Guest post by Marc Ribot.
The deceptive premises of the NYTimes Editorial “Keep the Internet Free of Borders” 8/10, begin with the title, which leads one to believe that this ITC case will take something away that actually exists. In fact, the Internet is not now and has never been, “free of borders”. Copyright law prohibits unlawful distribution of copyrighted works outside national borders and has strict provisions on import and export of copyrighted works. The Internet has never been free of copyright law, because copyright is nation-based. That’s why a new treaty was adopted to address the cross-border issue of distribution of works for blind and reading impaired persons- the Marrakesh Treaty adopted in 2012-, and why a global treaty for libraries is now under discussion: to make cross-border distribution legal in certain cases, precisely because right now it’s restricted. Even Google knows that the Internet has national borders. It found a way to respect them for Google Books- a mechanism to prevent export of copyrighted works to other countries. There are patent rules too. All universities have policies regarding import and export of patented material. Export control rules and guidelines already cover patented material/trade competition and have NEVER been restricted to physical goods.
When the editorial extrapolates its argument to the record industry, it goes even further afield. ” The I.T.C. has long had the power to forbid companies from importing physical goods like electronics, books and mechanical equipment that violate the patents, copyrights and trademarks of American businesses…The commission’s order to ClearCorrect was the first time it had sought to bar the transfer of digital information.”
The Times takes the RIAA to task for supporting the decision: “Groups like the…Recording Industry Association of America are supporting the commission’s view… that, as trade increasingly becomes digital, the definition of “article” should include data.”
Yet when there was actually legislation on the table supporting the alternative remedies to ITC intervention that the editorial now claims to favor, the NY Times took the exact opposite position ( Beyond SOPA 1/28/12), and supported empowering the ITC: “By giving the International Trade Commission sole authority to determine infringement, [the OPEN Act] would…[give] copyright holders powerful new tools to protect themselves [while] protecting legitimate expression on the Web from overzealous content owners.
Funny how ‘Times’ change.
In any case, the alternate remedies proposed in last weeks editorial simply don’t apply to recording artists works. “There are far better ways to [protect…patents and copyrights]….Align could sue ClearCorrect and seek damages for patent infringement. Or the company could ask a judge to order ClearCorrect to stop selling products made using the information contained in the files.”
Sounds great: but asking a judge to order an infringing company to stop selling [physical] products made using information contained in infringing files’ isn’t relevant for people whose product is the files themselves. And of course, suing companies profiting from infringement is precisely what musicians can’t do, thanks to the Safe Harbor Clause of the DMCA. That clause exempts online businesses from the normal responsibility of companies for violations of the law occurring on their premises.
Is the NY Times now going to support ending Safe Harbor protection for companies whose business models are based on aiding, abetting, and profiting from infringement? Such a position would be the only way musicians could have access to its suggested remedy.
We certainly hope so, because while congress has failed to effectively regulate the unfair black market destroying the value of our work, our industry has crashed and our livelihoods are suffering.
Our problem isn’t new technology itself, but the failure of government to regulate new and unfair forms of exploitation. The internet has borders: it is bound internationally by the laws of sovereign nations, and internally by laws which protect the rights of citizens. It also has hugely powerful corporations attempting to violate those borders on a massive scale in order to create consumer ‘facts on the ground’ which render those rights politically un-enforceable.
International borders aren’t the only boundaries threatened by big tech’s drive to profit from infringement: the consequences of the failure of government to stand up to this corporate manipulation won’t stay neatly contained within the music industry. Nor will the effective nullification of citizens rights stop at those protecting artists. Its a slippery slope, baby.
– M ribot
The Trichordist 
The part of all this I’m finding the most difficult to rationalise is that so few musicians seem to be actively and vociferously opposing the changes in business models and attitudes now prevalent courtesy of digital age and Tech companies. Companies that keep devaluing the work of creators and abusing artists rights with virtual (pun intended) impunity! Is it the same flaw in the human brain that causes people to acquiesce when mob mentality leads to self destructive behaviour? Is there a touch of Stockholm Syndrome causing musicians to fall in love with their abusers? Or is it simply just plain apathy? Where are the protest groups and mass rallies, concerts and political pressures to raise awareness and stop this worldwide rights abuse? The abusers are not heroes to be admired, they are cowards hiding behind safe harbour legislation or cloaks of anonymity. They are con artists who are far more tech savvy than those running simple email scams. And yet too many musicians/artists have become willing silent slaves to masters of the digital age! The masters that feed them scraps while distracting, enticing and sedating musicians and music consumers alike with a new smartphone every year, shitty overpriced headphones, more apps than one could download in 10 lifetimes and the ever present promise of a brave new world with a level playing field courtesy of the internet; a promise that has never born fruit. While they, the abusers grow rich and fat off the backs of creative content they did not produce, did not invest in and do not own! WTF is going on? Will someone please give me a rational explanation for why so many musicians/artists appear to be quite content to bend over and take it up the arse! If these companies were asking bricklayers to lay bricks without pay (or far below fair pay) the bricks would hurled in their direction (metaphorically and literally) by very angry construction workers who refuse to be treated like slaves. It would suggest to me that bricklayers have more pride in their own work than musicians do these days, what a sad fucking state of affairs. I wish I had been born twenty years earlier than I was so that I would have been long retired and spending my final days fishing on a sunny beach somewhere while listening to my favourite CD’s on a big old school boombox, instead of witnessing this and trying to make sense of it all. Instead of still trying to motivate musicians to put more time into creating music that is being devalued at at alarming rate. The internet and digital distribution was supposed to be the leveller of the playing field for independent artists. Instead it has become the Enola Gay of the independent music scene, carrying the bomb that has already killed many on impact and continues to kill or weaken creative sprits with it’s deadly fallout while more and more Nerds and venture capitalists build bigger and more destructive bombs.
I’m generally a positive guy, the glass half full kinda guy and honestly wish I could have delivered this rant with a brighter tone. However I can’t find a way to put an attractive sheen on all this but there’s probably an App for that right?