New End User Licence Agreement For FontFonts
Back in April, FontShop International introduced a new End User Licence Agreement, permitting embedding of FontFonts in any non-editable document, application, and even device* – be it for “commercial” or “non-commercial” use –, as long as the font is embedded as a subset in a secure format, so that only viewing and printing but not editing is possible. This End User Licence Agreement – commonly abbreviated as EULA – that accompanies every single professional digital typeface is often overlooked by users. Yet it is a very important document, as it specifies what you can and can’t do with the fonts you purchased; it defines what we could consider a set of rules. For example, you can’t simply pass on the fonts to someone else, or modify them and then distribute the modified fonts as your own. This is because you don’t actually own the fonts you purchased, but simply acquired a licence to use them. Just as with any other artistic work the intellectual property rights remain with the type designer and the foundry. In the case of some foundries End User Licence Agreements are quite restrictive, while others allow a lot more. And it sometimes happens that a foundry adapts its EULA to conform to changing habits and changing times. New elements have to be taken into account, like type in portable documents and on websites for example.
While at first sight the changes in the new FontFont EULA aren’t so many in quantity, they sure are high on quality. When purchasing FontFonts the user acquires more rights than previously, and by doing so FontFont abandons a number of former special licences or licence extensions that originally had to be paid for in addition to the basic licence. This more generous EULA gently eases FontFont into the 21st century, as it possibly is the first of the big foundries to take into account a number of new applications and allow specific types of usage in its standard licence. Basically now you can do more with FontFonts than with fonts from many other foundries.
The most relevant change is that FontFont now allows embedding in any non-editable document, application, and even device* – be it for “commercial” or “non-commercial” use –, as long as the font is embedded as a subset in a secure format, so that only viewing and printing but not editing is possible. This is especially attractive for corporate users, because companies don’t need additional licences for (non-editable) embedding using their already licensed corporate typeface. As the “serious” FontFonts – many of them super families – are very popular in corporate design this is of course a huge improvement, and saves users a lot of money on licence extensions.
|(*)||such as PDFs, Flash, sIFR, Microsoft Office 2007 documents (each with their appropriate security settings), computer games, software, hardware, mobile phones, air plane entertainment systems, electronic wayfinding systems, ATMs, game consoles, and so on; as long as the text is non-editable and the fonts are embedded as a subset in a secure format.|
The key elements in the EULA are the terms “secure format” and “subset”. They are very well explained in this PDF. As you will read below in § 2.2 the EULA requires a secure format for permitted non-editable embedding. This means that the font file itself and/or the document, application, or device containing the embedded font file must be encrypted. For example the current “epub” format as well as “raw” OT/TT font linking in websites is not permitted. Of course features of currently known formats may change and new formats may be introduced, so it cannot be guaranteed that a specific format will comply to the current EULA requirements. In any case, the user must make sure that the embedded font file is not installed on the target system and is not usable by any other applications.
A subset means a reduced character set. A font file consists of outline descriptions and references to the outline descriptions. Such a complete font file must not be given to any unauthorised party. For secure embedding of subsets, the removal of the references to the outline descriptions is not sufficient. Secure embedding of subsets requires the removal of the actual outline descriptions. Embedding of complete character sets in a secure format that allows editing of documents requires an Editable Embedding Licence. For distribution of font software in an unencrypted, non-secure format a Non-Affiliate or OEM Licence must be purchased.
Explaining the EULA
Let me tell you a little anecdote. When I did the Big Fleishmann Bake-Off for my Bald Condensed column on Typographer.org, I received review copies of some of the Fleishmann interpretations I wanted to compare – Matthew Carter’s Fenway, Christian Schwartz’s Farnham, and Hoefler & Frere-Jones’ Mercury. When I noticed halfway in the licence document accompanying Mercury that it was for a retail version, not a review licence, I asked for a correct licence document. Jonathan was quite surprised that I had actually gone through the complete text. While it seems evident to me that one always checks the EULA to see what is and isn’t allowed with the fonts one just purchased, apparently it isn’t that common.
So maybe this is a good occasion to guide you through a EULA – in this case the FontFont one – and annotate it. As I am notoriously rubbish with legalese, this should be a good test for myself as well. If you have any questions or suspect I misinterpreted something, please feel free to comment below.
End User Licence Agreement for FontFont Typefaces
This end user Licence Agreement (hereinafter “Agreement”) is a legal agreement between you, or, if you represent a legal entity, that legal entity (hereinafter “you”) and FSI FontShop International GmbH (hereinafter “FSI”), and is applicable to the Font Software that is accompanied by this Agreement or that you have ordered online.
