5

I'm a fan of Garamond fonts and I even worked a little bit a few years ago on an adaptation of URW Garamond No. 8 to OpenType.

Despite my work not going further, I see that garamondx is what I wanted to achieve, but even after reading the original URW license, I'm not sure how "viral" the license really is, since my PDF documents would eventually embed a copy of the fonts.

My question here is: would my documents (say, a book that I write) have restrictions on what I can do, if I use fonts covered by the AFPL?

7

I am a lawyer. But I am not a copyright lawyer, and I am not a Californian lawyer (Californian law purports to cover the AFPL: whether it does or not might be a difficult question, and would depend on where you are). So this is not legal advice! If you want reliable legal advice, you should get it from a lawyer who you give all the details to. It's also a real minefield, because exactly what is copyrightable in a font varies from place to place.

I think we can speak to the intent here, though. The writer of the AFPL assumed US law, in which font data is copyrightable, but the actual graphic design of the font is not. They specified that you can freely distribute but cannot sell distributed works, but also included this line (emphasis added)

Functional use (running) of the Program is not restricted, and any output produced through the use of the Program is subject to this license only if its contents constitute a work based on the Program (independent of having been made by running the Program).

I'd be pretty confident that this means that if you used the outlines to produce a printed book, that would not be restricted, because it would only be a work "based on the Program" (if at all) because the Program had been run.

What about embedding in a PDF? Well, at that point there's room for argument. It's not dealt with expressly, probably because of the age of the licence. It all depends on whether, when a "program" consists of font outlines, you think that embedding those outlines in a PDF is a way of "running" the program. To me, it's not clear what it means to "run" font outlines. But I must say that I think the commonsense view would probably be that embedding in a PDF is a way of "running" the program, and therefore OK, because the PDF is not a derivative work independently of running the program. If that's so, then it's equally OK to sell a PDF. However, I know counter-arguments could be made.

Suppose I'm wrong. What's the worst that could happen? Two things, in the vanishingly unlikely case that anyone wanted to challenge you:

  1. You might be ordered to stop distributing the PDF in that form, in which case you would need to re-typeset using another font.

  2. You might be ordered to pay a royalty for the use of the font for commercial purposes. URW's most likely applicable license (its e-book license) seems to run at about €60 per font/weight, so if you used (say) regular, smallcaps, italics, bold, and bold italic the maximum liability would be in the region of €300.

In the real world, those are pretty low risks even if you were challenged, which is incredibly unlikely. To me the real question here is ethical. If you are not selling the work commercially, I think you are good, in terms of the letter and spirit of the license. If you are selling it, then you might decide it's more consistent with the spirit in which Garamond 8 was released to use a different font -- one which either has a very clear "free as a bird" license, or one you pay for. I would.

4
  • 1
    The licence restricts "commercial organisations" to distribute the program or work based on the Program if payment is involved. Can an author be said to be a commercial organisation?
    – Sveinung
    May 6 '20 at 14:05
  • A good question, and highly fact dependent. But some legal systems would certainly regard an individual as a "commercial organisation" if engaging in commerce, i.e. buying and selling, perhaps even on a rather small scale. May 6 '20 at 17:35
  • If we use the principle of "good faith and fair dealing" as principle for interpreting the licence agreement, in my opinion, there is no legal, and for certain no ethical reasons , for treating printed book and e-books differently. By writing a book, you create a new copyrighted work. The success of the book is probably not depending on the font you are using. By selling the book, you do not exploit the copyright owners copyrighted work (i.e. the font).
    – Sveinung
    May 6 '20 at 18:24
  • Dear @PaulStanley. Thanks for the clarifications. All the answers that I received were very good and, after giving a good amount of thought, I decided to go "with the spirit" in mind, and using EBGaramond as a result.
    – rbrito
    May 10 '20 at 21:10
6

I am not a lawyer, so if you want to get reliable information on this, ask a copyright lawyer in your jurisdiction.

In general, you might have seen that garamondx can be installed using getnonfreefonts in TeXLive. To quote some of their policies:

The minimum requirements are:

  • The font license must allow to use the font without any restriction, even in commercial environments.
  • Distribution of generated files (PDF,PS, ...), containing subsets of the fonts, must be allowed without any restriction. Notes:

So this indicates that the team responsible for getnonfreefonts assumes that embedding subsets of the fonts in your document is most likely allowed.

