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VOLUME TWENTY, NUMBER 3 -- 2000TABLE OF CONTENTSARTICLES A CONTESTED ASCENDANCY: PROBLEMS WITH PERSONAL MANAGERS ACTING AS PRODUCERS Personal managers are enjoying a rise to prominence in the Hollywood hierarchy as several of their ranks capitalize on an ability not only to represent talent, but also to act as film and television producers. Talent agents, prohibited by law from producing, are envious of the financial success of Michael Ovitz's Artists Management Group and other newly refashioned management companies, and agents are not content to continue playing on an uneven regulatory field. As tensions between these two camps grow, artists are increasingly in need of legal representation in dealings .with their own representatives. This Article discusses the historical background of these two professions and explores a variety of possible solutions to the conflicts of interest that arise when talent representatives produce their clients' work. Although the California Legislature has flirted with enacting a solution to this problem, neither public law nor the free market is best suited to resolving the matter. The Article argues instead that it is the entertainment guilds that must interpose themselves between the talent representatives and their members. REVERSE ENGINEERING OF SOFTWARE: AN ASSESSMENT OF THE LEGALITY OF INTERMEDIATE COPYING The copyright policies of “author reward” and “idea dissemination” will likely clash where it is unclear whether subject matter seemingly appropriated by another is protectable under the Copyright Act or whether it contains both protectable and unprotectable elements. A technological practice exemplifying this conflict is the reverse engineering of software, which involves working backward from a finished software program to determine how the program operates. This Article focuses on the legality of making an intermediate copy of an original software work for the purposes of developing a new software product that otherwise does not infringe on the original. The Article concludes although intermediate copyists of software are usually copyright infringers, they may potentially escape liability for infringement through a number of defensive measures. However, even if reverse engineers manage to escape liability under the Copyright Act, they may remain liable under state law for breach of license, or under the Digital Millennium Copyright Act. NOTES & COMMENTS The First Amendment of the United States Constitution guarantees Americans one of the most fundamental of rights, freedom of speech. However, the Supreme Court has afforded a lesser level of protection to commercial speech in comparison to non-commercial speech despite the fact that it is an indispensable part of a democratic market economy. Currently, commercial speech regulations are subject to review under a four-prong test, created by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. Under the Central Hudson test many commercial speech regulations have been upheld. Recently, the Supreme Court has begun to strictly apply the Central Hudson test. In Greater New Orleans Broadcasting Ass’n v. United States, the Supreme Court followed this trend and strictly applied the Central Hudson test to strike down a Congressional ban on casino broadcast advertisements, as it applied to broadcasters located in states where casino gambling was legal. The aftermath of Greater New Orleans has prompted further pro-commercial speech strides. This Note argues that the Greater New Orleans Court should have gone one step further and rejected the Central Hudson test, which has already been drastically narrowed and strictly applied. Commercial speech has explicitly enjoyed First Amendment
protection since the mid-1970’s. However, the degree of protection to
which commercial speech is entitled has been the subject of much controversy.
Jurisprudence evidences
definitions and guidelines for understanding the commercial speech doctrine
that are, at times, inconsistent and waver as to the level of constitutional
protection afforded to commercial speech. In 1998, the Court of Appeals for
the Second Circuit decided Bad Frog Brewery, Inc. v. New York State Liquor
Authority. That case involved the New York State Liquor Authority’s denial
of label approval to a brewery whose labels depict an image of a frog “giving
the finger.” The Second Circuit carefully waded its way through a long
and often convoluted history of the commercial speech doctrine and found that
the denial of label approval violated the brewery’s First Amendment rights.
This Note examines the history of the commercial speech doctrine and Bad
Frog Brewery in light of such history. This Note argues that the Second Circuit’s
decision properly followed precedent and took a step forward in advancing constitutional
protection of commercial speech. Finally, this Note concludes that the Bad
Frog Brewery decision is consistent with the roots and purpose of the First
Amendment. |
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