There was electricity in the air during a session by Brian Buss and Doug Bania, who talked about calculating damages from the misuse of intellectual property and defamation over the Internet. They do a lot of testifying in this area and one judge said “I never thought I’d be hearing a case like this.” It’s a whole new world of the Internet becoming the new corner store and the foot traffic is “search and social,” they say. And this phenomenon has triggered an emerging area of commercial damages. For example, trademarks can be hidden in metadata to misdirect a competitor’s customers who are doing a web search. Social media can be a breeding ground for potentially libelous statements using Facebook, blogs, Twitter, and other online forums.
It’s a complicated area, but fortunately there are tools you can use to ferret out, calculate and prove damages with respect to Internet infringement and defamation. But Buss and Bania stress that these new tools, such as Google Analytics, do not necessarily replace any of the existing valuation and damages methodologies. They are supplemental tools to gather more information. They also say that many people are unfamiliar with this new online world, so it’s Important to educate your audience—whether it’s a business client or judge–before you get into an explanation of how you valued and calculated damages.
- After completing the session, attendees will be able to:
- Educate jurors and attorneys on the key concepts of profit apportionment, “but-for” vs. “as-is,” and relief from pay-per-click
- Interpret and leverage the data collected from Internet analytics
- Calculate the value of Internet and social media marketing activities
- Obtain and explain the data and information required to support domain name valuation and Internet damages calculations
- Differentiate between the tactics for preparing and reviewing damages calculations from a plaintiff and defendant point of view
- Incorporate the all-important narrative aspect of a damages expert’s report and testimony and the requirement that the judge, arbitrator, or jury understand the context of search, social media, and web-based marketing