The Yeouido Observer #007: Beavergate

You know, at times I take Wikipedia for granted a little too much. Because, honestly. Without it, how could I possibly launch into a paragraph-long double entendre frenzy with no effort on my part whatsoever, simply by cutting and pasting? Bless their hearts.

“Beavers are known for their natural trait of building dams on rivers and streams, and building their homes (known as “lodges”) in the resulting pond. Beavers also build canals to float building materials that are difficult to haul over land. They use powerful front teeth to cut trees and other plants that they use both for building and for food. In the absence of existing ponds, beavers must construct dams before building their lodges. […] They have poor eyesight, but keen senses of hearing, smell, and touch. A beaver’s teeth grow continuously so that they will not be worn down by chewing on wood.”

By now the dust is beginning to settle on that recent controversy which shall henceforth be referred to as “Beavergate.” This, as many of you know, involved budding startup D., North America’s most prominent legal provider of Korean Dramas (which from here on in shall be referred to as, well, the beavers), and yet another D., along with S. the world’s most prominent English-speaking Korean drama website – which will be affectionately (or not) be referred to as the beans.

Ergo, it’s a tale of 7th grade beavers and civil servant beans. Like Macbeth, but with caffeine and rodents instead.

I will spare you the peripheral details, as you’ll have probably read them elsewhere. I perused several interesting posts over the issue in the last few days, all mostly centering on the same few arguments. I will instead cast a larger net and wildly digress, because context is everything and since the cats are not what they seem, the same must be true for beavers as well. And owls.

The point of contention has so far been limited to the two aforementioned players (beavers and beans), and by some more astute bloggers extended to involve other smaller fish that were either indirectly or directly affected by this controversy ever since last year. But as you’ll soon find out, we’re dealing with much bigger issues for the K-drama community at large, and something perpetrated by much, much bigger fish than these allegedly warring minnows on both sides of the fish… tank. Boy, better stop with the double entendre.

The shitstorm all began with a half-hearted apology:

“It has come to our attention that one of the third parties we use to protect our licensed content inadvertently caused problems for our friends at BEANS. We’re very sorry for any inconvenience this might have caused.

We have taken the necessary steps to reverse any claims made and correct this issue. We hope to continue to have an amiable relationship with BEANS, which provides a valuable voice in the community of Korean drama fans.

BEAVER”

Several took issue with the tone of this thinly-veiled imploration, giving advice to the beavers on how to better entertain themselves by specifically inserting certain body parts inside certain orifices, or by attempting to rechristen them with much simpler monikers. Like poo.

But as far as these mysterious third parties go, I am not only willing to believe their claims, I even have proof that essentially legitimizes them.

PROTECT YOUR FILTHFLARNFILTH

In between bouts of bratwurst scavenging at the Oval Office, the Clinton administration passed the Digital Millennium Copyright Act on October 12, 1998. The excuse was implementing provisions of the WIPO (World Intellectual Property Organization, a sort of Bilderberg of copyright) and offering right-holders a swift notice and takedown procedure with which they could protect their intellectual property. The catch is that this system is often abused as a legalized bullying tool to silence criticism, stifle freedom of speech and impact your competition without incurring hefty expenses – as there are certainly provisions to file counter notices, but they’re nothing more than subtle suggestions to cease and desist, as resistance would not only be futile but quite often very costly as well. In the past you’d have to actually sue the evil mob that dared to contest your place on top of the pantheon and bring solid evidence to the table. Now you just send them an automated complaint that threatens to obliterate them to kingdom come, and oftentimes everything is solved without any hint of oversight or the least amount of veracity-checking (since blogging platforms and webhosters rarely stop to ponder and question whether a big corporation’s claim might infringe upon the rights of the little man, what with their kinda sorta being a corporation in their own right). How swell.

Automated is the keyword.

