Setting many of the details to one side - the typical remedy for misrepresentation in contract formation is rescission of the contract. In the current situation, non-WotC parties to the OGL want to hold WotC to the contract, not rescind it.One issue I haven't seen touched upon is the issue of contractual misrepresentation? I just stumbled upon the concept online, and it might seem relevant?
The contract I believe have been demonsratably been presented as a safe fundation for open source style investments. If this is found to be false due to wizards undisclosed ability to retroactively close down certain material presented as "open", that appear to be matching common definitions of misrepresentation?
The typical remedy for misrepresentation or fraud in the context of post-formation dealings will be damages (whether in negligence, fraud or breach of contract, depending on context and details). Again, non-Wotc parties to the OGL don't want damages from WotC - they want to hold WotC to the contract.
The significance of WotC's post-contractual remarks made on their FAQ etc have been well-discussed in this thread: they may be relevant to interpretation, and they may generate arguments based on estoppel and allied doctrines. And if WotC are now purporting to exercise powers that, on the best construction of the contract in light of their past conduct they don't actually possess, then the "remedy" for that is for parties to defend themselves when sued by pleading the contract. Alleging misrepresentation by WotC doesn't seem to add anything to that.
I don't know. I've asked this in another thread, but to date no one has answered it.Assuming well established open source schemes do not have this withdrawal of offer issue - what mechanism do they have to prevent that? Is it reliance on this assumption, or might there be something else, like formulation in a way that do not place it into the domain of contract law?
I might have missed some crucial argumentation. As I pictured that would rely upon the conflation that knowledgeable posters have warned us to avoid, i.e. the owner can suspend their offer of any future licenses, but doing so does not terminate licenses that already exist (and particularly not those between second and third-parties.) Hence my theory that the virality of 1.0 has (potentially) done the necessary work already.
The "viral" character of the OGL v 1.0/1.0a depends upon the content of the grant of permission under section 4. Section 4 has two key terms: "Use" - which includes licensing within its meaning - and "the Open Game Content" (my emphasis).Caveating that @pemerton is the best person to speak for their arguments, to my reading they are implying that under the more plausible interpretation, OGL1.0 licences / sub-licenses / sub-sub-licences (if such exist) that are already in place will withstand Hasbro deciding to no longer offer any further such licences.
Speaking purely in terms of textual interpretation, and without having regard to WotC's other representations and conduct, I think the reference of the phrase "the Open Game Content" is not straightforward, because of the way it turns on the interplay with section 2 and 3; and that one of the available constructions runs WotC's way. I don't assert that that is the best construction. But if I was a 3PP wanting to stand on my contractual rights I would not be relying solely on textual arguments: I would be relying heavily on WotC's other representations and conduct, as per my remarks above in this post.