Christoph B. Graber
This chapter is about the relationship between AI technology and society in fundamental rights theory. In fundamental rights doctrine, the relationship between technology and society is seldom reflected. Legal practitioners tend to view technology as a black box. For scholars of science and technology studies (STS), similarly, the law is a closed book. Such reductionist or compartmentalised thinking in the law and social sciences must be overcome if a conceptualisation of AI technology in fundamental rights theory is to be successful. The chapter offers a perspective on these issues that is based on a re-interpretation of affordance theory (as originally framed in STS). First, the question ‘how do affordances come into a technology?’ is answered from the viewpoint of Bryan Pfaffenberger’s ‘technological drama’. Accordingly, the affordances (the possibilities and constraints of a technology) are shaped in a dialogue between a ‘design constituency’ and an ‘impact constituency’ in which the technology’s materiality and sociality are co-determined. Second, this theory is applied to study the co-determination of AI technology. Finally affordance theory is combined with socio-legal theorising that understands fundamental rights as social institutions bundling normative expectations about individual and social autonomies. How do normative expectations about the affordances of AI technology emerge and how are they constitutionalised?
Christoph B Graber
With tethered technologies permitting the monitoring of consumers’ use of copyrighted works and private copyright enforcement, IP protected digital works are increasingly disseminated solely through access-based schemes. This article reviews the actual and potential implications of this development in light of consumer autonomies and copyright doctrine. It specifically evaluates the courts’ opposing views in the European Union and the United States on the matter, drawing attention to the need to radically rethink the application of the first sale/exhaustion principle for the distribution of digital content, and proposes a novel approach balancing individual and social interests at a broader scale.