Published October 05, 2011
It's as sweet a sound as you can imagine. A $10,000 guitar expertly crafted by the hands of Dave Berkowitz, a master luthier in Washington, D.C.
But Berkowitz's guitars include fretboards and bridges made from Indian rosewood and ebony, which the U.S. Fish and Wildlife service declared to be illegal to import in its actions against Gibson Guitar back in August. Now, every time Berkowitz uses that wood to build his immaculate instruments, he is potentially breaking the law.
"I use the exact same ebony and rosewood fingerboards that were confiscated in August from Gibson," Berkowitz told Fox News.
Does that mean he is "engaging in illegal business practices?"
"Well, technically speaking, yes, because they have declared the materials I'm using illegal," he said.
But whether the Indian rosewood and ebony that Berkowitz and Gibson -- and so many other guitar makers -- use is really illegal depends on who is asked.
According to the Indian government, fingerboard "blanks" -- the wood that will eventually become a guitar's fretboard -- are legal to export.
"Fingerboard is a finished product and not wood in primary form," Vinod Srivastava, India's deputy director-general of foreign trade, stipulated in a letter dated Sept. 16. "The foreign trade policy of the government of India allows free export of such finished products of wood."
The U.S. government disagrees. In its affidavit to search Gibson, U.S. Fish and Wildlife Service considers fingerboard blanks to be raw materials, not finished product -- illegal to export from India and, therefore, illegal to import into the United States.
What's more, according to the complaint, the Gibson wood was imported with an incorrect tariff code, which was off by one digit from the correct code. Luthiers Mercantile International, the company that imports the wood for Gibson, claims that was a simple clerical error. The difference in the codes refers to the thickness of the wood -- more than or less than six millimeters in thickness.
Since the government raided Gibson, Luthiers Mercantile has been unable to import any Indian rosewood or ebony. As it is a major supplier to guitar makers across the nation, it means the companies can't get wood either. Berkowitz said now he would be afraid to use it anyway.
"One fine from Fish and Wildlife would shut me down and bankrupt me," he said.
Gibson was raided for suspected violations of the Lacey Act, a 1900 law initially crafted to protect rare and exotic birds, whose feathers were prized for women's hats. It was amended in 2008 to include wood. The main driver was to protect the U.S. forest industry against cheap foreign competition that involved illegal logging. But it also helped protect sensitive forests and rare species of trees against poachers.
But the law appears to have also had the unintended effect of stifling American business.
The National Association of Music Merchants, which represents some 9,000 manufacturers and retailers wrote a letter to President Obama and every member of Congress, complaining about the confusion left in the wake of the Gibson raid.
"Many of NAMM's member companies are being negatively impacted by the Lacey Act, a well-intentioned law, but one with unintended consequences that we feel are damaging to our industry and the economy," NAMM's chairman and president wrote.
Sen. Lamar Alexander, R-Tenn. co-sponsored the amendment to the Lacey Act. He suggested changes may be needed.
"It had nothing to do with guitars," he said. "So it's not unusual for laws to have unintended consequences. And when they do, we legislators ought to say, 'Whoops, we didn't think of that. That may be a problem. Let's see if we can fix it.'"
Alexander's Democratic co-sponsor, Sen. Ron Wyden of Oregon, declined to to discuss the issue with Fox News. Instead, his office accused Fox News of "whipping up opposition" to the Lacey Act, and said that outside of Gibson, they hadn't heard of any complaints. Fox News provided his office with the letter from NAMM.
While Alexander acknowledges there appear to be problems with the Lacey Act as it applies to the music industry, Rep. Marsha Blackburn, R-Tenn., said the bigger problem is government overreach.
"It's not about the Lacey Act," she said. "What this is about is selective enforcement, excessive enforcement. It's about lack of clarity, confusion and uncertainty pertaining to a law."
She added that she has heard plenty of anxiety across the country from musical instrument craftsmen and furniture makers, who all feel at risk now that Gibson was raided by armed federal agents.
"Many people look at this and say, 'If it happened to Gibson, could it happen to me?'"
Not surprisingly, all this doesn't sit well with Tea Party activists who organized a large rally in support of Gibson in Nashville on Saturday. Amy Kremer, president of the Tea Party Express, said she can't fathom why the Feds targeted Gibson over wood the Indian government says is legal.
"We believe this is exactly what we (the Tea Party) are fighting against, the big overreach of government. We're simply not going to stand for it," she said.
While the issue has turned political, Berkowitz said he doesn't think it is a matter of Republican versus Democrat. A registered Democrat himself, he said he sees a more ominous picture -- the possible death of the American artisan class.
The modern acoustic guitar was born in America, as was the electric guitar. And while guitar-making is not uniquely American, its most respected manufacturers are in the United States. Gibson, Martin, Fender, Taylor, Paul Reed Smith, Collings, Ribbecke, Breedlove are some leading names on the list.
What's really at stake, Berkowitz said, is history.
"Everything from Gene Autry and Elvis to Pete Seeger and Woody Guthrie. The old American songbook is founded on the steel string acoustic guitar. And that industry is currently threatened by the Lacey Act," he said.