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Human attention, valuable and limited in supply, is a resource. It has become commonplace, especially in the media and technology industries, to speak of an "attention economy" and of competition in "attention markets.” There is even an attentional currency, the "basic attention token," which purports to serve as a medium of exchange for user attention. Firms like Facebook and Google, which have emerged as two of the most important firms in the global economy, depend nearly exclusively on attention markets as a business model.

Yet despite the well-recognized commercial importance of attention markets, antitrust and consumer protection authorities have struggled when they encounter the attention economy. Antitrust agencies, tasked with assessing the effects of mergers and controlling anticompetitive behavior, seem to lack a way to understand the market dynamics when the firms offer "free products" that are actually competing for attention. Meanwhile, those tasked with consumer protection have no good paradigm for dealing with attentional intrusions stemming from non-consensual, intrusive advertising or debates over the use of telephones on airlines.

This essay aims to provide a legal and economic analysis to help face the challenges here described. In other work, I have described the rise and spread of the "attention industry," the businesses that depend on the resale of attention, a global industry with an annual revenue of approximately $500 billion. This essay builds on that work by focusing on the economic decisions implicit in "Attention Brokerage." As described here, brokerage is the resale of human attention. It is to attract attention by offering something to the public (entertainment, news, free services, and so on), and then reselling that attention to advertisers for cash. Examples of pure Attention Brokers include social media companies like Instagram and Facebook, search engines like Google or Bing, ad-supported publishers like Buzzfeed or AM News, and some television channels like CBS or NBC. The Brokers' activities are critical to the operation of attention markets, for the business model creates much of the competition for attention that this essay describes.


Antitrust and Trade Regulation | Communications Law | Consumer Protection Law | Law | Law and Economics


©2019. Published in Antitrust Law Journal, Vol. 82, No. 3, 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.