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.

Speaking about games is a helpful way to see that social groups can pull down upon themselves quite alternative rule-sets, but the problem of simulated society goes beyond the fact that many virtual worlds are game spaces. Some people seem to think virtual worlds are inherently deceptive. Perhaps that’s so, but if it is so, it might just mean that virtual worlds are inherently artistic.

So, repeating something everyone has seem to accept: the context is crucial.

Marcelo — re your concerns about Josh’s point. I think what you’re getting at is that you can move out of the realm of private contract via property rules, via state regulation, and/or via technological architecture. Josh’s interest in the property route is based on certain assumptions about goals of efficiency and the mechanisms of market ordering.