Cybertrespassing

One emerging issue on the legal horizon for the internet involves a law left over from the Middle Ages. Thanks to sophisticated technology, cybertrespassing (trespassing on the internet) has become an issue and, since the courts have no laws to deal with it, they must draw upon existing, antiquated laws to create a new path.

"Trespassing to chattels" is a tort that has survived from the Middle Ages, and it has not changed since. It is a common law tort that offers a remedy to property owners whose property has been threatened in some way. A "chattel" is property other than real estate or intellectual property, like a website. This distinction makes trespassing of chattels different than regular trespassing. The tort encompasses, then, the attempt to damage or destroy goods, make unpermitted use of them or move them. Many interpret the tort to mean that there must be proof of damage or movement for a plaintiff to win a suit.

One example of internet intrusion is spam, but there are scores of others. It can be argued that spam can cause damage to an owner's computer, since it can spread viruses, or overflow a hard drive and perhaps cause it to crash. But what if the cybertrespassing causes no damage to the hard drive or computer slow down? One case in which this issue arose – eBay, Inc. v. Bidders Edge, Inc. – took place in 2000 and dealt with two online auction sites. In this case, Bidders Edge attempted to get a license from eBay to take information from the latter site and consolidate it, so as to save surfing time for online users. (Yahoo! has a similar deal).

Negotiations between the two companies broke down and Bidders Edge began using "spiders" to access information from the eBay site without permission. Thousands of times a day, these spiders (or probes) would get information from eBay and present it on Bidders Edge's website. The disrict court deciding the case said that eBay was entitled to injunctive relief (meaning they could make Bidders Edge stop the practice) because of the repetitive trespass to chattels. If no damage was done to eBay's website or equipment, then do the actions of Bidders Edge constitute trespass to chattels?

In another case - this one in 2003 – Intel Corp v Hamidi, Intel sued a former employee who had sent nasty emails to 8,000 to 35,000 Intel employees six different times. Intel blamed the defendant for loss of productivity, due to distracted and distraught employees. They also claimed they spent a long time trying to (unsuccessfully) thwart Hamidi's attempts to crack the company's website. The company was granted injunctive relief.

In both cases, the defendants argued that no harm had been done to the property in question. eBay could argue, however, that damage was caused if Bidders Edge slowed down its operation, or included an error about an item's price. And Intel argued that they suffered harm in loss of production. Both plaintiffs won their cases because of the negative effects of the trespasses, which seems to indicate that the precedent set by common law – requiring proof of damage – has held constant in the new media.

Certain questions remain: Should the courts use a law that arose during the Middle Ages to deal with cases in the new millenium? Must plaintiff's prove that their property (in this case websites, servers, and even reputation) has been damaged to win a law suit? Do users have the right to access information from a company's website? (either to make a profit or to speak out about their greivances? )

Sources:

"Cybertrespass"
Richard Epstein, University of Chicago Law Review, Winter, 2003
70 U. Chi. L. Rev. 73
Copyright (c) 2003 University of Chicago

RECENT DEVELOPMENT: Trespass to Chattels and the Internet: Intel v. Hamidi
Harvard Law School, Fall, 2003
17 Harv. J. Law & Tec 283
Copyright (c) 2003 Harvard Journal of Law & Technology

Tyson Marshall, Trespass to Chattels, the Internet’s Greatest Antagonist?, 40 S.D.L.REV. 461-79 (Winter 2003)

Bibliography

Trade Journals
• Morton, J. (1998). Protecting the Local Franchise Online. American Journalism Review. 20(3) 60.

Morton looks at how newspapers can use their resources for information and their clout in local communities to capitalize on the internet. He uses the Durham Herald-Sun as an example of a newspaper that paired with local organizations and retained its brand name trust. He mentions Microsoft’s Carpoint and Sidewalk (which I’ve never heard of), and writes that these services will compete with newspaper classifieds.

•Palser, B. (2002). Web Surfers on Speed … And other misconceptions about writing for the Web. American Journalism Review. October.

“Good Web writing is newswriting 101.”
Palser writes that the standards for news writing hold true for online news, and dispels many myths about the “typical” web surfer. She also writes about the misinterpretation of advise from “usability pioneer” Jakob Nielsen. She touches on style differences from print versions, the “architecture of information” and formatting.

