Abstract

Social data production is a unique form of value creation that characterizes informational capitalism. Social data production also presents critical challenges for the various legal regimes that are encountering it. This Article provides legal scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production which is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that companies follow to build up and leverage prediction value and describes the normative and legal ramifications of these scripts.

The Article then applies these descriptive contributions to demonstrate how legal regimes are failing to effectively regulate social data value creation. Through the examples of tax law and data privacy law, it demonstrates these struggles in both legal regimes that have historically regulated value creation, like tax law, and legal regimes that have been newly tasked with regulating value creation by informational capitalism, like privacy and data protection law.

The Article argues that separately analyzing data’s prediction value and its exchange value may be helpful to understanding the challenges the law faces in governing social data production and the political economy surrounding such production. This improved understanding will equip legal scholars to better confront the harms of law’s failures in the face of informational capitalism, reduce legal arbitrage by powerful actors, and facilitate opportunities to maximize the beneficial potential of social data value.

Disciplines

Antitrust and Trade Regulation | Law and Economics | Public Economics

Date of this Version

8-30-2023

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