Law and software agents: Are they “Agents” by the way?

Abstract

Using intelligent software agents in the world of e-commerce may give rise to many difficulties especially with regard to the validity of agent-based contracts and the attribution of liability for the actions of such agents. This paper thus critically examines the main approaches that have been advanced to deal with software agents, and proposes the gradual approach as a way of overcoming the difficulties of such agents by adopting different standards of responsibility depending whether the action is done autonomously by an unattended software, or whether it is done automatically by an attended software. Throughout this paper, it is argued that the introduction of “one size” regulation without sufficient consideration of the nature of software agents or the environments in which they communicate might lead to a divorce between the legal theory and technological practice. It is also concluded that it is incorrect to deal with software agents as if they were either legal persons or nothing without in any way accounting for the fact that there are various kinds of such agents endowed with different levels of autonomy, mobility, intelligence, and sophistication. However, this paper is not intended to provide the final answer to all problematic questions posed by the emergence of intelligent software agents, but is designed to provide some kind of temporary relief until such agents reach a more reliable and autonomous level whereby law begins to regard them, rather than their users, as the source of the relevant action.