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12. Attorneys ' Fees
Litigation over software licenses can be expensive. One tactic often used by litigation bullies is to file suit even if they may lose on the merits, because the cost of litigation alone will often force the other party to settle . In the United States (but not in all countries ), each party is typically responsible for paying its own costs and attorneys' fees. Some important exceptions to this rule are:
The OSL/AFL licenses take the second approach. Sometimes people avoid filing suit over a contract if they can't afford to hire an attorney. When attorneys' fees and costs can be recovered, however, some attorneys will offer to take such cases on a contingency basis. An attorneys' fees provision can help small contributors and distributors obtain access to attorneys. For these same reasons, large companies often don't like attorneys' fees provisions. They fear that it tends to encourage litigation and makes them more vulnerable to lawsuit. The OSL/AFL attorneys' fees and costs provision takes the side of the small contributor or distributor as against the large companies. Comparison to Other LicensesThe academic licenses (i.e., BSD, MIT, Apache, and Artistic) and the GPL say nothing about attorneys' fees. The losing party under the MPL is "responsible for costs, including without limitation, court costs and reasonable attorneys' fees and expenses." (MPL section 11.) The CPL does not contain an attorneys' fees provision. This is as one would expect in a license by a large company (e.g., IBM) with a huge budget for attorneys. |
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