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