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VOLUME TWENTY-THREE, NUMBER 1 -- 2002TABLE OF CONTENTS ARTICLES FLANAGAN’S WAKE: NEWSGATHERERS NAVIGATE UNCERTAIN WATERS FOLLOWING FLANAGAN V. FLANAGAN In March 2002, the California Supreme Court handed down Flanagan v. Flanagan, a much-anticipated decision evaluating Penal Code section 632, California’s antieavesdropping and anti-recording statute. The decision settled a split in California's intermediate appellate courts about the meaning of the term “confidential communication.” It did not, however, involve a matter of public interest and did not involve media-related activities. Accordingly, Flanagan had no occasion to balance two competing principles: the developing recognition of privacy rights against the well-established right of the press to obtain and report newsworthy information. The authors argue that the flaws in Flanagan's reasoning and conclusions are abundant, and that the importance of narrowly interpreting that decision cannot be overstated. If and when another court is faced with principles that directly conflict with the notions of privacy embedded in anti-recording statutes, judges will need to make a choice. Either the inherent value in recordings and their ability to offer truth-shedding light on important issues will be recognized, or vague notions of “privacy” for privacy’s sake will harm the best interests of society in the dissemination of truthful, important, and potentially vital information. In three different cases in the mid-1990s, the United States Court of Appeals resolved copyright cases in favor of songwriters who had sought to be declared cowriters of three very famous songs. However, on the issue of damages, only one plaintiff succeeded in recovering any money, with the amount being far less than it could have been. Notwithstanding any statutory limitations or equitable laches defenses, the Fifth Circuit declared Shirley Goodman a co-writer of Let the Good Times Roll and awarded her more than $600,000 in writing and publishing royalties. On the other hand, after being declared co-writers of Why Do Fools Fall In Love? by the Second Circuit, Herman Santiago and Jimmy Merchant were disallowed any recovery on the theory that the limitations provision of the Copyright Act barred their damages claim. Similarly, the Ninth Circuit prevented Danny Jackson, Jr., cowriter of Joy to the World, from recovering damages on the theory that the equitable doctrine of laches was applicable as a complete defense. In light of these results, the question then becomes, Why did three federal circuit courts reach distinctly different results in such similar cases? This Article argues that the Supreme Court should grant certiorari at its next opportunity to resolve the split in the circuits on this question. It discusses the issue of federal versus state jurisdiction in these cases, and then how the limitations period as contained in copyright law is applied inconsistently. Next, the Article discusses the applicability of the doctrine of laches, before concluding with a discussion of the policies that underlie grants of certiorari by the United States Supreme Court. NOTES & COMMENTS THE DEMISE OF ANONYMITY: A CONSTITUTIONAL CHALLENGE TO THE CONVENTION ON CYBERCRIME The vertiginous growth of the Internet has vastly expanded the means of communication. While the demotic potential of cyberspace is well recognized, less known is that individuals can reach audiences of thousands or even millions in ways that conceal their true identities. Regrettably, the same technology that allows individuals to communicate anonymously also enables criminals to hide their identities and evade detection in cyberspace. The Convention on Cybercrime -- the Council of Europe’s response to these unique challenges -- is the first international treaty on criminal offenses committed against or with the help of the Internet. However, the treaty’s provisions for government access to computer data and requirements compelling Internet providers to produce detailed logs of network activity undermine individual privacy and the right to communicate anonymously in cyberspace. The United States must not endorse the Convention in its current form, but instead must develop international agreements upholding First Amendment liberties and the precedence of the Constitution. TARGET HIRING TO REACH A TARGET AUDIENCE For the past two decades, age discrimination has become an increasing problem in the hiring of writers for network television jobs. Plaintiffs in Wynn v. NBC allege that the Networks are rejecting older writers solely because they are older -- without even looking at the quality of their work -- in order to cater to advertisers who prefer to buy time on shows that appeal to young viewers. While no one is contending that it is illegal for the Networks to target their message to the young audience preferred by its advertisers, the writers contend that it is both illegal and unnecessary to insist that this youthful message be written by a youthful messenger. Although hiring based on customer preference is a well-established unlawful practice, it has been said that nothing stops Hollywood. If customer preference was held not to be an excuse for discriminating against African-American restaurant patrons in the 1960s, or male flight attendants in the 1970s, the Networks should not be able to justify their alleged invidious discrimination on the grounds that advertisers will not buy time, and thereby fund shows, that purportedly will not appeal to their preferred target demographic group. In short, this Comment asserts that the ADEA must be enforced against the Networks in order to fill writers’ positions based on the abilities of the applicants and not the preferences of the advertisers.
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