What to do about Open Font License violations?

Peter Baker

I have discovered two of my OFL-licensed fonts being sold as part of a package of fonts, under different (more restrictive) terms than in the OFL. I'm not losing any money here, but this conduct seems to me outrageous, and I would like to do something about it. But what? I'm sure this situation has come up for a number of people here, but I haven't been able to find a discussion of it here. If you produce OFL fonts, what do you do when it happens?

Dave Crossland

You can try to contact them and ask them to heal the violation. If that doesn't work, you can ask them for (or find directly) their postal address, and write them a formal letter with a gentle threat to take them to the small claims court. And then you can have a real lawyer write to them with a full on copyright lawsuit threat.

John Hudson

Dave, can you point to examples of lawsuits arising from violation of libre software licenses? I have wondered about the economics of this.

Peter Baker

Thanks, @Dave Crossland. @John Hudson: There's a Wikipedia page on Open Source License Litigation. Makes an interesting read. Looks as if Open Source licenses have done pretty well in court.

Peter Baker

Last night I wrote to the contact address on this small business's website pointing out that the licensing terms stated on their website were incompatible with the OFL, which did not permit re-licensing the fonts, and requesting that they do something about it. I very quickly got a polite note to the effect that they had removed my fonts from the package and changed the wording on their website.

Where before their website told customers that fonts could not be shared, etc., it now qualifies the restrictions with the phrase "Unless stated otherwise" (they say they include the OFL with all OFL-licensed fonts).

I wrote back thanking them for their quick action and advising that I believe the website should state explicitly that some fonts are separately licensed (mine can't be the only OFL fonts in the package) with terms that supersede those stated on the site. (My understanding of the OFL is that it permits selling fonts as part of a package, but any license for the package can't supersede or modify the license of the OFL font.)

I don't know if they'll follow my advice, but the matter seems to be concluded insofar as it concerns my stuff.

Quick update: They did update their license page to point out that some fonts have more permissive licenses and that the licenses accompanying the individual fonts are the ones that apply.

JoyceKetterer

Hi - I think you also might have standing to submit a take down request to Google?  @Dave Crossland

Dave Crossland

I agree Joyce, if you were in a conflict you could likely submit takedown requests to search engines with a clear explanation of how your copyrights were being violated and the engine should de-list the alleged offender. 

But I think Peter's experience is very typical - people outside the members of this forum don't think too much about font licensing, especially odd-ball libre licensing - and welcome a friendly chat from someone who does.

John, the economics can be very good, because of how harsh copyright law can be for violations - but most people who pursue full on lawsuits are only seeking compliance, not a payday, and are operating in non-profit organizations. 

The wikipedia page doesn't mention the pending litigation with Vizio (https://sfconservancy.org/copyleft-compliance/vizio.html ) which I believe may be historic.

Thomas Phinney

That particular link to the Vizio case does not work for me. Here is a general link that does: https://fossa.com/blog/massive-implications-software-freedom-conservancy-vs-vizio/

The fact that the court found that that third party beneficiaries can potentially enforce open source licenses is a Big Deal.

Also very interesting is that the court found that the license is both a copyright license and a contract.

John Hudson

I can understand the economics of enforcing libre software licenses with clear copyright protection. The economic aspect that I wonder about is specifically that of a small font foundry that publishes a font under a libre license, e.g. because they have been paid to create the font or publish it under OFL, and then encounter a violation of that license. On the one hand, the foundry may be the copyright holder, but on the other hand this is a product from which the foundry expects no future licensing revenue. So what is the incentive to enforce compliance? Writing polite letters costs time, writing threatening letters costs time, hiring lawyers to write threatening letters costs money, hiring lawyers to actually file a suit costs a lot of money. The possibility of obtaining significant damages and recovery of costs from a successful suit is always a gamble, and in the case of font copyright more may be on the line than just one foundry’s interests. So beyond a polite engagement with the violator—and I 100% agree with you about the value of a friendly chat about licensing—, I don’t see OFL enforcement being something worth the cost.

