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But then we'll have a legal test
Well yes. But what is the issue with that? There are additional complications but that's how the law works.
If I buy a new car and the brakes spontaneously fail due to a manufacturing defect who is responsible?
If I fail to maintain my car and the brakes fail as there are no pads left who is responsible?
Isn't that the point though - that technology (if well done) will be safer than human driving.