New Year New EULA

JoyceKetterer

Hi All - 

We've been working for ages to get a new EULA up, other things kept getting in the way.  But it's now finally live, along with updated addenda.  There's one more addendum (totally new) that will go up in January.  Every time we've done a new EULA I've been appreciative of your feedback and thoughts.  Hopefully you'll find no errors (though if you do I, of course, want to know).  Even so, I'm sure you will have thoughts.  Few things please me more than nerding out about EULAs with this community.  

Most of the changes are subtile.  We didn't completely change the unit of measurement or realign the licensing to make embedding the default and "desktop use" an add-on (though I thought about it). The biggest changes are probably:
1.  We directly address cloud fonts and essentially loop it into our existing way of handing virtual machines
2. Distinction between informative pdfs (embedding is covered under basic licensing) and pdfs used as forms for people to complete (we have banking and health insurance clients so that's a common use case).
3. Changes to accommodate amorphous corporate structures and to make it clear that headquarters is responsible for the behavior of their satellites (even if they are separately incorporated)
4.  In the addenda, we made the treatment of webapps more explicate, made the counting more clear, and better explained that the fee is a pre-payment (and how overage works).

Thomas Phinney

I think the most interesting thing is that “normal” users (who do not pay for an additional license) have to convert text to outlines if they want to use Darden fonts in a PDF.

This makes differences in font rendering. Irrelevant to large type, but unfortunate for body text (or smaller) on screen.

JoyceKetterer

@Thomas Phinney Can you point me to the language you're talking about.  That may be a drafting error.

Dan Reynolds

Please, please, please allow font embedding in PDFs, without the need for outline conversion, and without the need for an extra license. Saving files as PDFs and sharing them is a standard part of every print designer’s workflow (and not just print designers).

Also, almost every job that almost everyone I know has sent to a printer – meaning of offset or digital printing company – since at least 2004 has been a PDF, too. Thomas makes a good point about rendering quality going out the window when text is converted to outlines, but having to check a license before exporting a PDF from InDesign seems out of sync with how design works.

JoyceKetterer

@Thomas Phinney and @Dan Reynolds. We definitely aren't going backwards on pdf embedding.  I think you might be looking at paragraph 1.b.  where pdf is given as one of many format options in a list of ways that one could ship "non-font" artwork to a client:

If you are a designer and use the Font Software to create artwork or text, you may only provide it to unlicensed parties (including your client) in a non-embedded format (e.g., a non-font PNG, JPEG, GIF or TIFF), a rasterized vector format (e.g., a PDF or EPS file created using the “Create Outlines” command in Adobe InDesign or Illustrator) or a secured format (e.g., a “protected,” subset embedded pdf or “noneditable” Flash SWF file for distribution on the web). If you want to send your client a file that permits the client to edit or modify the file using the Font Software, your client will need to have its own license to use the Font Software.

1.h. says the following:

As courtesy exceptions to section 1(a), (c), (d) and (g), you are permitted to (1) provide PDFs to unlicensed users so long as the primary purpose of the PDF is not for the recipient to enter text; and (2) provide the Font Software, or editable PDFs or live mechanicals containing the Font Software, to unlicensed 2D printing vendors to reproduce jobs specified by you, so long as you ensure that the vendors delete or return the Font Software to you at the conclusion of rendering services. For the avoidance of doubt, the use of a “fillable” form where the primary purpose is for the recipient to enter text is not a covered exception and would require an addendum to this License. 

I see why you got confused and I'll think about how to make it more clear.  In drafting this we ran into the limitations of linear document formatting.  I thought about having a side bar for examples and to point people to other paragraphs that add nuance but it was too messy

Dan Reynolds

That’s good! I know that it is complicated, but when I approve contracts, I certainly like to be able to reference them later without having to re-read everything instead of just one section. In other words, I am least confused when a license or a contract doesn’t have one part that offers an exception to a former part. I tend to view addenda as the place for that, not other parts of the contract itself.

JoyceKetterer

@Dan Reynolds. I try to avoid that sort of thing too.  But the truth is that most end users don't know that "print to pdf" embeds the fonts.  So, making that permission too prominent actually market tests as more confusing.  We've done it this way for a while and it seems to work.  The idea of moving nuance and examples to a side bar was very appealing but when we tried to actually implement it we couldn't quite make it work typographically.  We are a design studio, after all, and we didn't like to look of it.

Thomas Phinney

OK, I see what you are trying to do. However, 1(h) does not say it is an exception to 1(b); it says it is an exception to 1(a), 1(c), etc. So I find that ambiguous at best.

When I am involved in drafting contracts, I sometimes like to make the section that has exceptions to it, which do not immediately follow, reference any such exceptions. So besides having 1(h) correctly say it is an exception to 1(b), have 1(b) say something like “with exceptions as noted in 1(h) below…”

JoyceKetterer

@Thomas Phinney I don't actually think it needs to be an exception to 1.b. 1.b is just a list of examples.  The restrictions are in the referenced paragraphs 

JoyceKetterer

Ps- have noted this and will double check with my lawyer but I'm not going to the trouble of an edit just for this.  I honestly think the list of people who'd catch this as confusing is mostly on this board.  When I have five or six things I want to change I'll make sure to discuss this.

Thomas Phinney

Apologies for being too hasty in processing that!
I hope that if I were actually buying fonts and reading the EULA I wouldn’t have tried to read it on a mobile device while in a hospital waiting room. And if I do so, I deserve whatever misunderstandings I get. 

To continue a discussion Joyce and I were having elsewhere…

Section 2(a) is pretty gutsy, allowing for future unilateral modifications by Darden Studio, to deal with new technologies or uses not currently envisioned or dealt with. I think it is actually not unreasonable insofar as it is specifically limited to such things; Joyce can’t just revise the existing rules on embedding for current users.

I am also sympathetic to 2(b) with its handling of tiered corporate entities. Given ever-more-complex corporate sub-entities, it makes sense to me as something foundries would reasonably want. I am curious how this would work in court. I can see that a parent entity could bind its children to something, but can the child entity make a parent responsible for something just because they agree to the EULA? Super curious if that would hold up in court.

OK, now to get back to making fonts....

JoyceKetterer

@Thomas Phinney 2.a. has been in our EULA at least five years.  We actually used it in 2020 to permit employees working from home during lock down to install fonts on computers not owned by the licensee entity.  

I'm sure you have a point about 2.b but, in practical terms, what usually happens is that the parent company also has a license.  What we mostly see is a parent company that makes a brand decision for the entire global brand, buys licensing for their own needs, and expects the other global entities to buy their own licensing. Unfortunately, it's also common that the various "child" companies get confused and think the parent has bought licensing for everyone.  Which is honestly reasonable since they are dictating in a style guide that it should be used.  So, the circumstance you imagine is unlikely to actually arise.  
 
edit: and thanks for the compliment.  gutsy is good

Thomas Phinney

Oh! Thanks for explaining the real-world situation(s) underlying 2b.