•Palser, B. (1999). Charting New Terrain. American Journalism Review. 21(9) 25-31.

Here Palser looks at the sites of mid-size newspapers in comparison to national heavyweights. She discusses codes of ethics and standards in “new media.” Again, she promotes the basics of journalism.

•Raeder, A. (1996). News Publishers on the Net. Searcher. 4(5) 48-54.

Reviews newspapers on the internet, evaluating sites for papers like the Boston Globe, Christian Science Monitor, the Los Angeles Times and the New York Times. Raeder explores the advantages and disadvantages of online news and examines the future of E-news. Although a bit outdated, this article provides insight to presenting news when the medium of the internet was new itself.

Academic Journals
•Arant, M.D. & Anderson, J.Q. (2001). Newspaper Online Editors Support Traditional Standards. Newspaper Research Journal. 22(4) 57-70.

The authors conducted a quantitative study, with a survey of online newspaper editors at U.S. daily newspapers. They found that online newspaper editors felt standards should be the same for the internet and print, but the internet makes it more difficult to meet those standards with increased publishing speed and lack of adequate staff. They interviewed editors from newspapers with circulations of 15,000 and under to more than 200,000. They cite a 2000 study that found 99% of the nation’s largest newspapers and most medium-sized newspapers have an online presence. The authors’ survey looked at how often websites were updated, how many staff members worked on the online edition, how much of the news content from the print edition made it online and how this content was changed for the internet. They also touch on correction policies for online content. The authors suggest newspapers find journalists with web training or establish protocols that address online journalism dilemmas.

“Although the new medium demands some changes in protocols practiced in print publishing, newspapers cannot abandon any of the rigor of their standards of accuracy and integrity as they move from print to the online product. Otherwise, the online offspring could damage newspapers’ reputations and reduce reader trust in the parent publications (67).

•Lowrey, W. (1999). From map to machine: Conceptualizing and designing news on the Internet. Newspaper Research Journal. 20(4) 14-

The authors conducted open-ended, in-depth interview with creative directors who agreed that content must drive design and design must be kept simple for the web. The authors interviewed four individuals, all who work with newspapers on how to design for the internet. They were the creative director for the Chicago Tribune’s online edition, a creative director with Knight-Ridder new media, a former creative director for online news source Access Atlanta and former president of the Society for News Design. The author cites professionals and a researchers on what web strategies work best. The general consensus, he finds, is that design should follow content. He offers a list of remedies for online challenges.

“Many web papers parrot modernist newspaper design, which has become nearly universal in the print industry over the past 20 to 30 years. The modernist layout is a road map in which the route markers are headline size, dominant imagery, story placement and story length” (14).

“Newspaper designers are restricted by industry tradition and conventions and newspaper editors tend to be more narrow minded about design” (20).

•Peng, F.Y., Tham, N.I. & Xiaoming, H. (1999). Trends in Online Newspapers: A Look at the U.S. Web. Newspaper Research Journal. 20(2) 52-64.

The authors found that most editors see the internet as a way to open up new opportunities for the newspaper industry. They look at advantages of the internet – websites can gain additional readers and offer new services and greater interactivity. For an existing newspaper, the costs of adding an online component are minimal. Very few online newspapers are making money, however, according to the study in this article. Small newspapers, in specific, find it difficult to generate advertising revenues.

“The future of a new medium depends on whether it is simply a replica of an existing one and to what extent it can add value to it” (58).

•Randle, Q. (2001). Evolution of U.S. daily newspaper brand names into Internet URLs. Newspaper Research Journal. 22 (3) 89-92.

A content analysis of daily newspaper’s URLs. The author looks at the static brand, the evolved brand, new brand and “other.” The study looks at a directory database from Editor & Publisher and codes the URLs into these categories. The author finds that 79% of daily newspapers have websites. The most popular URL type was the evolved, followed by the static brand. The most frequently dropped or condensed words in titles were “sentinel,” “chronicle,” “evening,” “tribune,” “review” and “daily.” The author concluded that newspaper are using adaptive behaviors for the web.

•Singer, J.B., Tharp, M.P. & Haruta, A. (1999). Online staffers: Superstars or second-class citizens? Newspaper Research Journal. 20 (3) 29-47.