Of course, you should also remember their note:

Notes

  1. Most font vendors don't allow to distribute documents containing their fonts completely. TeX Live is configured by default to insert only subsets of fonts into generated files. Therefore getnonfreefonts accepts fonts with this restriction.
1
  • Thanks for the note that the authors of getnonfreefonts already did some legal work regarding the fonts. In the mean time, I decided to go with EBGaramond.
    – rbrito
    May 12 '20 at 14:05
6

While I am not a lawyer, the license says, “Distribution of the Program or any work based on the Program by a commercial organization to any third party is prohibited if any payment is made in connection with such distribution” (emphasis added). It then lists a few exceptions, mostly relating to distributing ghostscript on physical media.

If these terms mean what they look like, and hold up, a book that used the free version of URW Garamond—or any subset or modification of it—could not be sold commercially. You could use another version of Garamond that does not have this restriction, such as Adobe Garamond Pro (on which URW Garamond is based) or EB Garamond (which is free to use however you like).

In the comments, it was pointed out that the meaning of “commercial organization” is ambiguous as well.

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  • 2
    If your citation is correct, the prohibition to distribute for payment only applies to "commercial organisation". In my jurisdiction, a single person (author) selling her own books will not qualify as a commercial organisation. She may not even be a commercial enterprise, because the authorship probably is not suited to create profit if she is not a popular author. The licence also allow not-for-profit organisation (for example a political party) to sell pamphlets, text books and other written works that use the URW Garamond.
    – Sveinung
    May 6 '20 at 7:09
  • @Sveinung You should ask a lawyer in your jurisdiction who has relevant experience.
    – Davislor
    May 6 '20 at 13:38
  • Unnecessary, I am a lawyer. What I wantto emphasise is the the legal interpretation of "commercial organisation" is not crystal clear.
    – Sveinung
    May 6 '20 at 13:55
  • @Sveinung Ah! Then thank you for the information.
    – Davislor
    May 6 '20 at 14:07
-1

I am a Brazilian lawyer. As I am not a lawyer specialized on copyrights, much less the Californian copyright laws, I cannot give reliable legal advice. However, I can help shed some light on this, on top of what @Paul-Stanley wrote.

Copyrights are a type of intellectual property rights, and the design of typefaces per se have some protection or not depending of the jurisdiction. On the other hand, the font files from which the typefaces are generated on computer systems are source code which are later translated to program instructions, which per se are copyrighteable and can be licensed for certain uses and/or users.

Licenses are contracts that bind what you, licensee, can do with what the licensor provides.

The Alladin Free Public License have these terms restricting your use of the fonts:

2. Restrictions.

This license is subject to the following restrictions:

(a)  Distribution of the Program or any work based on the Program by a
     commercial organization to any third party is prohibited if any payment
     is made in connection with such distribution, whether directly (as in
     payment for a copy of the Program) or indirectly (as in payment for
     some service related to the Program, or payment for some product or
     service that includes a copy of the Program "without charge"; these are
     only examples, and not an exhaustive enumeration of prohibited
     activities). The following methods of distribution involving payment
     shall not in and of themselves be a violation of this restriction:
     (i)  Posting the Program on a public access information storage and
          retrieval service for which a fee is received for retrieving
          information (such as an on-line service), provided that the fee is
          not content-dependent (i.e., the fee would be the same for
          retrieving the same volume of information consisting of random
          data) and that access to the service and to the Program is
          available independent of any other product or service. An example
          of a service that does not fall under this section is an on-line
          service that is operated by a company and that is only available
          to customers of that company. (This is not an exhaustive
          enumeration.)
     (ii) Distributing the Program on removable computer-readable media,
          provided that the files containing the Program are reproduced
          entirely and verbatim on such media, that all information on such
          media be redistributable for non-commercial purposes without
          charge, and that such media are distributed by themselves (except
          for accompanying documentation) independent of any other product
          or service. Examples of such media include CD-ROM, magnetic tape,
          and optical storage media. (This is not intended to be an
          exhaustive list.) An example of a distribution that does not fall
          under this section is a CD-ROM included in a book or magazine.
          (This is not an exhaustive enumeration.)
(b)  Activities other than copying, distribution and modification of the
     Program are not subject to this License and they are outside its scope.
     Functional use (running) of the Program is not restricted, and any
     output produced through the use of the Program is subject to this
     license only if its contents constitute a work based on the Program
     (independent of having been made by running the Program).

