Julie E. Cohen
Georgetown University Law Center
McDonough Hall, Room 558
600 New Jersey Avenue, NW
Washington, DC 20001

Title of Presentation: Aggregation, Individualization, and Fairness

In both intellectual property and privacy debates, a central topic is the extent to which it is fair for information providers to design technologies that tailor their interactions with individuals to particular characteristics of those individuals. An important conceptual underpinning of the trend toward greater tailoring is a tendency to equate individualized treatment with fairness/dignity, and (also and relatedly) with economic efficiency. Paradigmatic cases of this equation are the insistence on individualized due process of law as a prerequisite for legal liability and the importance ascribed to internalization of costs. Concurrently, aggregated treatment is equated with objectification, and with economic inefficiency. As a result of this conceptual apparatus, both profiling in Internet commerce and price discrimination in the distribution of information goods take on the doubly-impregnable aura of commercial due process. It is easy to conclude that individualized treatment is always most conducive to human dignity, and that its opposite, aggregated treatment, is also the opposite of dignified. But another way to view these two category-pairs individualized-aggregated and dignified-objectified is as constituting the two axes of a matrix that describes (at least) four types of interactions. If one can envision both aggregated and individualized modes of objectifying individuals (e.g., impersonal bureaucracies on the one hand and commercial profiling on the other), it should also be possible to envision both individualized and aggregated modes of dignifying individuals (e.g., recipients of legal due process on the one hand and valued customers or readers on the other). Conceptualizing the aggregated/dignified mode in turn poses the challenge of designing technologies that effectuate it.