This is a typical opening paragraph for any legal document, specifying who the concerned parties are. It is important to note that it makes no difference if you license the fonts for yourself or in the name of your company – the same rules apply.
By downloading the Font Software or opening the package, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not download, install, or use the Font Software. If you have purchased a Licence to use the Font Software in a sealed retail package and do not agree to the terms of this Agreement, return it unopened to the place of purchase.
Just like you can’t return an unsealed CD or DVD, you can’t do this with a font package neither. The problem with online purchases is that once you’ve downloaded the fonts there is no way the foundry can determine if you decompressed the zip file and started using them or not. This means the process of downloading already is the equivalent of unsealing of the fonts. The online customisable line sample, display and text specimens, character set overview, and so on allow you to thoroughly review the fonts before the actual purchase and download.
“Font Software” means coded software that generates typeface designs when used with the appropriate hard- and software plus any and all other data including documentation provided with such software.
“Licensed Unit” means an installation of the Font Software that allows up to five (5) concurrent users to use it at a single geographic location. A single geographic location is in particular the site of your place of business. The geographic restriction does not apply to portable computers if they are owned by you.
Although there are exceptions, most foundries license their fonts for up to five concurrent users. This means you pay for one licence and get four for free, not that you can get cute and ask for a single licence at one fifth of the retail price, silly. All those users must be in the same office or building or whatever physical location, so your colleague in Timbuktu – or the next town or even just down the street – has to purchase a separate licence.
2. Grant of License
2.1. Number of users. FSI grants you a non-exclusive licence to use the Font Software in a Licensed Unit for your own personal or business purposes according to the terms of this Agreement. If the number of users who use the Font Software exceeds those set forth in the definition of Licensed Unit above, then you must request from FSI or its authorized Distributors an appropriate licence covering all users. An additional fee will be charged for this licence extension.
If you have a small design agency with three designers but a total staff of twelve, a basic licence suffices for fonts used for design work, but licences for the corporate fonts used in the design agency’s correspondence and such need to be extended to multi-user licences. Basic math. And the “non-exclusive” bit means that you shouldn’t be surprised if other people use the same typefaces. If you want to avoid having someone else wearing the same dress at the ball, have one custom designed for you personally. The same applies to typefaces.
2.2. Embedding. You may embed the Font Software in documents, applications or devices either as a rasterized representation of the Font Software (e. g., a GIF or JPEG) or as a subset of the Font Software as long as the document, application or device is distributed in a secure format that permits only the viewing and printing but not the editing of the text. You need an additional licence from FSI or its Distributors (i) for the use of the Font Software in documents, applications or devices permitting editing of the text, if such documents, applications or devices shall be distributed to third parties or (ii) if the Font Software is embedded neither as a subset nor as a rasterized representation.
Rejoice – this is the aforementioned paragraph that grants you a lot more rights than previous EULAs and most other foundries.
2.3. Back-up. You may make back-up copies of the Font Software for archival purposes only, provided that you retain exclusive custody and control over such copies.
The purpose of a back-up is to have a safety copy in case anything goes wrong with your original font files, not to “lend” it to friends or acquaintances, or leave it lying in the back of a taxi. And don’t think you’ll make yourself popular by handing out fonts you licensed. Trust me, you’ll just be perceived as silly and unprofessional, passing on stuff for free that you paid for, plus it’s not even yours to distribute.
2.4. Service bureaus. You may take a digitized copy of the Font Software used in a particular document to a commercial printer or service bureau for outputting this particular document (this document must not be edited by the printer or service bureau). In the event of any modifications to the document or use of the Font Software for other purposes, the printer or service bureau must purchase its own Font Software licences.
This is an older improvement, from way back. When I started out (in the pre-PDF days) the printer or service bureau had to own a licence for the fonts used in your designs to output your films. Nowadays the EULA permits you to include the fonts with your output files. Of course as soon as the printer or service bureau actually uses the fonts to modify your files or in their own work they have to get a licence of their own.
2.5. Copying. Except as granted in 2.2. to 2.4., you may not copy the Font Software or allow third parties to copy the Font Software. Any copy of the Font Software must contain the same copyright, trademark, and other proprietary information as the originals.
Again, you can’t distribute what you don’t own. Keep your font licences to yourself; just like you would your other software licences, your computer, your books, and so on. They are an integral part of your business capital allowing you to earn a living, so treat them accordingly and with the utmost care.
2.6. Modifications. Except as granted in 2.2., you may not modify, adapt, translate, reverse engineer, decompile, disassemble, alter, or attempt to discover the source code of the Font Software. If you want to make modifications to the Font Software, you must obtain the prior written consent of FSI.
