Antitrust in Attention Markets

Abstract

Despite its vital role in the modern marketplace, attention has largely escaped the notice of antitrust institutions and stakeholders. The scattered commentary that does exist is rife with misconceptions and misleading conjecture. One telling example is the widely held-but mistaken-notion that attention-seeking firms like Google, Facebook, Twitter, and the like are "two-sided platforms." Upon closer inspection, these firms are instead revealed to be distributors in a familiar vertical supply-chain structure. As a result, antitrust can avoid the unnecessary confusion and risk of error that would be entailed by two-sided analysis in these markets. This Article describes the fundamentals of competition in markets for attention. It explains how best to define relevant markets, drawing lessons from the growing literature on labor-market concentration levels. It also debunks the popular misconceptions that currently permeate antitrust discourse and have begun to infect antitrust doctrine. Along with the "two-sided market" myth, these also include the mistaken conflation of increased choice with consumer welfare, the unwarranted legal immunity granted to suppliers of zero-price products, and an overemphasis on concerns about "Big Data." The Article also explores the dark side of markets for attention, which are prone to failure, and suggests granting leniency for certain restraints on advertising levels as a partial policy response. It concludes with a call to action: the antitrust enterprise must begin paying more attention to markets for attention.