August 26, 2011 5:10PM

Whose Axe Made Your Axe? You Better Find Out

For the second time in two years, federal agents from the U.S. Fish and Wildlife Service have raided two Tennessee factories that make iconic Gibson guitars. The government alleges that Gibson imported woods in violation of the Lacey Act, a century-old law that makes it a federal crime to trade in plants, wildlife, or timber that have been harvested in violation of “any foreign law.”

While this seems simple enough, and the anti-poaching/conservation impulses behind the law are certainly commendable, the Lacey Act has become one of many federal statutes that create invisible minefields of federal regulations into which anyone can stumble unknowingly.

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A Gibson Les Paul[/caption]

In the Wall Street Journal today, Eric Felten discusses the Gibson raid and points out just how dangerous and overblown the Lacey Act has become. Since plants and timber were added to the act in 2008, even individual owners of vintage guitars can run afoul of the act. Felten writes:

If you are the lucky owner of a 1920s Martin guitar, it may well be made, in part, of Brazilian rosewood. Cross an international border with an instrument made of that now-restricted wood, and you better have correct and complete documentation proving the age of the instrument. Otherwise, you could lose it to a zealous customs agent—not to mention face fines and prosecution.

In addition, all the confusing forms must be filled out completely and perfectly, or you could face heavy penalties.

As a guitarist with an appreciation for vintage gear, as well as a Gibson fan, I’ve been following these stories with both a personal and professional interest. Perhaps Gibson has committed bona fide violations of the Lacey Act and perhaps not. I would guess, given the incentives the law creates, that Gibson has done its best to comply. But complying with a law that requires interpreting the interaction of vague foreign laws with vague domestic laws is easier said than done. Like a legal Heisenberg Uncertainty Principle, the laws may not exist until federal prosecutors observe them.

One of the most heartbreaking stories of federal prosecutors running amok with the Lacey Act is the story of Abner Schoenwetter, a grandfatherly Miami seafood importer who spent six years in a federal prison for importing lobster tails that violated the laws of Honduras. Except they didn’t. Honduras filed briefs and testified on behalf of Schoenwetter and his co-defendants, pointing out that what federal prosecutors thought to be Honduran law was not actually Honduran law. Federal prosecutors were unperturbed, however, determined to wipe this menace to society from our streets. (You can read the full, sad story of the case here.)

Although I’m not an insider to the Gibson case, it seems something similar may be going on. During the first raid two years ago, the government seized ebony fingerboards that allegedly violated Madagascar’s laws. To date, however, no charges have been filed. According to Gibson’s press release, the company “obtained sworn statements and documents from the Madagascar government” that the fingerboards “seized in 2009 were legally exported under Madagascar law and that no law has been violated.”

On Wednesday, the government apparently seized materials imported from India that, in alleged violation of Indian law, had not been fully finished by Indian workers. And again, according to Gibson’s press release, the searches were predicated on the “Justice Department’s interpretation of a law in India,” and the “action was taken without the support and consent of the government in India.” Also, notice that the Indian law allegedly violated here has little or nothing to do with preventing poaching or promoting conservation. No matter, however, because the Lacey Act prohibits importation in violation of “any foreign law.”

For those of us who want Gibson to continue making world-class guitars, the legal standards for those who import timber need to be clarified and differentiated from those who are subject to other parts of the Lacey Act, that is, fish and game importers. Unlike smaller, more regional markets for lobsters and other animals, the timber market is a vast supply chain. The timber at the Gibson factory has often gone through many intermediaries, making it incredibly difficult to identify its origins.

Without clarifying the standard of care that Gibson must employ, overzealous federal prosecutors enforcing the vague laws of two countries create a legal black hole around which companies like Gibson must take a wide berth lest they get sucked in. As a result, they may inefficiently over-comply by, for example, stopping importation of all timber from any “problem” area of the world. In other words, Gibson guitars of the future may not have signature ebony fingerboards, even when those fingerboards could have been legally imported. To guitarists everywhere, these details make a difference and they help make Gibson a premiere guitar-maker. Hopefully, it stays that way.