Originally published at Death and Taxes, ed. Brian Abrams, 11 March 2016.
Grateful thanks to the Internet Archive for preserving this work.
On the last day of the prosecution’s case in the Gawker/Hulk Hogan trial, interest has focused on the dollar value of the Hogan sex tape, presumably with a view to setting a sum for damages.
Friday morning’s first witness, a balding ginger gentleman by the name of Shanti Shunn, was a purported expert in web analytics called in to estimate the number of times the Hogan sex tape was viewed through Gawker’s publication. Since Shunn’s report relied solely on screenshots obtained from Hogan’s lawyers (rather than forensics or analytics obtained from Gawker) it is pretty thin stuff. Shunn’s total page view count (not the video view count) was something north of 4.4 million views. It was easy to guess how Gawker would counter this flimsy number: Page views can be counted any number of different ways; by landing even for a moment, by spending a set amount of time, by scrolling through a page to a given point, and so on.
In the increasingly sophisticated world of web analytics, ad sales on internet video are frequently calculated based on a certain length of time spent watching the video itself. During questioning, Shunn admitted at last that he had no idea and no means of determining how many people had really watched the Hogan sex tape.
Similarly Jeff Anderson, the prosecution’s last witness, relied on outmoded methods in order to determine the value of the Hogan sex tape to Gawker’s bottom line. Anderson works for a firm called Consor that values intellectual property. Hogan’s lawyers brought him in to determine how the value of Gawker.com increased owing to the publication of just the Hogan sex tape. Incredibly, he arrived at this figure by:
a) comparing the numbers of users to the market capitalization of companies like BuzzFeed and HuffPo (in no way a consistent figure)
b) assigning a value per user
c) estimating the increase in Gawker.com’s value over the period during which the Hogan post was online at Gawker ($54 million arrived at by maybe reading lamb entrails)
d) assuming that 28.53% of that figure (tea leaves) was attributable to the Hogan sex tape.
Anderson finally admitted that he wasn’t aware of a single instance in which his methodology had ever been used to determine the financial value of a single web post. But my real question is this: If the suit is alleging invasion of privacy, why is the dollar value of the sex tape an issue at all? Leaving aside the question of whether anyone would pay even $1 to watch that terrible 100 seconds of Hogan having sex with Heather Clem.