On (a) we have the restriction of not selling works based on the program, i.e., the font files which are source code compiled to program code interpreted by the computer glyphs renderer (FreeType is one example of a computer glyphs renderer, Windows ClearType is another). This restriction is only in place if the selling is from a commercial organization to anyone else (person, non-profit organization, commercial organization, government, etc.). On (a.i) it says that charging a flat rate from the public to access any random content is allowed, but providing the fonts only for a specific group of individuals is not allowed. On (a.ii) it says that selling computer media such as CDs containing the unmodified fonts is allowed only if all information and programs on that media are not charged commercially, which in my opinion allows for selling a CD with only the AFPL fonts (or with any other software or content which is not charged for) for just the price to cover the CD manufacturing and shipping costs.

But on (b) we have that running the program, which as a font is rendering its glyphs (the letter forms) is not restricted and any output (any text rendered with the font) is not restricted as long as the output contents are not a work based on the program (the fonts).

Well, if you print the letters "a" through "z" and make stickers to sell them, it is a work based on the output of the font. If you print the word "Love" and make cups/shirts/stationery with it printed, it is a work based on the output of the font. If you print a sentence such as "World's greatest mom" on a frame and sell it, it will also be a work based on the output of the font. That is because the shapes of the letters matter more thant its contents, i.e., the content meanings are not meaningful so that they could be copyrighted.

However, if you make a movie and use those fonts on the ending credits, create a book and use the fonts to render the text, the content of the works will not be based on the output of the fonts because one could use any other font and the value of the work would not be changed in any significant way: The fonts are not used to build a commercial product, the fonts are the means to deliver the product.

Please note that this does not allow to create an eBook reader with that font to render texts as that would fall directly on (a): The eBook reader has the font as one of its bases and the payment for the font is indirectly tied to the eBook reader as you are charging for making the eBook capable of rendering texts with the font. This does not fall on (a.i) nor on (a.ii), neither falls on (b) because the font is copied, distributed or transformed inside the eBook reader.

What about eBooks, then? It depends on the ebooks' file format.

PDF files allow for the output of the font to be embedded, so only the letter shapes (the fonts outputs) are stored. The font files per se aren't inside the PDF, only the outputs (the glyphs) and how to position them on the rendered PDF.

Also, it is very dificult, if not impossible, to extract the glyphs from the PDF and recreate the original font: One would have to create a PDF with every glyph combination possible so the kerning pairs, the ligatures, the diacritical marks, all the symbols the font can render, and even then if the font file has optical sizes one would need to do that again for each of the font's optical size. Such a PDF that allowed for font extraction and recreation would not be a creative work independent of the font, but a work based on the font. Even a very extensive text corpus could not have all the glyphs the font can render because of the dingbats and symbols, but then it would be a gray area for the license and definitively unethical use of the (license) contract, which is forbidden by law (at least in Brazil).

ODT, DOCX, DOC, EPUB, HTML+CSS files, on the other hand, don't fall on the (b) exception as they allow for the font file to be distributed together with the eBook's contents, even if the font is subsetted to store only the used glyphs and reduce its file size. The font can also be easily extracted from these eBook types, which reinforces the fact the font is distributed with the work: Distribution of the font means the work (eBook) which has an AFPL licensed font inside of it cannot be sold by an organization, only given for free or sold by a person, because of the (a.ii) terms.

Lastly, we must recall that some formats (such as EPUB and HTML+CSS) allows font linking, i.e., the font may be stored on a public server that allows anyone to retrieve the font, even users reading an eBook with the font linked. Such eBooks with linked fonts may be sold, as this method of using and distributing the font do not fall on any restriction on (a), as one can turn on or turn off the server distributing the AFPL font and the eBook would still be readable, even if not with the intended typeface, and the user of the eBook reader is exerting its right to run the program.

If you embedd the font files inside the eBook, you will not be able to sell the eBook without infringing your license rights if you are an organization. And as long as you use the right eBook format to store only the output of the fonts or link the fonts, you are not restricted in any way to sell your eBook.

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