In this post I write about certain aspects of an EULA, and make observations about what I like and don’t like. Note that I AM NOT A LAWYER, AND THIS POST DOES NOT CONSTITUTE LEGAL ADVICE.
If you didn’t see my last post, I wrote about the anatomy of an End User License Agreement (or EULA). When someone wants to use a font, they can’t purchase the font itself, they can only purchase the legal right to use the font within certain constraints. This is called licensing, and the EULA governs this agreement between the owner of the font (the foundry) and the user.
Notice in the paragraph above I said the user has a right to use the font “within certain constraints.” Some of these are obvious constraints, like “don’t distribute my fonts to people who haven’t paid for a license” or “don’t try to sell my fonts as if they were yours.” However, there is a wide range of use restriction out there, and those restrictions vary from foundry to foundry.
Some restrictions are immutable, but others are allowed with appropriate compensation in the form of additional or extended licensing. This post is about use restrictions that are allowed with additional or extended licenses.
Read the EULA
Because use restrictions differ so much, it’s important to always read the EULA when licensing a font.
People agree to EULAs all the time. Any time I download a piece of software or an app on my phone, I’m consenting to a EULA. And if I’m honest with myself, I rarely (if ever) read those agreements. Fonts are software, and use licensing just like software.
But unlike most software companies, which seem to build user experiences around blindly clicking “Agree,” font foundries want their customers to read the EULA. It’s admittedly easy to pirate fonts. And more often than we might think, “pirating” (that is, using fonts outside the limits of the agreement) happens unintentionally because a user doesn’t know what they agreed to. If foundries want users to follow the EULA, then they first need users to actually read it.
Unfortunately, a lot of EULAs are difficult to read. Some of what makes a EULA long or complicated—and to some extent unreadable—is the number or kinds of restrictions detailed in the agreement. I’ll circle back around to how to make these more readable in a bit. But first let’s dive into some of these restrictions.
Divide and Conquer
Most EULAs make distinctions between what is referred to as “Desktop,” “Web,” or “App” licensing. This has become common practice, and there is often different pricing for each kind of license.
It may not stop with these three. There may be additional licensing for:
- Embedded fonts, such as for kiosks, gaming consoles, and embroidery machines
(I know, right?! Learn something new every day),
- ePublication, such as EPUB and PDF books,
- Broadcast and Video, such as for titling or captioning a live or recorded broadcast or stream,
- or Alphabet Products, which derive their value from the designs of the glyphs themselves rather than the words the glyphs spell out, such as ampersand-shaped chocolate or a pillow with initials on it.
This of course is not the limit to what there may be additional licensing for. It can get as granular as the foundry wants to get, and that depends on the foundry’s values and priorities.
Additional licensing or extended licensing means having a different agreement for each kind of use, which is the norm. Okay Type has a slightly different take on this. They have a base EULA with different license addenda based on use. The base EULA says you can’t do certain things without the corresponding addendum. Then each addendum lays out the use rules for that case. But having multiple addenda is about the same as having multiple licenses.
Why Different Licenses?
There are risks and benefits to allowing users to do certain things with the font software. Certain uses have a higher likelihood of the font software ending up in the wrong hands. “Wrong hands“ could mean anything from a single un-intended user beyond what the license paid for, to someone trying to pirate the software in order to sell the font as their own. Either case (and many other possibilities) lead to the type designer losing money, since someone is using what the designer worked so long and hard to build without paying for the right to use it.
So if the foundry is going to allow a riskier use, then that would suggest the use would have a separate license and/or the licensing cost might be higher. I’m not sure this usually happens. Web licenses, and certainly app licenses, are usually more expensive than desktop licenses. I could be wrong (post in the comments!), but I imagine fonts licensed for desktop use are pirated far more often than web or app in the course of regular use.
I can only conclude that separate licensing is based on the expected or perceived value to the license buyer.
What value is derived from the uses outlined in a desktop license, versus the value derived from web or app or some other use? Even if I outlined all possible uses in a single EULA, I’d need to at least make a table to say how many licenses (purchase units) equate to the derived value from each use (which is what foundries in the Village co-op do, as well as Tiny Type Co.).
The difficult thing is figuring out what that value is. Some value is derived based on whether the final product is dynamic.
- If the end use is static, then the font might be licensed based on something like the number of CPUs (desktop).
