For approval: SIL Open Font License 1.1

[Lawrence Rosen]

> Nicolas Spalinger wrote:
> > What I'm asking it how other FLOSS licenses currently used for fonts
> deal with embedding of fonts in documents?
>  From a legal perspective, it's just like linking code into a larger
> program to create a derivative work. Lots of licenses deal with that.

Bruce Perens suggested:
> 2. When this font, or information derived from this font, is embedded in
> a document, other information in the document that is unrelated to this
> font shall not be considered to be a derivative work of this font. For
> example, embedding this font in a document does not make the text of the
> document a derivative work of this font.

This is audacious. Nothing you can do with a mere font will make Moby Dick
(or any other independent copyrightable work) a derivative work of that
font, regardless of what your license says about linking.

Sometimes open source advocates believe they can revise copyright law by
crafting special words in their licenses. That doesn't work. It merely
confuses developers and users and leads them to believe that open source
licenses can "infect" their own copyrightable works. 

To the extent that a software font can be copyrighted, it can be licensed
with conditions chosen by the licensor. But those license terms can't cause
an independent copyrightable work to come under its ambit. 

/Larry



> -----Original Message-----
> From: Bruce Perens [mailto:bruce at perens.com]
> Sent: Sunday, November 09, 2008 5:19 PM
> To: Nicolas Spalinger
> Cc: License Review
> Subject: Re: For approval: SIL Open Font License 1.1
> 
> Nicolas Spalinger wrote:
> > What I'm asking it how other FLOSS licenses currently used for fonts
> deal with embedding of fonts in documents?
>  From a legal perspective, it's just like linking code into a larger
> program to create a derivative work. Lots of licenses deal with that.
> 
> The other related issue is making aggregate distributions of various
> pieces that are not derivative works of each other. This too is a
> familiar issue in current licenses.
> > OK but this is not how it may be read by many.
> I think David could have explained the part around "might" better by
> adding an example. David's paragraph is probably stronger in its effect
> on a judge than the novice might perceive it on first reading, if that
> novice is confused by "might". Your text is so far going to be weaker in
> its effect on a judge than the novice would perceive it on first reading.
> 
> If we are arguing issues of embedding here, expect to see them argued in
> court too, at great expense to some poor developer. To protect your
> community, your license must be written to settle arguments rather than
> create them as much as possible. So, you really need to walk through
> situations you don't appear to have considered entirely, view them with
> more pessimism than you have - because the judge isn't necessarily
> sympathetic to you, and make sure your license handles them.
> > How about the problem for users that they need to know that their
> > freedom to use their choice of content license may be affected by a
> > designer wishing to drop the exception in a downstream branch?
> Yes, that's true. The fact that you have this license for this version
> doesn't guarantee that all versions are under the same license.
> 
> A similar example with your license is that the copyright holder of the
> font has a right to distribute commercial versions of the same font, or
> a similar one, with different licensing. The copyright holder is not
> compelled to always use your license. And someone else can use the name
> of your font for something entirely different from your font and not
> under your license, unless you trademark the font name, register the
> trademark, and prosecute infringement.
> > How impractical is it to check each time that the particular branch of
> the font software you happen to use still has the exception? [...] IMHO
> too many scenarios to imagine for a clear model for both users and font
> designers....
> >
> So, what you are saying here is that you don't want to compel people to
> distribute source. I approve. Just say something like this, but have a
> lawyer make sure it's the right way to say it:
> 
> 1. This font may be used and distributed without limitation while it is
> embedded in a document.
> 2. When this font, or information derived from this font, is embedded in
> a document, other information in the document that is unrelated to this
> font shall not be considered to be a derivative work of this font. For
> example, embedding this font in a document does not make the text of the
> document a derivative work of this font.
> 
> This gives people unlimited right to embed fonts and use the result
> while not giving them a chance to get out of the license by extracting
> the font.
> 
> > But a @font-face stanza is still referencing an external font.
> Except in email. In that case, everything's a MIME attachment in the
> same document.
> 
>     Thanks
> 
>     Bruce