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>This is just a flowery way of granting unchecked power to prosecutors under the theory that they'll use it in good faith. If the law is ambiguous and the prose

>This is just a flowery way of granting unchecked power to prosecutors under the theory that they'll use it in good faith. If the law is ambiguous and the prosecutor is allowed to choose an adverse interpretation in order to ensnare "bad actors" then they can really use it to ensnare anyone for anything, because everyone is technically in violation under the strict interpretation so all they have to do is decide who they don't like and charge them with the violation that everyone is technically committing No, it's not. In the U.S. law system, the prosecutor does not determine the boundary of what a "creative work" is. That is determined by CASE LAW, which the judge applies based upon the facts of the case. The notion that statutes can, without ambiguity, capture all that they need to is defied by the entirety of legal history.

alharith 7y ago
But what you are saying here counters what OP is replying to. "Fuzziness" has no place in a system of law. There should be a way to trace back, as you said with case law, to find an unambiguous decision. If not, the law needs to be clarified, not left fuzzy.
- ardy42 7y ago
  > But what you are saying here counters what OP is replying to. "Fuzziness" has no place in a system of law. There should be a way to trace back, as you said with case law, to find an unambiguous decision. If not, the law needs to be clarified, not left fuzzy. I don't think you have a very good understanding of the US legal system. Caselaw consists of interpretations of laws made after (sometimes long after) those laws came into force. It's a reflection of the inherent ambiguity and fuzziness in any body of law. Law isn't like computer code. While there may be some philosophical appeal to the idea of a law code that's unambiguous and requires no judgement to interpret or apply, such a goal is actually impractical and undesirable.
  - alharith 7y ago
    I understand the US Legal system very well. I think enough people have broken down your fuzziness point as moot at this point, but you downvote and cling to it. I know it's tough being wrong on the internet, but just the L on this one.
- freejazz 7y ago
  What OP was replying to is not "fuzzy". He is calling it "fuzzy" without substantiating why or how. What I am describing is the system he is claiming is fuzzy. He's basically saying "the US law is fuzzy because there are lawyers, whereas in other systems there are only judges" which really fails to understand the different systems of law in two key ways. 1) As I described, the US system is not actually fuzzy. Pretending there is a legal system that only "just applies the law" that does not have a 'reasonableness' layer is factually incorrect. It is also factually incorrect to say that the prosecutor determines whether or not the law is violated. It's obviously not true and it reflects a tremendous misunderstanding of the adversarial legal system. In this system, the differing sides argue for their interpretation and application of the law to the facts of the case. The judge, in hearing their arguments, makes determinations along a set of guidelines as to HOW THE LAW APPLIES TO THE FACTS. That is to say, the complete opposite of what this OP described. In the US system, the JUDGES APPLY THE LAW. 2) In non-adversarial systems, what the judge does is more than "just apply the law". The judge performs the roles of the adversarial sides, just within the judge's head. The judge determines, based upon his own belief (and I'm sure, some guidelines) what either side would argue, and from there, applies the law to the facts of the case to determine outcomes. This is why it is factually incorrect to suggest this system is in any way more or less fuzzy. If a system simply just "applied the law" without any regard to the debate of the factual circumstances of the case, there would be no need for JUDGMENT.
  - gnopgnip 7y ago
    France does not have common law with the notion of case law setting a precedent, they have civil law.
    - freejazz 7y ago
