It is impossible to discuss free fonts or type licensing on the internet without a few uncomfortable facts getting trotted out:

1. Under United States copyright law, it is impossible to copyright the set of letter designs that together comprise a typeface. This is not an accident, but an explicit decision on the part of Congress.
2. There is quite a bit of argument as to whether fonts are data or software. Proponents of the former tend to also be proponents of free software. The large foundries tend to believe the latter, not least because software is clearly protected by copyright law. The US Congress seems to think that even if fonts are programs, they’re still not covered by copyright, although this position has never been validated in court.
3. In fact, pretty much the only way you can protect a font from being copied is by trademarking its name, which helps explain Linotype’s recent rush to patent as many font names as possible.
4. Several respected foundries, including Bitstream, which now runs MyFonts, the most widely-used font store on the Internet, got their starts by pirating other foundries’ designs. Linotype has Helvetica? Bitstream has Swiss 721. Linotype has Univers? Bitstream has Zurich. Linotype has Palatino? Bitstream has Zapf Calligraphic 801.

Why does Congress hate type designers? Why are alphabet designs exempted from copyright protection? The answer is deceptively simple: doing so is not in the public interest. Type is not like photography or illustration: although typefaces connote meanings independent of the texts they embody, their designed forms are used as the bedrock of written communication itself. Allowing typefaces to be copyrighted would make the dissemination and reproduction of documents hugely more difficult. It’s easy to see why the members of Congress, who push around mind-boggling amounts of text, would have a problem with having to pay licensing fees to a foundry every time they issued a new volume of the Congressional Recorder. Since the US Government has always been one of the earliest and most enthusiastic adopters of digital document management, Congress, which is normally quite myopic on technological issues, was quick to point out that digital encodings of fonts are no different from metal type in this regard:

The purpose of this notice is to inform the public that the Copyright Office has decided that digitized representations of typeface designs are not registrable under the Copyright Act because they do not constitute original works of authorship. The digitized representations of typefaces are neither original computer programs (as defined in 17 USC 101), nor original databases, nor any other original work of authorship. Registration will be made for original computer programs written to control the generic digitization process, but registration will not be made for the data that merely represents an electronic depiction of a particular typeface or individual letterforms. If this master computer program includes data that fixes or depicts a particular typeface, typefont, or letterform, the registration application must disclaim copyright in that uncopyrightable data.

It’s not hard to see why this has led to a morass: the legal limbo type designers occupy is not a result of lobbying, or legal lacunæ, or simple oversight. The clear, reasoned intent of Congress is that in order to preserve and encourage free speech in the United States, the law will not protect type designers from piracy. Essentially, any and all foundry EULAs are worth no more than the (generally virtual) paper on which they’re written. Legally speaking, there’s no reason why I can’t snag a copy of Adobe’s Cronos Pro Opticals off alt.binaries.fonts, change the name to AAXZ Elder Titan 261 Premier, and start selling them as my own design.

In fact, there are many recorded instances of this happening, and the curious (and confusing) result has almost unanimously been that the font pirates have either settled out of court or been defeated. While Bitstream, and URW, and Monotype have all been busted by the type community for flagrantly plagiarizing type designs, they got away with it. However, when sleazy font pirate Scott Eric King started selling CDs with hundreds of pirated designs through his company SSi, he got smacked down by the courts. Even though he was straight up copying existing fonts from well-known foundries, he did go to the trouble of opening up the font files and subtly tweaking the fonts’ control points. That wasn’t enough to protect him from judgment, which is kind of confusing given the explicit wishes of Congress, stated above. This can probably be explained by him not having a money to appeal the case up through the legal system; even so, it’s hard to say what would have happened (and now you have some sense of why).

Recently, Adobe has started advocating the use of another option: the design patent. Design patents are granted (freely and willy-nilly, like all American patents these days) on the bases of novelty and ornamentality. This appears to be an attempt to translate the familiar patent law conventions of novelty and utility into the design sphere. I have no idea what the criteria are for establishing novelty for a typeface; in my opinion they’d have to be pretty weak, given that any typeface that’s going to be sufficiently novel to escape claims of prior art by an educated layman is probably going to be illegible. How many text faces of the last 30 years are novel? Is Adobe’s Minion novel? The question is important, because Minion holds a design patent.

The good and bad news, depending on your perspective, is that design patents only last for 14 years, after which the patented font is as up for grabs as any other typeface. They’re a much weaker form of protection than copyright (which lasts until the death of the creator plus a MILLION BILLION YEARS, if Disney has their way), and to my knowledge have never been tested in court. Still, this does add some heft back to EULAs, if that’s what you’re looking for. I don’t know how widespread design patents are outside Adobe. I imagine they’ll only become more common as time goes by.

We find ourselves in a situation where straight-up piracy of fonts is debatably illegal but certainly unethical and immoral. TypeRight was founded to fight font piracy, both of designs and font files, and it’s important to note that TypeRight was a grassroots effort and not some weird SPA front (although SPA has worked with TypeRight members to chase after pirates). Most people stop thinking as soon as they hear that what they want to do is illegal, which makes fighting piracy outside of the courts a near-unwinnable battle.

I dredge up all this confusing unpleasantness because the entertaining free font blog Fontleech posted a discussion topic that caused the whole discussion to be rehashed again. The resulting discussion was lively and interesting, but like most internet discussions, disappeared off into the weeds after a while. Any time Matthew Carter is accused of being a font pirate extraordinaire, we’re in some strange terrain.

However, the discussion did really force me to think about my own stance on the issue. As a software engineer, I’m opposed to the notion of software patents, which tend to be used (largely by large software corporations and holders of “submarine patents” who don’t actually produce software) as big sticks to beat on independent programmers (or at least extort money out of them). Assuming I have the talent and perseverance to finish some of my type designs, I’d love to make some money off them, but I don’t want to do that at the cost of propping up a corrupt system.

This just goes to show the truth of Hrant Papazian’s admonition, delivered at a thoroughly entertaining lecture to aspiring type designers earlier this week: “Oh yeah, I forgot to mention this earlier: the thing about type design is that there’s no money in it.” He went on to say that you have to really love type to be a type designer, because it ain’t never gonna make you rich. Given that there’s really nothing to stop unscrupulous foundries from swooping in and taking all your designs, even if your designs are popular, they’re not guaranteed to make you money. Hrant suggested that the way to make money as a type designer is commissioned typefaces, and that seems about right to me.

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