The authors looked at the affects of small online newspaper staffs on the perception of the staff. They conducted a mail survey of online and print editors at all U.S. daily newspapers that have been online at least six months at the time of the survey in 1998. They received responses from editors at newspapers with circulations of 3,500 to 2 million. They found that most newspapers have little crossover in print and online newsrooms. (Although editors at larger newspapers make up the brunt of this group – most editors at smaller newspapers said there was no staff that was online-only.)
The largest newspapers, which had separate online staffs, were more likely to produce unique online content.

•Weir, T. (1999). Innovators or Newshounds? Newspaper Research Journal. 20 (4) 62.

Conducted an online survey of readers of an electronic newspaper to find out who is reading it. It turns out online newspapers are not reaching younger audiences.

Books

•Meyer, P. (2004) The Vanishing Newspaper: Saving Journalism in the Information Age. Columbia: University of Missouri Press.

Meyer discusses strategies of newspapers to remain profitable as readership declines, both best and worst case scenarios included. He focuses on newspapers’ strength, which is influence. In order to survive, he writes that newspapers must do more than replicate their print version online; they must offer something new. Meyers writes that a lot of it is trial-and-error and improvisation. He uses Reuters partnering with Yahoo as an example of a success story.

“If a newspaper company’s main product is influence, it is important to know how its Web presence contributes to that influence. It is equally important to extend the influence created by the newspaper’s brand name to the Web product” (222).

•Black, R. (1997) Web sites that work. San Jose: Adobe Press.

A veteran designer for magazines and newspapers demonstrates which elements are universal and which strategies don’t translate well from print. Black discusses his transition from print media to the Web. Mostly a guide, and a little outdated, but it will provide useful information relating to newspapers’ move to the internet.

Internet

• Lynch, P. & Horton, S. Web Style Guide 2 (New Haven, Conn.: Yale University Press, 2001). Also available: http://www.webstyleguide.com.

This style guide can be used to create a list of criteria for websites. The authors outline elements necessary for a successful website.

• Morkes, J. & Nielsen, J. “Concise, SCANNABLE, and Objective:
How to Write for the Web” (1997), available: http://www.useit.com/papers/webwriting/writing.html

Morkes and Nielsen provide a catalog of internet users’ likes and dislikes and recommend effective web strategies. Their usability studies present evidence for what works and what doesn’t. These elements can be used as a checklist of criteria for a website.




Common themes

- No hard and fast rules to publishing news online.

Semiotics at work

I think semiotic analysis would help us to plan web pages, sites and blogs by helping us to utilize existing signs as a shorthand for concepts that take a long time to explain. And for instances where the writer wants to be persuasive, the use of semiotic analysis can serve to subtley sway audiences, like subliminal messages. In an art class, I learned that certain shapes and lines can evoke certain responses. A jagged line engenders feelings of unease, danger or violence. A smooth, undulating line conjures thoughts of motion, soothing water or softness. Likewise, certain images and signs can create different feelings in the reader. If we can harness those emotions online, perhaps we can get people to feel or act a certain way.

Semiotic analysis can complement our findings from useability studies by giving us more tools to evoke certain reactions and gain and keep readers. The main goal of writing anywhere - on the internet, in the newspaper or even on the radio - is to get people interested and to keep them interested, so they keep reading, listening or watching. Semiotic analysis can teach us ways to draw people's attention and keep it.

Take a bite out of Pie Town, NM

Edited version:

Smithsonian , Feb 2005 v35 i11 p72

Savoring pie town
Paul Hendrickson.

Full Text: COPYRIGHT 2005 Smithsonian Institution

The name alone would make a stomach-growling man wish to get up and go there: Pie Town. And then too, there are the old photographs--those moving gelatin-silver prints, and the equally beautiful ones made in Kodachrome color, six and a half decades ago, at the heel of the Depression, on the eve of a global war, by a gifted, itinerant, government, documentary photographer working on behalf of FDR's New Deal.

His name was Russell Lee. His Pie Town images--and there are something like 600 of them preserved in the archives of the Library of Congress--portrayed this little clot of high-mountain-desert New Mexico humanity in all of its redemptive, communal, hard-won glory. Many were published last year in Bound for Glory, America in Color 1939-43 .But let's get back to pie for a minute.

