Attention Capitalism: The Law and Political Economy of Attention Markets.

Abstract

Attention has become one of the most heavily extracted and commodified resources in modern market economies. Firms now supply a wide range of everyday digital products and services in exchange for increasingly vast amounts of attention. A techno-deterministic account portrays this as inevitable, the result of abstract “market forces.” But the ongoing shift of activity into digital attention markets has not occurred in a legal vacuum. This Article is the first to undertake a broad-based survey of how general trade-governing laws have treated attention exchange. These laws, which run the gamut from property and contract to privacy, antitrust, and tax, exhibit what appear to be cross-disciplinary conflicts, internal contradictions, and coverage gaps. But upon closer examination, these are not random. Two common threads exist: law has systematically channeled activity into attention markets by privileging attention-extractive business strategies, and law has concentrated power into corporate attention-extractive firms by permitting consolidation and disempowering individuals. U.S. laws already deeply structure attention markets, and do so in ways that incentivize resource extraction and facilitate domination. Highlighting the contingent role of law in constructing current forms of attention capitalism significantly expands the range of possibility for restructuring these markets. Toward that end, the Article offers not only a robust, multidisciplinary paradigm to help guide such a project, but also a set of concrete policy prescriptions that would pause—and ultimately reverse—the status quo.

Keywords: attention markets, attention merchants, attention intermediaries, advertising, antitrust, privacy, attention and property, property rights in attention

JEL Classification: D00, D01, D03, D11, D21, D43, D60, K00, K11, K12, K21