What you can do of course is convert the type to outlines and customise it for your own work, for example when designing a logo or custom headline. However you can’t create customised versions of the fonts and redistribute them, not even for internal use. As the intellectual property remains with the type designer you need to ask permission for that, just like with any other artistic work. Personally I’d be very cross if a client changed anything about a logo I designed without telling me anything.
The Font Software, and all copies thereof, is protected by the United States Copyright Law, by the copyright and design laws of other nations, and by international treaties. Any copyright, trademark and other rights belong exclusively to FSI, except as expressly provided in 2.1. You do not gain the ownership of the Font Software under this Agreement. The structure, organization, and the code of the Font Software are trade secrets of FSI, and you agree to treat them as such.
Basically just making sure you know you don’t own the fonts, and stating that they are protected. It may seem repetitive, but that’s how legal documents work.
4. Transfer of License
Except as expressly provided herein, you may not give, rent or lease the Font Software or parts of it to third parties. You may transfer all your rights to use the Font Software and Documentation to another person or legal entity provided that (i) the transferee accepts and agrees in writing (with copy to FSI) to be bound by all the terms and conditions of this Agreement, and (ii) you destroy all copies of the Font Software and Documentation, including all copies stored in the memory of a hardware device. Without limiting the generality of the foregoing, you agree that you will not distribute or disseminate all or any part of the Font Software through any online service.
The transfer of font licences may seem a bizarre concept, but it is applicable when selling your business, or in case of bankruptcy, or if you acquire another business. Of course this only makes sense if the person or company you transfer the licences to agrees with the EULA and informs FSI of this in writing, and if you completely stop using the fonts. If you don’t there is no transfer but distribution, and this is expressly forbidden.
FSI warrants to you that the Font Software will perform substantially in accordance with the Documentation for the ninety (90) day period following your receipt of the Font Software. To make a warranty claim, you must return the Font Software to the location from which you obtained it along with a copy of your sales receipt within such ninety (90) day period. If the Font Software does not perform substantially in accordance with the Documentation, the entire and exclusive liability and remedy shall be limited to either, at FSI’s option, the replacement of the Font Software or the refund of the licence fee you paid for the Font Software. FSI and its suppliers do not and cannot warrant the performance or results you may obtain by using the Font Software or Documentation. The foregoing states the sole and exclusive remedies for FSI’s or its suppliers’ breach of warranty. Except for the foregoing limited warranty, FSI and its suppliers make no warranties express or implied, as to non-infringement of third party rights, merchantability, or fitness for any particular purpose. In no event will FSI or its suppliers be liable to you for any consequential, incidental or special damages, including any lost profits or lost savings, even if a FSI representative has been advised of the possibility of such damages, or for any claim by any third party. This warranty does not affect any claims you might have against your retailer.
This section simply states that you shouldn’t wait three years before returning defective fonts, but do that within a reasonable three months. If they truly are defective you will receive replacement fonts or a refund, but no compensation for work that you couldn’t carry out, which is the customary warranty for most products by the way. It also points out that you should make an informed purchase, making sure the fonts are compatible with both the operating system and the software you are going to use them with. It is your responsibility to determine whether you can use OpenType versions, or if you still need PostScript or TrueType fonts. In case of doubt, ask FontShop, they will help you.
6. Governing Law
This Agreement will be governed by the laws of Germany. This agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. You agree that the Font Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restrictions or regulations. This Agreement may only be modified in writing signed by an authorized officer of FSI.
Now this is through and through legal stuff. I don’t really know what to add, but if you have any questions about this paragraph please ask them in the comment section below.
FSI has the right to terminate your licence immediately if you fail to comply with any term of this Agreement. Upon termination, you must destroy the original and any copies of the Font Software and Documentation.
Remember you don’t own the fonts. If you don’t behave, it seems pretty logical that you can’t use them anymore.
8. General provisions
You agree to inform all users who have access to the Font Software about the content of this Agreement and to make sure that they comply with the terms of this Agreement.
Or just point them to the EULA document and have them read it themselves. You have done the (small) effort, so can they, the lazy bastichs.
FSI FontShop International GmbH, Bergmannstr. 102, 10961 Berlin, Germany
You have problems with or questions about any of the above, these are the folks to contact. Figures.
So, I hope this clears up a couple of things and encourages you to take more than just a cursory glance at the End User Licence Agreement next time you purchase digital type. Because if you love type designers and foundries, they will love you back and create new and exciting designs for you to use and earn a living with. Believe me, two-way relationships are the best (says the guy with a wonderful wife and three adorable kids).
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