"Is there a particular kind you like?" Peggy Rawl, co-owner of Pie Town's Daily Pie Cafe, had asked sweetly on the phone, when I was still two-thirds of a continent away. But the chief confectioner was willing to take time out to ask what my favorite pie was so that she could have one ready when I got there.

HISTORY
Continental Divide: this is another aspect of Pie Town's strange gravitational pull, or so I have become convinced. People want to go see it, taste it, at least in part, because it sits right on the Continental Divide, at just under 8,000 feet. Something there is in our atavistic frontier self that hankers to stand on a spot in America, an invisible demarcation line, where the waters start to run in different directions toward different oceans. Never mind that you're never going to see much flowing water in Pie Town. Water, or, more accurately, its lack, has much to do with Pie Town's history.

The town had been around as a settlement since at least the early 1920s, started, or so the legend goes, by a man named Norman who'd filed a mining claim and opened a general store and enjoyed baking pies, rolling his own dough, making them from scratch. He'd serve them to family and travelers. Mr. Norman's pies were such a hit that everybody began calling the crossroads Pie Town.

The place was built up, principally, by Dust Bowlers of the mid- and late 1930s. They were refugees from their busted dreams in Oklahoma and West Texas. A little cooperative, Thoreauvian dream of self-reliance flowered 70 and 80 years ago, on this red earth, amid these ponderosa pines and junipers and pinon and rattlesnakes.

In the mid-'30s, something like 250 families lived in the surrounding area, most of them in exile from native ground gone arid. By the time Russell Lee arrived, the town with the arresting name boasted a Farm Bureau building, a hardware and feed store, a cafe and curio shop, a hotel, a baseball team, an elementary school, a taxidermy business.

Lee came to Pie Town as part of an FSA project to document how the Depression had ravaged rural America. Were Lee's photographs propagandistic, serving the aims of an administration back in Washington bent on getting New Deal relief legislation through Congress and accepted by the American people? Of course. That was part and parcel of the mission of the FSA/OWI documentary project in the first place.

But with good reason, many of the project's images, like the names of some of those who produced them--Walker Evans, Dorothea Lange, Russell Lee--have entered American cultural myth. The results of their collaborative work--approximately 164,000 FSA/OWI prints and negatives--are there in drawer after drawer of file cabinets at the Library of Congress in a room I have visited many times.

What happened in this dot of civilization, to go on with Pie Town's history, is that the agricultural dream dried up--quite literally. The good growing years lasted not even a generation. The winters became balmier. The snows wouldn't fall, not like they once did; the earth refused to hold its moisture for the spring planting. And so, many of those once-exiled families found themselves exiled again. Some of them had already long moved on to cities, to jobs in defense plants and airplane factories. They'd gone to Albuquerque, to California, where the life was said to be easier, the paychecks regular.

The "town" looked like no more than a wide spot in the road, with the Daily Pie Cafe and the post office and an art gallery just about the only visible enterprises. I just had to adjust my eyes, I just had to give it time--to find the drilling business, the realty office selling ranchettes, the mobile home campgrounds, the community center, the several churches, the fist of simple homes that stood along the old main street before they relocated U.S. 60, the long-closed old log hotel still standing on the old U.S. 60, home now to bats and spiders and snakes. Russ and Jean Lee had lodged there while he'd made his pictures.

VISITOR INFORMATION
I encountered Brad Beauchamp. He's a sculptor. He had topped 60. He was staffing the town Tourist and Visitor Information Center. There was a sign with those words in yellow lettering on the side of an art gallery. There was a big arrow and it directed me to the rear of the gallery. Beauchamp, instantly friendly, ten years a Pie Towner, is a transplant from San Diego, as is his wife. In California, they'd had a horse farm. They wanted a simpler life. Now they owned 90 acres and a cabin and an array of four-footed animals. They were making their living as best they could. Beauchamp, a lanky drink of water recovering from a bicycling accident, talked of yoga, of meditation, of a million stars in the New Mexico sky. "I've worked real hard on ... being calm out here," he said.

"So are you calmer?"

"I've got such a long way to go. You know, when you come to a place like this, you bring all your old stuff with you. But this is the place. We're not moving."

Since the sculptor was staffing the visitor's center, it seemed reasonable to ask if I could get some Pie Town literature.

