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Am I an Algorithm or a Product? When Products Liability Should Apply to Algorithmic Decision-Makers

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Document pages: 68 pages

Abstract: Over the years mankind has come to rely increasingly on machines. Technology is ever advancing, and in addition to relinquishing physical and mere computational tasks to machines, algorithms self-learning abilities now enable us to entrust machines with professional decisions, for instance, in the fields of law, medicine and accounting. A growing number of scholars and entities now acknowledge that whenever certain "sophisticated " or "autonomous " decision-making systems cause damage, they should no longer be subject to products liability but deserve different treatment from their "traditional " predecessors. What is it that separates "traditional " algorithms and machines that for decades have been subject to traditional product liability legal framework from what I would call "thinking algorithms, " that seem to warrant their own custom-made treatment? Why have "auto-pilots, " for example, been traditionally treated as "products, " while autonomous vehicles are suddenly perceived as a more "human-like " system that requires different treatment? Where is the line between machines drawn? Scholars who touch on this question, have generally referred to the system s level of autonomy as a classifier between traditional products and systems incompatible with products liability laws (whether autonomy was mentioned expressly, or reflected in the specific questions posed). This article, however, argues that a classifier based on autonomy level is not a good one, given its excessive complexity, the vague classification process it dictates, the inconsistent results it might lead to, and the fact said results mainly shed light on the system s level of autonomy, but not on its compatibility with products liability laws. This article therefore proposes a new approach to distinguishing traditional products from "thinking algorithms " for the determining whether products liability should apply. Instead of examining the vague concept of "autonomy, " the article analyzes the system s specific features and examines whether they promote or hinder the rationales behind the products liability legal framework. The article thus offers a novel, practical method for decision-makers wanting to decide when products liability should continue to apply to "sophisticated " systems and when it should not.

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