similarly, it's still the case that a lot of lawyers reply to an inquiry about unlicensed web embedding (or whatever) by their client with any argument about copyright law - as if it will make us go away entirely. I barely even notice when copyright comes up in a negotiation because we are informed and can swat it away without a second thought. As a licensing expert, I usually hear about this from the foundry several months later when they are mired in a messy dispute because their own lawyer took that argument at face value.  

The law is only as good as the lawyer wielding it. 

The restriction of use thing is a classic case of a lawyer who doesn't understand fonts doing a thing that makes sense in other contexts (like with the Halyard trademark). Which is also probably why another lawyer on the other side didn't have the confidence to fight it.

Like all the other things with font licensing, people don't need to be in bad faith to make a mess. I don't think the lawyers who write the clauses restricting types of uses understand that it's not practical or the negative consequences they are causing.   

There's a reason you don't see clauses like this from even the most combative of the more sophisticated companies. 

This is a symptom of the few business experts in the industry being ungenerous with their knowledge.  This results in there not being a strong ecosystem of other professionals like lawyers who understand the practicalities and logistics of font technology/use.   The solution is education.  The best thing for our industry is for those of us who are seen as knowledgeable to respond with incredulity when these things come up.

KP Mawhood

@JoyceKetterer

The chap who told me was an old-hand in license enforcement. I'm asking a friend who worked with him directly, but neither of us has a contact number/email that works. It's quite likely that he has passed away since he had cancer when I last spoke to him.

He was a great storyteller. I don't think he'd fabricate a story entirely, although he might exaggerate it. Combine that with my bad memory. The story as I remember it was that the clause was enforced. I got the impression that legal teams were involved. That may have been in court or internal discussions.

Internal seems likely given how most font disputes are handled. 

JoyceKetterer

@Katy Mawhood Thanks for fleshing out your story.

Also, if there were court filings it would be public and I think it would have been news. We'd all know. 

My argument is that these clauses probably wouldn't be upheld and definitely shouldn't be.  I say this because they have no grounding in the functionality of fonts.   It's one thing to say you need a specific license to use the a font to make a logo (which I think is strategically confusing but not totally ungrounded).  It's an entirely different thing to say you can only use a font for logos that start with the letter "m".  Or indeed, never for logos that start with the letter "s".

That article you linked to said that one reason not to have morality clauses is that they are vague and capricious.  Yep.  But even if you can restricts on use that isn't based in morality they are still ungrounded in the reality of how fonts work.  

A client of ours once asked if we could add a clause to our license forbidding use of it by others in their specific industry (let's pretend it was toilet paper).  That not vague or prone to capricious enforcement like "bathroom products" might be, but it's still not feasible to enforce. 

I maintain that Goldman Sachs isn't ever going to be able enforce their clause either and that the only reason it's there is that the lawyer who wrote it doesn't understand fonts.  They also claim copyright, btw, and have brows wrapper EULA consent.

KP Mawhood

JoyceKetterer said:

This is a symptom of the few business experts in the industry being ungenerous with their knowledge.  This results in there not being a strong ecosystem of other professionals like lawyers who understand the practicalities and logistics of font technology/use.   The solution is education.  The best thing for our industry is for those of us who are seen as knowledgeable to respond with incredulity when these things come up.

As a curiosity question, how many people would you ballpark as being business experts of this type in the font industry? I am assuming that we just do not hear from a lot of them.

@Philipp Schumann

So I wonder, what difference does it really make if you license the font for 0$ or 50$, in terms of licensing morality? …aside from all that, is it generally a good idea to put in those morality clauses? In terms of morality itself? I personally don't think it is, mainly because they often seem to be either too vague or too specific. What do you think?

I feel like the four freedoms are good examples of licensing morality in libre/open-source. Since these are there to protect users, I thoroughly approve of these clauses. But, maybe this is too narrow a definition. I think it is fair for proprietary licenses to have "no mod" clauses which are arguably a morality clause.

There may be some "typography ethics" to uncover in the proprietary world. How do we provide access to different users around the world? Are morality clauses missing a trick by leaving their terms out of marketing campaigns for licensees who signal virtue? 

I'm also reminded of upsetting and discriminatory rows, where small businesses pick and choose who they serve. Many of these are historic. Typeface design can be inherently personal, and so it makes sense that these values overlap.

JoyceKetterer

@Katy Mawhood I've no clue how many business experts there are.  As you say, most of them are shadowy figures.  I see their work and so I know for the most part where they are and where they aren't (URW had none, Hoefler has probably several) but no idea of their names or number. Also, I've talked to all the people who present themselves publicly and have dismissed some of them as not actually expert.

I count JBL, who most people don't realize is very good at this, and you (because you could - even though you don't - run a foundry with not much of a learning curve).

I think there are under 50 of us.  But that's a guess I came up with so I could tell my mom that fewer than 50 people in the world can do what I do what I do.  It amused her.  

KP Mawhood

JoyceKetterer said:

run a foundry with not much of a learning curve

Thanks for the compliment. But, if we include folk who can run a foundry without much of a learning curve as business experts then we include most of the world's entrepreneurs, financial, operational and managerial talents (among others).

PS. I think running a foundry successfully is no easy task. True entrepreneurs who I have met almost always downplay their every day, whilst shining a light on their unique skills.

I think there are under 50 of us.  But that's a guess I came up with so I could tell my mom that fewer than 50 people in the world can do what I do what I do.  It amused her.  

Haha, I used to do similar with font management specific roles. I was aware of around six people worldwide when I was in the role.

JoyceKetterer

Thanks for the compliment. But, if we include folk who can run a foundry without much of a learning curve as business experts then we include most of the world's entrepreneurs, financial, operational and managerial talents (among others). 
PS. I think running a foundry successfully is no easy task. True entrepreneurs who I have met almost always downplay their every day, whilst shining a light on their unique skills.

@Katy Mawhood  you've caught yourself in a trap.  I agree with your second paragraph and that's why I disagree with the first.  But also, I'm not talking about entrepreneurial skills.  I'm referring to knowing about licensing, understanding buy side concerns that are specific to fonts, etc.  Even among long standing font professionals these things are rare.  You know more than you think you know.  You are frequently the person I ask when I don't know something, and I quote you every single time I give a lecture (though I don't credit it because I don't want people to know what organization I'm talking about).

KP Mawhood

@JoyceKetterer

If I'm caught in a trap, then I do not know how to escape it. Knowledge atrophies over time. I have not found a solution to transition this part of my professional skillset. It is something that I give away gladly and freely since that is how I acquired the knowledge.

This is a personal career dilemma. I appreciate the guidance that you, and others, have given me. I don't know where those business opportunities may be discussed/advertised nor whether I would be a good fit.   

JoyceKetterer

@Katy Mawhood part of the problem with there being no ecosystem of business minded people in the font world is that no one knows how to leverage the skills.  A few years ago when I was considering going out on my own I had the same problem.  Doesn't means you're not expert.

Daniel Benjamin Miller

I am not a lawyer. I think this non-disparagement provision is probably [ed. not] enforceable [in the U.S.; see https://www.congress.gov/114/plaws/publ258/PLAW-114publ258.pdf and, for California, http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2365]. But it is also not acceptable. Nobody should agree to use Goldman Sans, a "free" font in the monetary sense and no other.

Typefaces are tools for expression of thought. Any gag rule on a typeface makes that typeface a broken tool, which should be dismissed in favor of actually usable alternatives.

JoyceKetterer

post deleted