1. Common Law -as practiced (imo) somewhat imperfectly in the UK: where, in general, you can do whatever you like provided it is reasonable, prudent, and well intentioned; and that it causes no harm or injury to another person or their property.
2.Proscriptive Law -as practiced in Europe: where there is a list of thiungs you can do, and if the thing you want to do is not on that list, you cannot do it…

It is, I believe, impossible for any legitimate court in the world to rule that “reasonable, prudent, well-intentioned behaviour” is criminal – therefore it is NOT criminal, and UK Law is supreme on that basis.

Hence, all we need to do, in any matter of Law or public policy, is to have an honest, open, and informed debate on whether a particular use of (for example) the internet is “reasonable, prudent and well intentioned” or not; and also whether such a use is “reasonably forseeable as likely to cause harm or injury to anyone or their property”.

This debate has no end, as each circumstance is different to the one before; yet, in order to maintain flexibility and currency in issues of Law and public policy, it is essential to continue it for as long as our civilisation continues to exist, and LONG MAY IT CONTINUE!

Please see my web site for more on this subject, and for applications of the material to environmental issues, which are also fundamental to our collective survival on this beautiful Planet Earth. ( :

I am familiar with your work, including the excellent article you mention above — that was a very special issue of the UOLTJ, btw. So, I feel more than flattered with your kind note, your post, and with your being amused with my suggested prize!

My suggestion was indeed intended to be humorous, as I do agree on the importance of the Québec IT framework. It is far more ambitious, for instance, than the acts from other provinces which, on behalf of technological neutrality, defer to the Lieutenant Governors in Council to make regulations that never come; acts that are equally poor, just vaguer.

You are very right that it is important that we pay attention to the additional layers of complexity brought by new technologies. New technologies are as much new as our society is an increasingly new one. And, as the Romans would say, ‘ubi societas, ibi jus’.

All best,

Marcelo

So, I’m perfectly in accordance with the need to have a balance between vagueness and precision but new technologies add a layer of complexity. A complexity inherent to them; a complexity based on the fact that lawyers (and others) don’t measure the importance of the technological revolution yet. New technologies are, by definition, new. And we need some time to be able to assess the deepness of change caused by them.

Thanks Marcello for your post.

http://www.gautrais.com/Indigestion-legislative (in French)

Vincent Gautrais.

People around here tend to think that vagueness in copyright is good (See Michael Spence and Timothy Endicott ‘Vagueness in the Scope of Copyright’ (2005) 121 Law Quarterly Review 657-680).

I tend to think, as Endicott does in his other works on vagueness in law, that though sometimes there is, indeed, value in vagueness — which Endicott sees as a necessary property of law — the role of law in providing us with reasons for action implies that laws cannot be so vague as not to be able to guide human behaviour.

So, the fact of being “deliberately vague”, as you put, is not necessarily a defect of the Directive. But the fact of being too vague, of not providing us with reasons that enable us to understand what it takes to act lawfully, is indeed a defect of the Directive and its implementation.

And yet, though I agree with you that the term “effective”, in itself, is too vague, I will side with folks from the IPKat on this one, if I may. On the one hand, the court was merely referring to the fact that playing a pirated game involves transient infringing reproduction. On the other hand, another similar case had provided further clarification on the matter.

As vagueness, complexity is not a necessary defect of law. It is a necessary fact, which we may strive to find the best way to balance and to cope with. Life is increasingly complex. And so is the law. That is perhaps the biggest challenge of contemporary life, and one which leads many people to stick to post-modernist vagaries.

However, unlike what may be the case of most legal observers, the role of courts is not to bemoan the increasing complexity of contemporary life. The role of courts is to provide us with clarity on matters necessary to author our own lives.

Unfortunately, there doesn’t seem to be a clear way for concerned citizens with such technical qualifications to get to where they can inform such exercises of law and lawmaking.