[Atropos]

The legal system is not applied by computers, but by humans. That's why laws don't have to be written in a way that pre-defines every possible edge case - you can let judges make a common sense judgment call about it later.

For example you could have a rule that anybody who makes a work available "in good faith" in the belief that it is a scientific paper out of copyright is not liable to damages. Then all edge cases would be cleared in the context of take-down requests, which is not very high stakes...

[NhanH]

> The legal system is not applied by computers, but by humans. That's why laws don't have to be written in a way that pre-defines every possible edge case - you can let judges make a common sense judgment call about it later.

That's a very US-centric (or to be precise, Anglo-Saxon centric) statement. The vast majority of countries in the world uses a civil-law system instead of common-law system. In civil-law system, codes and statutes are designed and supposed to cover all edge cases and eventualities

[Atropos]

I'm a lawyer in a civil-law system and I would not agree with this description. Maybe one can say that in theory civil law systems have more legislation and are less comfortable with "judge made law", leaving the filling of gaps to the legislative powers. But it would be impossible to write laws that cover all cases, therefore every civil law system relies on general principles.

For example, the whole German tort law is basically: "A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this."

When is a behavior negligent? What falls under the "another right of another person" (your reputation, your privacy?)? Does the owner of a highway-restaurant get damages if a negligent chemicals transport company does not secure its load properly, leading to dangerous chemicals spilled on the highway, leading to closure of the highway for a week = meaning no customers for a week? [damage to property???] These are all questions that are totally up for a judge to decide.

Classifying if a work is a scientific or a non-scientific publication - or at least if somebody might have classified it as scientific in good faith - is nothing that a civil law jurisdiction can't deal with. Other areas of law have much harder conceptual distinctions. (E.G. Are parent and subsidiary company having an "at arms length" relationship as required in transfer pricing tax law?)

[NhanH]

Right, I don't actually disagree with your statement in principle, it was more of a nit-picking kind of thing. Most law system would not be cleanly civil or common law, but a gradient between the two. I guess I was thinking it being more of an issue in country with bad judiciary system.