"Nope," he said, breaking up. "That's because we don't have any. We have a visitor information center, but nothing about Pie Town. We do have brochures for a lot of places in the state, if you'd like some."

FOOD
And then there was the Daily Pie . I've been to some restaurants where a lot of desserts were listed on the menu, but this was ridiculous. The day's offerings were scrawled in a felt-tip pen on a big "Pie Chart" above my head. In addition to regular apple, there was:
• New Mexican apple (laced with green chili and pinon nuts),
• peach walnut crumb,
• boysen berry (that's the spelling in Pie Town),
• key lime cheesecake,
• strawberry rhubarb,
• peanut butter,
• chocolate chunk creme,
•chocolate walnut,
• apple cranberry crumb,
• triple berry,
• cherry streusel, and two or three others that I can no longer remember and didn't write down in my notebook.

The Pie Chart changes daily at the Daily Pie, and sometimes several times within a day. A red dot beside a name meant that there was at least a whole other pie of that same kind back in the kitchen. And a 1 or a 2 beside a name meant there were just one or two slices left, and apparently wouldn't be any more until that variety came up in the cycle again.

I settled on a piece of New Mexican apple, which was a lot better than "tasty." It was zingy. And now that I've sampled my share of Pie Town's finest selections, I'd like to relay a happy fact, which is probably implicit anyway: at the Daily Pie Cafe--where so much of Pie Town's current life unfolds--they serve much more than pie.

- Six days a week they make a killer breakfast and a huge lunch.
- Two days a week they dish until 8 p.m.
- On Sundays, the piece de resistance, they're glad to work you over with one of those all-afternoon, old-fashioned turkey, ham or roast-beef dinners with potatoes and three vegetables.

SURVIVING LINK
I went around with "Pop" McKee. His real name is Kenneth Earl McKee. He has a mountain man's untrimmed white beard. When I met him, his pants were held up by a length of blue cord, and the leather of his work boots seemed soft as lanolin. He had a little heh-heh caving-in-on-itself laugh. He has piercing blue eyes. He lives in a simple home not even 200 yards from where, in the early summer of 1940, a documentarian froze time in a box on a pine board elementary school stage.

Pop McKee, past 70, is one of the last surviving links to Russell Lee's photographs. He is in many of Russell Lee's ) Pie Town photographs. He is that little kid, third from right, in the overalls at the Pie Town community school, along with his cousin and one of his sisters. The kids of Pie Town are singing on a makeshift stage. Pop is about 8.

In 1937, Pop McKee's father--Roy McKee, who lies in the town cemetery, along with his wife, Maudie Bell--had driven a John Deere tractor from O'Donnell, Texas, toward his new farming dream, pulling a wagon with most of the family possessions. It took him about five days. Pop asked me if I wanted to go out to the old homestead. I sure did. "I guess we will then," he said, cackling.

"Life must have been so hard," I said, as we drove to the homestead. It was out of town a little ways.

"Yeah, but you didn't know it," he said.

"You never wanted a better life, an easier one?"

"Well, you didn't know no better one. A fellow doesn't know a better one, he won't want one."

Paul Hendrickson, who teaches writing at the University of Pennsylvania, is author of the award-winning Sons of Mississippi.


Original story:
Smithsonian , Feb 2005 v35 i11 p72


I think the addition of photographs and other graphics would help make this story a useful Web experience for readers. I like the idea of having an interactive map on the screen so that readers can see where pie town is in relation to them and how to get there. If there were sound recordings from an interview, that might be a nice thing to add, as well.

Changing this article for posting online was far more difficult than I had imagined. First of all, the original article was written more as a feature, telling the history of the town, rather than a travel article. I still think the story includes useful information on how to get there, what to expect and where to eat. It certainly sparked my interest in Pie Town! I tried to break down the story into sections and added two lists, one of the types of pies available at the Daily Pie Cafe and the other of the restaurants daily offerings. I didn't see much else to put into list format and I think this flags up the point that this article is not written as a "how to visit" Pie Town piece. In ordedr to make it more in that vein, I excised portions of superfluous detail and background. I feel like I sacrificed some of the author's voice, but it helped focus the piece. I still think the article could be improved with the addition of more useful information on lodging, prices, etc. and by cutting more of the details.