      Right, that's the #2 scenario where all the decision-making is done by the judge. The judge doesn't check off a list. He reads the statute, considers the facts presented, and determines how best to achieve the goal of the statute. He just doesn't refer to previous cases, and considers each case uniquely. But precedent in the common law is only as binding as the facts and argumentation convinces. So that's why I'm saying the differences between these two systems are more mechanical than they are substantively different approaches where one is reasonable and the other isn't. Neither system chains themselves to the rote definition of words or statutes. In both legal systems, reasonability and judgment are used to ensure that the law is being applied appropriately.
AnthonyMouse 7y ago
> No, it's not. In the U.S. law system, the prosecutor does not determine the boundary of what a "creative work" is. That is determined by CASE LAW, which the judge applies based upon the facts of the case. What does this change from the perspective of the person who is trying to comply with the law? You don't know what the law makes illegal but if you do something the government doesn't like then the government will decide whether it's illegal after the fact and punish you for doing it even though they never made it clear that it was actually illegal. > The notion that statutes can, without ambiguity, capture all that they need to is defied by the entirety of legal history. This is still not an argument for purposeful ambiguity. The fact that absolute perfection is impossible is a lame excuse for not even trying.
- freejazz 7y ago
  >What does this change from the perspective of the person who is trying to comply with the law? You don't know what the law makes illegal but if you do something the government doesn't like then the government will decide whether it's illegal after the fact and punish you for doing it even though they never made it clear that it was actually illegal. Yeah, for things that are not readily apparent, you might need a lawyer to help you understand if your conduct is illegal. Have you looked up the statutory definitions for what a work is in copyright? For like 99% of people and businesses it is clear. What do you propose as an alternative? This is a pretty absurd conversation because you seem to not acknowledge the reasons for WHY the law functions this way and just posit a world that doesn't have the problems the real world does. >This is still not an argument for purposeful ambiguity. The fact that absolute perfection is impossible is a lame excuse for not even trying. Feel free to describe a better system. It's gotta be real though, you can't just say "a system where everything is already prescribed"... that's just fantasy
  - AnthonyMouse 7y ago
    > Yeah, for things that are not readily apparent, you might need a lawyer to help you understand if your conduct is illegal. You're just talking about case law. That isn't actually any different. If something is made unambiguous by case law then it is unambiguous. What I'm talking about are laws that a lawyer cannot tell you with a high degree of certainty what the outcome would be in court, because it was made purposely fuzzy specifically to allow the law to be retroactively interpreted adversely against anyone who draws the ire of the government. > Feel free to describe a better system. Here you go: In matters of statutory construction when the government is the prosecutor/regulator, the parties submit their briefs, they're read by 9 independent judges who are all told to construe the statute against the government if it's ambiguous, the judges don't get to talk to each other, the defense gets to choose which judge's interpretation to use, and that interpretation becomes precedent until the legislature changes it by statute. The government's only appeal is to the legislature (which then only applies to future cases). Now if there is an ambiguity, it is likely to actually be construed against the government, so the government has an incentive to resolve it ahead of time whenever reasonably possible. When that isn't possible, it goes in favor of the defense in the original case and then the legislature has the opportunity to clarify what they want for future cases by passing new legislation.

