Panel 3 – Media and Communication Systems for Attention
Capture
This panel will address how different fields, from media
studies to economics, think about attention, how it is captured and valued. Do
different types of media (political news, advertisements, sexual content, etc.)
produce different attentional patterns? How is attention captured through
technology? What issues does attention distortion raise?
David Simon, Associate Professor of Law, Northeastern
University (moderator)
Nick Seaver, Associate Professor of Anthropology, Tufts
University
Attention as a method of control—a name for how we can be
disciplined/enrolled into projects of bosses or other people who want to
control us. If we thought of attention that way we’d change how we regulated
and valued attention.
Mouse jiggler: one form of resistance to this type of
discipline. Bosses use bossware to surveil whether you’re “working.”
That also reveals just how lousy our techniques for
detecting attention are. Very hard to know! We use “impressions” or sales as
proxies. Self-driving cars use torque on the steering wheel to check whether
you’re prepared to take over—but that means that you can just use a weight to “pay
attention” for you. Even the most safety-focused forms of “attention” have been
turned back into discipline from above.
Bridget Todd, Fellow at Berkman Klein Center
Podcasting: what makes it different? Identity mediates our experience
of digital technologies. Podcasting is inherently a medium for people who like
to talk. Opposite of short-form content, with some exceptions. Deep dives into
complicated/nuanced issues. [Books?] Requires attention!
Asking “who benefits from this attention?”: conflict
entrepreneurs. They effectively hijacked conversations around identity. Our
current media landscape is tailor-made for conflict entrepreneurs to do this.
It makes us more divided, suspicious, lonelier, and less curious. Focuses
attention on differences among individuals, values, identities. Bite-size
journalism makes people more black-and-white in their thinking, less nuanced. What
can we do? More exposure to complicated narratives: a man who waited for 6
hours to speak in support of an anti-trans bill in Wisconsin, and listened to
the advocates speaking about their lives, and changed his mind.
Rebecca Tushnet, Professor of Law, Harvard University
Maybe by accident the flip side of Professor Seaver’s talk. My
fields are IP and advertising: and what I suggest those fields tell us is that attention
can be owned, but when attention is not an object of ownership, it is not regulated.
We value ownership of attention but not its other possible characteristics. One
thing that means is that we often are unable to measure the thing that we say
is ownable. A well-known quote, attributed to retail mogul John Wanamaker,
says: “Half the money I spend on advertising is wasted; the trouble is I don’t
know which half.”
I also have something of a side note, or a cautionary one:
courts often believe things about human cognition that are simply wrong, and it
is hard to make them change their minds because they often consider their
beliefs about cognition to be common sense. An example from copyright:
In an important copyright case, Judge Learned Hand wrote
that “everything registers somewhere in our memories, and no one can tell what
may evoke it” – Learned Hand was a great judge but a terrible neuroscientist:
as it turns out, we do not process a lot of sensory input that we get, and it
is never encoded in memory, not long-term or short-term. But courts still rely
on this principle to hold that musicians may have engaged in subconscious
copying without knowing about it, and it is very hard to get a court to reject
a factual assertion made by Learned Hand.
Lots of similar assertions about how consumers think in TM.
More relevantly to attention in particular, copyright’s fair
use test distinguishes between unauthorized uses that are justified and
unauthorized uses that use another’s work “merely . . . to get attention or to
avoid the drudgery in working up something fresh” which are less likely to be
fair—so one of the things the copyright owner owns by default is the right to
your attention based on their expression.
Similarly, TM: TM focuses on the ability of a mark to
identify the source of a product—a mark is communicative, and a good mark
captures attention. The ability to be recognized and noticed is at the core of
what a good trademark is! That means that unauthorized attention-getting uses
might be infringing. Initial interest confusion is a concept that explicitly
relies on the idea that a trademark might get a consumer’s attention and then the
seller might sell them something else, and that’s infringing even though no
sale is ever completed as the result of confusion. At the same time, we distinguish
between initial interest confusion and mere distraction/comparison—it can be
legitimate to catch the consumer’s eye by, e.g., comparative advertising.
Likewise, trademark’s protections for truthful uses can be
limited if the user uses “too much” of the mark—relies too heavily on its
attention-getting power, as courts have ruled in cases like a former Playboy
playmate’s website that repeated that she was Playmate of the Year too many
times, or a luxury resale website emphasizing Chanel products too heavily in
its advertising.
Dilution: making it harder for a mark to stand out/capture
your attention—Delta is diluted versus Xerox which is not: no real empirical
evidence this does harm to TM owners but the sense of unfairness suffices to
get courts to condemn what they see as free riding
Outside of ownership, my fields don’t have ways to think about
attentional harms
Advertising law: getting attention is unregulable because
only falsifiable claims can be evaluated—even advertising systems that purportedly
require factuality don’t generally regulate attention-grabbing in general,
especially in the visual or oral realm.
Regulation of sponsorships and endorsements are an example:
FTC is focused on metadata disclosure—disclosure that content is sponsored—as well
as on whether endorsers make claims that need substantiation. The thought is
that audiences can calibrate their attention or the credibility they give to
the claims once there’s disclosure—but it’s important to understand the
underlying dynamic which is that sponsored content is something that audiences
have a harder time tuning out—it’s not like a banner ad that you can just have
attentional blindness towards.
