12. Attorneys Fees

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12. Attorneys ' Fees

Both OSL and AFL

In any action to enforce the terms of this License or seeking damages relating thereto, the prevailing party shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorneys' fees and costs incurred in connection with such action, including any appeal of such action. This section shall survive the termination of this License.


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:

  • Certain statutes, such as the U.S. Copyright Act, provide that the prevailing party can recover attorneys' fees and costs at the discretion of the court . (17 U.S.C. § 505.)

  • Under contract law, the contract itself can specify that the winner of a lawsuit is entitled to recover his or her attorneys' fees and costs from the loser.

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 Licenses

The 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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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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