Three Ways to Improve Your EULA
An Interview with Joyce Ketterer of Darden Studio
You’ve finished your font. How do you protect your hard work? This week, TypeThursday spoke with Joyce Ketterer, CEO of Darden Studio. We discussed the common issues with End User License Agreements (EULAs) and steps you can take to improve your EULA.
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TypeThursday: Joyce, thanks for being here for TypeThursday.
Joyce Ketterer: Thank you for having me.
TT: It’s really great to have you. So, Joyce, from conversations with you, I know if there’s one thing you really love talking about, it’s EULAs.
Before we get any detail about that, I’d like to learn more about your background. How did you get involved with something so esoteric as end-user license agreements?
Joyce’s Introduction to Fonts
JK: I was working as a bookkeeper in the large accounting department of a New York family-owned real estate development company. My husband is a portrait painter and had a studio in the same building as Josh Darden.
TT: I think I remember that, when I was interning for Josh. Did you come by and ask him about the orchid in the window?
JK: Yes. Josh became fast friends with both me and my husband. Josh needed somebody to do the business side of the company, so he convinced me to quit my job and come work for him. I had done some bookkeeping for a few creative companies and I felt comfortable helping people deal with the realities of running a business, but I had no experience or familiarity with fonts.
TT: You had no knowledge of fonts or typeface designers?
JK: One of the reasons Josh liked me was that when he told me what he did, I figured it out quite quickly. People still need to make fonts, because of changing technology. But, beyond basic politeness, I had no familiarity whatsoever with fonts as an industry.
TT: So, you came from a non-design background and you met Josh Darden who was a type designer and he convinced you to help him out on the business side of his company.
Did you find it very natural for you to convert from a real estate practice in business management to the font industry?
JK: I was just a cog in the wheel pushing paper with hundreds of people in an accounting office. But, aside from nonprofits where there are different accounting standards, bookkeeping’s bookkeeping.
TT: How did you get into license enforcement?
JK: I’ve always been comfortable with legal documents. When there was a legal concern with the company — needing to do a contract for a custom project for example — I just took the lead. We found that every time we had any license enforcement issue that it would highlight some aspect of our EULA where we had a vulnerability or we realized that something was not clear. We’d often been able to talk our way into explaining it with opposing counsel, but we didn’t want to have to do that again.
So, I worked directly with the lawyer to rewrite the EULA. We did one massive rewrite when I had been with the company about two years and another massive rewrite about four years ago. I’ve been with the studio for nine years in February, and we’re undergoing another rewrite now, but this time far less substantial.
TT: To summarize, you moved from bookkeeping responsibilities with Darden Studio to handling more responsibilities of end-user agreements with custom clients and working with business development for Darden Studio.
JK: By that time my title was Studio Manager and I also wound up doing a lot of the sales and customer support. Anytime you’re interacting with customers they will be asking you what are the terms of the license, and it’s impossible not to get ideas about how it could be written for more clarity.
TT: So you were working with sales and customer relationships where describing the licensing terms was something you worked with improving over the course of your time at Darden Studio.
JK: Yes, we kept trying to improve things to make it better for us and our customers.
TT: Excellent. So, from your collective experience working with license agreements, what are some observations or issues you ran into working with customers?
Font EULAs aren’t meant for lawyers to read; they’re meant for users to read — who are probably not going to read them.
Issues with EULAs
JK: You would think the problem is that there are so many different EULAs out there, because the most difficult customer we encounter is somebody who’s bought fonts before and thinks they know how it works every time. That’s why there’s this impulse in the industry, and sometimes from the customers, for a universal EULA. But, the real problem is that legal documents are written for lawyers.
Font EULAs aren’t meant for lawyers to read; they’re meant for users to read — who are probably not going to read them. Users have been trained that they don’t need to read software EULAs since they can’t easily do things that they shouldn’t. However, with fonts, users can do things they aren’t supposed to do, without cracking the software. Users don’t realize this.
TT: So, you’re saying that right off the bat one of the big issues is the communication of EULAs traditionally were legal documents speaking to other lawyers versus understandable to common users to read and understand what’s being said in the document.
