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<blockquote data-quote="pemerton" data-source="post: 8910614" data-attributes="member: 42582">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.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 &quot;remedy&quot; 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.The &quot;viral&quot; 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: &quot;Use&quot; - which includes licensing within its meaning - and &quot;the Open Game Content&quot; (my emphasis).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 &quot;the Open Game Content&quot; 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.</blockquote>

[QUOTE="pemerton, post: 8910614, member: 42582"] 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. 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. 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 "[i]the[/i] Open Game Content" (my emphasis). 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. [/QUOTE]

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