Q: What happens to our free market system by effectively eliminating the law of supply and demand when it comes to works of art?
Premise:
When an artist dies one can expect the value of their work to be maximized. The demand follows suit, because the supply of new “original” works of art is no longer there. The source of the product has ceased to be.
The Orphan Works bills in question effectively regulate demand, by eliminating the substantive value inherent in having control over the supply by the “producer” and instead placing it in the hands of anyone with ready access to the product; any person or entity not having a vested interest in the product other than to profit through exploitation of someone else’s effort. It’s a carte blanche to steal without abandon.
These Orphan Works bills, in their express effort to eliminate liability, admit that there is demand for art (Inherent value). However, they do nothing to protect the source in a manner to meet the economic principle that would balance the scale from the supply side. This is in total contradiction to the free market system and an absolute hindrance to the economic integrity of pure capitalism.
If passed into law, our political elite would have accomplished one thing: The elimination of competition from the realm of the arts. Without copyright protection an artist has no recourse to demand “fair market value”.
If there’s no demand, then there’s no argument concerning the value of the work of art, because such circumstances would indicate that copyright provides no value to the owner (i.e. No profit to be made from selling or licensing the work of art). However, by not exercising equitable statutory restriction on a demand that is existent, and at the same time eliminating control by the supplier of the product, there’s no arena for negotiation that would reveal the real value of the product. The value is still there, it’s just been rendered null and void for the owner.
How can an artist be expected to contract with a party committing infringement after-the-fact? By its own definition, the act of infringement is a violation. However, according to the orphan works bills, the benefits are weighed against the owner and bestowed upon the encroaching party. Who is really setting the so-called market value when conducting business via a back-door selling approach?
This is the alleged relief available to an artist under these bills. An “infringer” who has presumably in “good faith” sought you out (too loosely defined at this point), will then negotiate with you for the infringement that has already taken place, based on a “market value” for the usage. We have already briefly touched upon why this logic is erroneous. What our elected officials are really saying is that this will be a type of settlement to resolve a conflict. However, they are by default encouraging–rather, establishing–the conflict. The artist is stripped of their competitive advantage to negotiate under such circumstances. The situation is created to force a much lower price. This is by no means compelling a copyright owner to grant license under the definition of compulsory copyright license. Extortion anyone?
Q: What happens then to the artist’s right to contract pursuant to the United States Constitution? What is a contract if it isn’t a mutual understanding between two or more parties taking place at the same time? The time element is a function of any real contract.
Q: What do the Orphan Works bill do to this constitutional right? What of promoting involuntary servitude?
Note: I’ve updated this post with links; mostly concerning definitions of certain key words. Most of the definitions are derived from BusinessDictionary.com. It’s no coincidence that I’ve resorted to this as my primary source for the definitions, because after all this is really about business! If you care to take the time to study the bills and this post with the definitions I’ve highlighted, you’ll be able to assess for yourself whether or not what I’m concluding makes any sense. The more I look into this the more I realize how stupid it is. But, since we’re still (maybe) in a free country, you’ll have to arrive at your own conclusions.
If you do arrive at the same conclusion, then please spread the word and contact your state congressmen and senators. Similarly, you may be inclined to sign an online petition.
Posted by samdel 
SAMDEL's Weblog 