Indeed, advertising is often seen as a tax on audiences or the
price they pay for other content, even though availability of information is
necessary for an efficient market. James Kellner, the chairman and CEO of
Turner Broadcasting, stated that people who skip TV commercials are violating
their contract with TV companies who provide ad-supported programming. He grudgingly
accepted that “there’s a certain amount of tolerance for going to the
bathroom.”
Attention is owed—but the givers of attention are not the
ones who are in control. That assumption or expectation that advertising is
hostile to its audiences’ interests, perhaps perversely, itself gives some
credibility to the idea that most attempts to capture audience attention are legitimate—we
expect the audiences to be running away, so we also expect the advertisers to
be lunging forward to catch the audiences in any way they can.
Emily West, Professor of Communication, UMass
Attention, inattention and convenience: from book Buy
Now: How Amazon Branded Convenience and Normalized Monopoly. Inattention
allows us to draw attention to things that we find more rewarding; can distract
us from consolidation of corporate power. Production of user inattention is
strategic and purposeful. If content was the bait for ad-supported media, convenience
is the bait in the digital economy for greater platform enclosure of time,
spending, attention. Ease at the center of any interaction/exchange;
facilitates inattention to multiple steps, research, complexity—a structure of
feeling and a logistical form. Decreases discernment and price sensitivity—decisional
muscles get flabby. Get out of the habit of going to the store, the news, etc.—these
things come to us. Google’s AI answers remove even the need to consider the
search results. Offering itself as authoritative source, but it’s a digital ad
company and not a library.
Simon: Different visions: Attention & control; attention
as an asset or point of conflict; attention as ownership/ownership of
attention; attention as convenience. TM law allocates control over
attention-getting to make it easier to find stuff. Attention can also be an
asset to employers. And to sellers who offer convenience (or maybe your desire
not to pay much attention is the asset there).
Seaver: there are boundary objects or trading zones where
disciplines meet—but people are often talking about different things (a “suitcase
term”). Are these definitions of attention all the same? Attention is a big
bag, but that can be appropriate!
West: the temptation is to go to individualized responses—“I
just need to be more careful/buy less/pay more attention”—but it’s the mental
infrastructure we live with. The firms have 150 psychologists on staff and it’s
not a fair fight.
Q: Seaver/Tushnet: Does attention exist or is it just about
metrics that we use for owning, controlling people/their behaviors? A proxy for
something deeper. Todd/West: podcasting and convenience—podcasts are regularly being
used to fill free time, raising the question whether they are really deeper
dives. Attentional experience different from that of reading books (we can do
other stuff while we listen). Current attention ecosystem: media strategy that
has to do with trying to reach the individual or the population that is the
most remote from the issue; anyone who actually knows what’s going on is alienated
by the way the news promotes the issues, but the goal is not to reach people
who understand—instead, it’s to reach the people who know the least.
West: longform content is just another method of platform
enclosure. Amazon/Tiktok equivalents of QVC where you can just watch and click
to buy.
RT: TM doctrines prioritize form over substance: TM is a
shortcut to compress information about the product/service: you see Coca-Cola
and remember the taste and the advertising and the lifestyle. But the TM owner
is allowed to change quality/characteristics without notice even though continuity
is supposedly the justification for the right. The obligation created by
reputation is not reciprocal.
Seaver: Attention is used as a proxy for productivity (the
mouse jiggler) or safety (the steering wheel)—the real value is the thing that
the attention is attached to, like truth (for media). Historically specific in
the modern era, perhaps.
Q: Do you think that attention can justly be owed?
RT: I’m attempting to describe how IP thinks about these issues; it depends on
the doctrine. Bundle of content and attention—attention might be owed if it
were really an efficient market if you were really free to choose it instead of
something else. It’s not fair if there’s monopoly control or market distortion.
Seaver: we tend to assume that neuroscience has to be
consulted, but if attention is just a word for “people should be able to do
things on their own schedules and at their own behest” you don’t need
neuroscientists for that. When Trump was elected in 2016, there was a lot of
attentional discourse: (1) how could this have happened, we (the polity) weren’t
paying attention; (2) everything he does is a distraction (to/for the polity) from
something else; (3) he has no attention span. These are three levels of
attentional discourse. The polity pays attention by writing things in the papers
even though we traditionally assume that writing things in papers leads to the
polity paying attention.
West: Advertisers like digital advertising because it can
show you the breadcrumbs of how you spent your ad dollars and whether someone
clicked—more behavioral.
RT: disagree—that’s only for some types of ads. Coca-Cola
doesn’t use behavioral advertising, and there’s lots of ad fraud. And only some
types of transparency. Amazon may tell you cost per click, but it doesn’t tell
you how you get put on the first page of search results, and it could change
how it organizes its site and destroy you at a moment’s notice.
Seaver: note that the jiggler is not super effective
resistance; interesting to see the pushback. Doesn’t find it morally
objectionable, but defeating the safety device on a car is—but they’re framed
the exact same way by their users.
from Blogger http://tushnet.blogspot.com/2025/04/the-battle-for-our-attention-empirical.html
Rebecca Tushnet 