PUBLIC DESIGN WORKSHOP

NYU LAW SCHOOL, SEPTEMBER 13-14,- 2002

Julie E. Cohen
(jec@law.georgetown.edu)
Georgetown University Law Center
McDonough Hall, Room 558
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9871

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.

Julie E. Cohen is Professor of Law at the Georgetown University Law Center. She teaches and writes about intellectual property law, with particular focus on computer software and digital works and on the intersection of copyright, privacy, and the First Amendment in cyberspace. She is a member of the Advisory Board of the Electronic Privacy Information Center, the Advisory Board of Public Knowledge, and the Board of Academic Advisors to the American Committee for Interoperable Systems. From 1995 to 1999, Professor Cohen taught at the University of Pittsburgh School of Law. From 1992 to 1995, she practiced with the San Francisco firm of McCutchen, Doyle, Brown & Enersen, where she specialized in intellectual property litigation. Professor Cohen received her A.B. from Harvard-Radcliffe and her J.D. from the Harvard Law School. She is a former law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit.

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