Now combine that with certain cultural expectations about how these EULAs are treated in other software companies, they’re not engaged.
JK: Yeah, but that’s not anyone’s fault. I don’t read EULAs when I agree to software. Our lawyer doesn’t read EULAs when she agrees to software. You don’t need to except with fonts. We’re this funny, idiosyncratic industry and users don’t understand us.
A EULA is a system of ideas. It either works or it doesn’t.
For many years, there’s been a movement in the industry for user-friendly EULAs. But, the way that we have done that so far is by making each paragraph comprehensible or with a sidebar explaining the paragraph. At Darden Studio, with our latest version of our EULA, we’re thinking that the paragraphs should interact with each other. Our current EULA’s order of the paragraphs is still a legacy of that original mentality of how lawyers write contracts.
TT: You noticed that the traditional method of how paragraphs were structured was confusing or they were harder to understand?
JK: A EULA is a system of ideas. It either works or it doesn’t. The older method of organizing the ideas would treat these as discrete and separate, where the concepts don’t feed into each other. I think that a font EULA should be a narrative document; a story of what users are allowed to do with a simple, single-defining rule from which everything else follows.
TT: You’re just saying that ideas like contradictions or incongruence between different clauses could be clarified. Would that be a way to explain the difference?
JK: Nobody contradicts themselves intentionally. But when you have a lot of different rules or exceptions, an end-user may think there are contradictions.
A common example is large volume or commercial licenses. Not everyone defines these exactly the same. So, you have to define it and explain what is permitted — and that gets confusing.
We state that all embedded use requires additional licensing. Full stop. Users can infer all non-embedded or rasterized use doesn’t require the additional licensing. That simplifies the whole thing, but also means we’re not requiring an addendum for logos, which some others do. Each foundry needs to weigh narrative simplicity against their business needs.
TT: You said before that you personally believe that EULAs are one of those documents that users should read and that the biggest danger is when a customer has bought one or two fonts and then thinks they have a clear idea that all EULAs are the same.
JK: Ideally, people would read it. But they’re not going to; they’re never going to. What needs to happen rather than saying “users should read EULAs” is that we — as an industry — need to think about how we can we craft our license. Our messaging around our license should seem fair and understandable to the person who is reading it only after they’ve received a lawyer’s letter because they violated the license.
TT: I see. The most interesting point is this perspective about the conversation of a EULA is not up front, but instead is at the back end when there’s been a violation or a misunderstanding.
JK: I’m all about accepting realities; the reality is that the vast majority of the customers who read our EULA are reading it after we’ve told them that they’ve violated. When read by someone upset and scared, we want our EULA to not just be fair but also feel fair.
TT: So, for designers who are an owner of a foundry and reviewing their own EULA, trying to think about how to make it more user-friendly, what should they do?
Three Ways to Improve Your EULA
JK: Try to think of one rule that can define the whole agreement. Sacrifice complexity. Font people are meticulous, accustomed to perfection, and have detailed, engineer kinds of minds; I’m like that too. This is a hard thing to do — complexity is comforting. But, in complexity lies confusion and in confusion lies mistrust.
TT: Great, so cut what you can. What else?
JK: Commit to a governing law clause. This is usually found later in the EULA and says what law jurisdiction the EULA is governed under. It’s surprising to see a lot of foundries don’t want to commit to governing law or are vague about this. We had one instance where, if we didn’t have a strong governing law clause, I don’t think we would have settled the violation. It was a European company that feared having to come to New York.
TT: Interesting. Any final thoughts?
JK: Use a lawyer. A lot of people don’t want to work with a lawyer, but a EULA is still a legal document. Look at other people’s EULAs: see what you like or don’t, and then collaborate with your lawyer. There are a lot of newer foundries out there who’ve asked me could they use our EULA as a template and I’ve said yes; I know other foundries are comfortable sharing that as well.
TT: That’s excellent, Joyce. This has been a really informative conversation. I really thank you for your time. Thank you so much for being here for TypeThursday.
JK: Of course. Thank you!
Want to learn more about EULAs? AtypI’s roundtable about font purchasing features Joyce and is now online!
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