[M]ost people who pursue full on lawsuits are only seeking compliance, not a payday, and are operating in non-profit organizations. 

Maybe we need a non-profit specifically to pursue OFL compliance? Or perhaps there is an existing free software non-profit that would do so?

John Hudson

Thought: engagement with license violators re. OFL might be easier than engagement re. a commercial license, because of the perceived common good of the former, even though the grant-of-rights has exactly the same underpinning in both licenses.

Peter Baker

So beyond a polite engagement with the violator—and I 100% agree with you about the value of a friendly chat about licensing—, I don’t see OFL enforcement being something worth the cost.

I was thinking exactly this thing, John. It was worth the ten minutes I took to write the note, because I was outraged and wanted satisfaction, but beyond that? I've never made a nickel from any of my fonts (well, actually, someone once left a $25 donation at my old SourceForge site, and once a colleague at a conference bought me a beer as thanks for one of my fonts), so if the person in question had stonewalled me, I probably wouldn't have pursued it.

In fact, probably everyone who produces libre fonts knows that a bunch of fly-by-night free download sites that live on ad revenue scoop up and post libre fonts, frequently with wrong attributions or wrong licenses (like "for personal use only" for an OFL font). I don't think it's worth the effort to play whack-a-mole with these sites. You can only get satisfaction from someone who cares about making their money honestly.

On litigation: the Free Software Foundation will sometimes sue or threaten to sue GPL violators. But a number of biggish companies have a stake in the GPL, so there's some money behind the FSF, and they get a good bit of volunteer and pro bono help (see here). I don't think there could be anywhere close to that much economic muscle behind the OFL, and so it depends on voluntary compliance and good-faith responses to friendly admonitions.

jeremy tribby

FSF vs. Cisco is a relevant case, but the settlement (as most are) was undisclosed. You can infer it was a lot, though: FSF sought profits from offending hardware, including the Linksys WRT54GL, which was one of the most popular routers ever

Typedesigner

Unfortunately, not only OFL-licensed fonts but also commercial fonts are illegally distributed on the Internet. Most of these websites outside of the European Union do not have an imprint, which makes it very difficult to contact them. If the foundry is located in a different country to the website owner where the fonts are being offered illegally, the cost of legal enforcement increases enormously. In this respect, it is important to consider carefully on a case-by-case basis whether legal action is worthwhile. In this context, "international jurisdiction" must also be considered.

Dave Crossland

John Hudson said:

the foundry may be the copyright holder ... what is the incentive to enforce compliance? 

That's the historic importance of the Vizio case: If you obtain a font that you should have under the OFL but that OFL has not been applied, and the Vizio case plays out as expected, then in the USA then you as an end-user can enforce compliance, in order to obtain your rights, rather than waiting for the copyright holder who may not care that your rights are being dismissed. 

[M]ost people who pursue full on lawsuits are only seeking compliance, not a payday, and are operating in non-profit organizations. 

Maybe we need a non-profit specifically to pursue OFL compliance? Or perhaps there is an existing free software non-profit that would do so?

I am not aware of any important longstanding infringements of the OFL; if there were a few cases, getting more organized like that might make sense... And yes, I expect Software Freedom Conservancy might be willing to help, a large part of what they do is acting as an umbrella organization to give otherwise unincorporated software freedom projects an institutional home. 

Dave Crossland

Typedesigner said:

Unfortunately, not only OFL-licensed fonts but also commercial fonts are illegally distributed on the Internet. 

My perception is that those sites do include the OFL, or retain the OFL notices inside the font binaries, and so remain in compliance...

Igor Petrovic

JoyceKetterer said:

Hi - I think you also might have standing to submit a take down request to Google?  @Dave Crossland

How effective is submitting a takedown request to Google?

A few years ago I tried and didn't get through the process. Can't remember why exactly but the interface looked overly bureaucratic and discouraging even though I had a completely clear case.

Also, we have well-known long-standing pirate websites like Fontke.com. Is it possible that no one submitted a takedown? Or does the Google algorithm not know it is piracy as it can be?