alharith 7y ago

But what you are saying here counters what OP is replying to. "Fuzziness" has no place in a system of law. There should be a way to trace back, as you said with case law, to find an unambiguous decision. If not, the law needs to be clarified, not left fuzzy.

ardy42 7y ago
> But what you are saying here counters what OP is replying to. "Fuzziness" has no place in a system of law. There should be a way to trace back, as you said with case law, to find an unambiguous decision. If not, the law needs to be clarified, not left fuzzy. I don't think you have a very good understanding of the US legal system. Caselaw consists of interpretations of laws made after (sometimes long after) those laws came into force. It's a reflection of the inherent ambiguity and fuzziness in any body of law. Law isn't like computer code. While there may be some philosophical appeal to the idea of a law code that's unambiguous and requires no judgement to interpret or apply, such a goal is actually impractical and undesirable.
- alharith 7y ago
  I understand the US Legal system very well. I think enough people have broken down your fuzziness point as moot at this point, but you downvote and cling to it. I know it's tough being wrong on the internet, but just the L on this one.
freejazz 7y ago
What OP was replying to is not "fuzzy". He is calling it "fuzzy" without substantiating why or how. What I am describing is the system he is claiming is fuzzy. He's basically saying "the US law is fuzzy because there are lawyers, whereas in other systems there are only judges" which really fails to understand the different systems of law in two key ways. 1) As I described, the US system is not actually fuzzy. Pretending there is a legal system that only "just applies the law" that does not have a 'reasonableness' layer is factually incorrect. It is also factually incorrect to say that the prosecutor determines whether or not the law is violated. It's obviously not true and it reflects a tremendous misunderstanding of the adversarial legal system. In this system, the differing sides argue for their interpretation and application of the law to the facts of the case. The judge, in hearing their arguments, makes determinations along a set of guidelines as to HOW THE LAW APPLIES TO THE FACTS. That is to say, the complete opposite of what this OP described. In the US system, the JUDGES APPLY THE LAW. 2) In non-adversarial systems, what the judge does is more than "just apply the law". The judge performs the roles of the adversarial sides, just within the judge's head. The judge determines, based upon his own belief (and I'm sure, some guidelines) what either side would argue, and from there, applies the law to the facts of the case to determine outcomes. This is why it is factually incorrect to suggest this system is in any way more or less fuzzy. If a system simply just "applied the law" without any regard to the debate of the factual circumstances of the case, there would be no need for JUDGMENT.
- gnopgnip 7y ago
  France does not have common law with the notion of case law setting a precedent, they have civil law.
  - freejazz 7y ago
    Right, that's the #2 scenario where all the decision-making is done by the judge. The judge doesn't check off a list. He reads the statute, considers the facts presented, and determines how best to achieve the goal of the statute. He just doesn't refer to previous cases, and considers each case uniquely. But precedent in the common law is only as binding as the facts and argumentation convinces. So that's why I'm saying the differences between these two systems are more mechanical than they are substantively different approaches where one is reasonable and the other isn't. Neither system chains themselves to the rote definition of words or statutes. In both legal systems, reasonability and judgment are used to ensure that the law is being applied appropriately.

AnthonyMouse 7y ago

> No, it's not. In the U.S. law system, the prosecutor does not determine the boundary of what a "creative work" is. That is determined by CASE LAW, which the judge applies based upon the facts of the case. What does this change from the perspective of the person who is trying to comply with the law? You don't know what the law makes illegal but if you do something the government doesn't like then the government will decide whether it's illegal after the fact and punish you for doing it even though they never made it clear that it was actually illegal. > The notion that statutes can, without ambiguity, capture all that they need to is defied by the entirety of legal history. This is still not an argument for purposeful ambiguity. The fact that absolute perfection is impossible is a lame excuse for not even trying.

freejazz 7y ago
>What does this change from the perspective of the person who is trying to comply with the law? You don't know what the law makes illegal but if you do something the government doesn't like then the government will decide whether it's illegal after the fact and punish you for doing it even though they never made it clear that it was actually illegal. Yeah, for things that are not readily apparent, you might need a lawyer to help you understand if your conduct is illegal. Have you looked up the statutory definitions for what a work is in copyright? For like 99% of people and businesses it is clear. What do you propose as an alternative? This is a pretty absurd conversation because you seem to not acknowledge the reasons for WHY the law functions this way and just posit a world that doesn't have the problems the real world does. >This is still not an argument for purposeful ambiguity. The fact that absolute perfection is impossible is a lame excuse for not even trying. Feel free to describe a better system. It's gotta be real though, you can't just say "a system where everything is already prescribed"... that's just fantasy
- AnthonyMouse 7y ago
  > Yeah, for things that are not readily apparent, you might need a lawyer to help you understand if your conduct is illegal. You're just talking about case law. That isn't actually any different. If something is made unambiguous by case law then it is unambiguous. What I'm talking about are laws that a lawyer cannot tell you with a high degree of certainty what the outcome would be in court, because it was made purposely fuzzy specifically to allow the law to be retroactively interpreted adversely against anyone who draws the ire of the government. > Feel free to describe a better system. Here you go: In matters of statutory construction when the government is the prosecutor/regulator, the parties submit their briefs, they're read by 9 independent judges who are all told to construe the statute against the government if it's ambiguous, the judges don't get to talk to each other, the defense gets to choose which judge's interpretation to use, and that interpretation becomes precedent until the legislature changes it by statute. The government's only appeal is to the legislature (which then only applies to future cases). Now if there is an ambiguity, it is likely to actually be construed against the government, so the government has an incentive to resolve it ahead of time whenever reasonably possible. When that isn't possible, it goes in favor of the defense in the original case and then the legislature has the opportunity to clarify what they want for future cases by passing new legislation.