Goldman Sachs, the global financial firm, has released a new font style, “Goldman Sans,” that is designed for clarity, especially in financial documents. The font comes with a license that tells you what you can and can’t do with it; for example, you can’t use the font to disparage Goldman Sachs.
That’s bullshit. Here’s an example. (Come at me, Goldman, I’m ready for you.)
Obviously, Goldman Sachs does not eat babies.
But there is so much to unpack here. Can they actually tell me what I can say with their font? Was this license presented correctly? And is it enforceable?
Goldman’s license is absurd
Here are a few excerpts.
GOLDMAN SACHS RESTRICTED FONT LICENSE
Goldman Sachs & Co. LLC (“Goldman Sachs”) owns the copyright interests in and to a font style entitled “Goldman Sans” (“Licensed Font”). Goldman Sachs is providing this license of the Licensed Font software (the “License”) free of charge as long as it is used in compliance with this License. . . .
By reproducing, distributing, publicly displaying or otherwise using the Licensed Font Software, you agree to abide by this License. Anyone who uses the Licensed Font Software is a “User,” regardless of how, where, or from whom the Licensed Font Software is obtained. . . .
Permission is hereby granted to the User, a limited, royalty-free, nonexclusive, and revocable license to use, reproduce, and distribute unmodified copies of the Licensed Font Software, subject to the following conditions: . . .
The User may not use the Licensed Font Software to disparage or suggest any affiliation with or endorsement by Goldman Sachs. . . .
If a User distributes a copy of the Licensed Font Software, each copy shall bear an appropriate copyright notice in substantially the form of “© 2020 Goldman Sachs & Co. LLC. All rights reserved.” and a copy of this License. The Licensed Font Software must be distributed entirely under this License and must not be distributed under any other license. The requirement for the Licensed Font Software to remain under this License does not apply to any document created using the Licensed Font Software.
This is the entire agreement with respect to its subject matter. This License may be amended at any time by Goldman Sachs without notice.
I’m not a lawyer; this is not legal advice. But my reading of this is a follows:
- This agreement applies to me if I use the font.
- It applies to you if you read the font. (After all, by downloading this page to read it, you’re “using” the font. If you like to live dangerously, I encourage you to copy my graphic and put it on your own site, Twitter, or anywhere you’d like.)
- I can’t say anything bad about Goldman Sachs. For example, I can’t put, in large print, text that says “Goldman Sachs eats babies.”
- I can’t pretend I work for Goldman Sachs.
- If I include it anything other than a document, I need to include a copyright notice. But what is a document, and what is code? It’s a bit confusing these days.
- Goldman Sachs can change the terms even after I’ve agreed to them.
I’d really like to see them try to enforce this. It seems absurd to me.
They’ve presented the license in a questionable way
You’ve downloaded software and clicked to agree to licenses many times. You know how it works. You don’t read them, but legally, at least you had the opportunity to read them before agreeing.
Here’s what one source on click-through agreements says:
Viewing of Terms before Assent: The User should not have the option of manifesting assent without having been presented with the terms of the proposed agreement, which should either appear automatically or appear when the User clicks on an icon or hyperlink that is clearly labeled and easily found. Place the means of assent at the end of the agreement terms, requiring the User at least to navigate past the terms before assenting.
Three recent cases, an attorney general settlement, and some FTC guidelines demonstrate that a click-through agreement may be vulnerable to attack when the User is not required to at least view the terms of the proposed agreement before assenting to them.
Makes sense: if you don’t see and agree to the terms, how can you be held to them?
I downloaded the font from Goldman’s site and used it. I never clicked to agree to the terms, which were not presented to me as a condition for downloading.
So I think enforcing this agreement will be difficult.
How far can click-through licenses go?
There are terms of this license that make sense. I’m not allowed to modify the font. I’m not allowed to sell it. If I put it into a piece of software, I need to include a copyright notice. That stuff all makes sense.
But the non-disparagement portion seems absurd. I’ve never heard of a font with restrictions on what you can say with it.
I’m actually bound by a nondisparagement clause right now. Severance from a previous job came with such a clause; I had to sign it to get the money. While that annoyed me, at least it made sense — if I wanted my severance payments, I had to make some promises to the company that was paying me.
If Goldman Sachs can require me not to disparage them if I download and use the font, what else could they do?
Could they require me to surrender the password to my bank account upon request?
Could they take the deed to my house?
Could they require me to do an interpretive dance to express my love for the global capitalist system and the financial vampires that are essential to its operation?
Just how far can a click-through license go?
If you’re a lawyer, I’d love to hear your opinion.