Using Internet Analytic Tools for Valuation and Damages Calculations in Internet IP Infringement and Defamation Cases

1.0 Introduction

Use of the Internet and social media has become an increasingly essential element of conducting business in the United States and globally, which in turn raises new issues for calculating damages and performing valuations. With almost every business now using the Internet and social media to conduct business, cases of Internet IP infringement, IP misuse, and defamation have increased and evolved. Before the rise of these new media, cases of infringement and defamation typically occurred in print or on television and were visually obvious. Today, however, infringement and misuse via Internet can be hidden in metadata or keywords and may not be visually obvious. Such misuse was usually also geographically constrained to the area or region where the actual misuse occurred or was broadcast. In the world of traditional media, the number of people who would have been exposed to a billboard, sign, or even a television show could only be estimated at best. Today, Internet infringement has the possibility of being seen by anyone in the world, and a social media post can immediately go viral.

This chapter describes the ways in which Internet and social media analytics can be used to accurately measure and quantify the spread, awareness, and impact of IP misuse. In doing so, it explores the overlap between Internet and social media analysis and intellectual property analysis and provides examples showing the use of the data as part of traditional valuation and damages analyses.

This chapter begins with a brief discussion of four concepts key to understanding effective Internet use and analysis that valuation experts will want to clarify for clients, judges, jurists, or mediators: search, optimization, social media, and analytics. It then discusses the principles and readily available tools that analysts can use to uncover facts essential to determining whether clients have a defensible case for legal action and to what financial damages they may be entitled.

2.0 Key Concepts of Internet and Social Media Analysis

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