- If the license holder can change the type in the end product for their end users, then the licensing might be based on the number of people viewing/downloading/streaming the thing per given period of time (web, ePub).
- If the end users can change the type in the end product, then that might warrant yet another kind of pricing (app, embedding).
But is that fair? Say I purchase one desktop license for 3 CPUs, and use it to make a printed book, and then print 5 million copies for sale. How is that different than someone who has to purchase 15 licenses for a website that will be viewed 5 million times? On the flip side, I might pay for one desktop license to produce a free printed pamphlet, but someone might be able purchase one web license for a site with less traffic, whose visitors are all paying top dollar for access premium web content.
Expected value is very fluid, so foundries have to just give it their best guess, usually based on current standards.
For instance, in addition to licenses for desktop, web, embedding, and broadcast/film, Laura Worthington has an extended license based on whether there will be more than 250,000 units of a commercial product. She also, like some other foundries, has extended licensing for alphabet products. Understanding that the value of these products is derived largely (if not almost entirely) from the type design, there should be increased compensation for the type designer, which is what an extended license enables.
Multiple License Pros and Cons
One downside to having multiple licenses is that readability and comprehension may suffer for the license holder. If someone is trying to find which license is right for them, depending on their needs they may have to read through more than one license. The confusion increases with increasing numbers of restricted uses and extended licenses or addenda.
On the flip side of that, if the customer knows what their needs are, they may only have to read through one of the multiple licenses, rather than a large all-encompassing agreement.
There may be a sweet spot with just three standard licenses (desktop, web, embedded), since it has become standard practice, and people generally understand them.
However, what the user thinks they understand and what is in the agreement may be two different things. If the customer assumes the desktop, web and embedded licenses for one foundry are the same as every other, then they might not take the time read the terms.
The ultimate goal of the foundry as far as the EULA is concerned is to get the customer to read the EULA, understand it, and abide by it. This seems to be the perpetual struggle for type designers.
I have observed a few different approaches to meeting this goal:
- Explain the license in simple terms apart from the license itself. Commercial Type does this section by section on each of their three licenses. Mark Simonson does this in a short preface to his EULA.
- Use simpler, less lawyer-like language in the EULA. Often this consists of giving examples of uses or prohibitions. The Village co-op has some good examples of this.
- Write a less-restrictive EULA that doesn’t require additional licensing. Matthew Butterick, who is a lawyer in addition to being a type designer, has a famously brief and readable EULA, which is as awe-inspiring in its simplicity as it is surprising in its generosity.
All three of these methods are valid ways of getting people to read and understand what they’re agreeing to, though some may be more effective than others depending on execution.
I’ve noticed a trend after reading several dozen EULAs: The more ironclad an agreement, the less likely it will be read and understood, and possibly the less likely is will be followed. The more readable a EULA is, the less restrictive it will likely be, and probably more likely to be understood and followed (even if it’s riskier for the foundry).
How will I write my EULA?
I want my EULA to be as concise and user-readable as possible. Matthew Butterick’s EULA and the Tiny Type EULA based on it are great examples. Tiny Type is really great because it uses the kind of sliding scale license multiplier as the Village, where the number of licenses purchased correlates to the number of users, websites, apps, ebooks, etc. allowed.
I’m just one person, and just starting out, so it seems good to me to err on the side of less restrictive and more readable. I can always update the EULA later.
However, I do like the idea of adding a few restrictions. Tiny Type mentions “OEM, large-scale and other forms of custom licensing” available with additional terms. I like how Laura Worthington requires extended licensing for producing more than a certain quantity of commercial product units. I also think additional licensing for alphabet products is a good idea. So I’m incorporating those things.
A lawyer friend of mine once said that in law school they teach you “if you aren’t plagiarizing, you’re doing it wrong.” So I’ve compiled my EULA by starting with Mattew Butterick’s EULA and Tiny Type’s adaptation of his EULA, then made changes and additions as necessary. I also gave attribution at the end of the EULA, because it is important to give credit where credit is due.
I need to run it by a lawyer to review. I might not be able to pay to have a EULA written from scratch, but I may be able to afford having one edited.
If you’d like to read it, you can download a PDF of my EULA.
With the font finished and a license written, I need to make it available to the public. Next up I’ll write about how to find distribution channels for the font.