In most cases, corporations will not actually file every single DMCA notice by themselves, but will entrust this demanding task upon a third party. That is, a LLC that will handle the job for them for a fee – these can be called Remove Your Yada Yada LLC, Protect Your Something LLC, Fight Piracy And Stuff LLC and whatnot. They’re very dedicated and hardworking enterprises that will scan the net for every little piece of infringing content via automated spiders and virtual meta tag hounds, and then come up with long lists of alleged infringers. Inevitably, false positives will emerge, as this kind of procedure is almost bound to show its limitations. This means that – in our case – an illegal video platform screening a film in its entirety (and benefiting from advertising revenue at the expense of its right-holders) and a random, non-profit blog on Blogger or WordPress using the film’s poster for a review, recap or even simply a collection of images could end up in the very same “hit list.” And be obliterated without recourse, the possibility or even the need to file a counter notice (since the actual DMCA procedure would only entitle the right-holders to request the removal of the infringing material alone, whereas most blogging platforms will just delete the entire blog and get it over with): even in the case you’d get your subdomain back, the data would almost certainly have been wiped out already. Even if the infringing material only covered 0.01% of the total.

The problem with the latter being pigeonholed as infringing is that this, in itself, violates the fair use provisions sanctioned by 17 USC § 107. Let’s just cut and paste since laziness is man’s most underappreciated virtue:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

What this means in layman’s terms (and I do understand the irony of using such expression while being a layman myself), is that for a review or recap not to be protected by these fair use provisions, it’d have to be of a clearly commercial nature. That is, if I put an e-book full of reviews featuring materials (images, posters) from said copyrighted work on sale, the fact I was making a profit off of it without the rightholder’s permission would obviously disqualify my every claim of being protected by such fair use provisions. But how about recaps and/or reviews on an ordinary free blog, or a site that features ads that for the most part are used to pay webhosting costs? Does fair use discriminate between the good faith of someone who only uses ads not to lose money on a popular site and the bad faith of the budding offshore “streaming kingpin” who will serve you dramas littered with plastic surgery alongside penis enlargement ads? That’s the question.

What interests us in this case, though, is whether the beavers were using third parties to make people respect their authoritah. As is often the case with this kind of “content startup,” the bigger you get, the more DMCAs you’ll have to eventually file. And that’s when the pondering and discrimination begin to fall by the wayside. Let’s check Google’s Transparency Report to shed some light on their modus operandi.

MY SOJU IS YOUR POISON

The first DMCA notices were actually filed by the company itself, in what now will look like a remote August of 2011.

Nothing anyone would object there: 160 links from the now defunct mysoju.com, most likely in relation to TV dramas the beavers had acquired the rights to stream, and one more from xmarks.com. The same routine would continue for a few days and another half dozen similar DMCA notices, mostly featuring the same names (illegal streaming platforms I will not bother to advertise here. They’re just as deleterious to the scene and the community at large). This is a clear sign that someone from the company was checking these links, and discriminating, distinguishing whether the site in question posed a threat to their longtime survival or not. Illegal streaming platforms would certainly fit the bill. Random subbers, reviewers, recappers most likely wouldn’t.

It doesn’t even stop at that. They didn’t have much of a problem with the scene itself, either — even if it was only in the form of one of its indirect, overseas “cousins,” like D-Addicts. Take a look at this little piece of evidence, from two years prior.

“Spreading the joy of Asian dramas to the world.”

The joy. Like, Dude. Whoa. The joy. Back then someone within the Beaver Empire realized that these people weren’t evil pirates intent on bringing down their future livelihoods, but just ordinary girls and guys who just wanted to spread a little culture in an area which had no appreciable distribution. I’m kind of punctilious and begin to digress when I hear important keywords, so let’s add some more evidence to this idea that “we were kosher” back then.

It was the summer of 2009. Canapy Trap, Li Xiaochang’s brilliant digital media blog, interviews our “friends” in a long and fascinating debate on the state of K-drama distribution back then. It actually prefaces this interview with an introduction, in which an important detail is mentioned – the, how should I put it, “street cred” factor involved in all this enterprise, the “following the grass roots” mantra which had seemingly guided this startup from day one.

“At the outset, they seem to be taking the right steps in engaging with the fandom at large, having announced the beta through a number of Korean pop culture and drama fan blogs and encouraging people to submit requests for dramas that they would like to see the site host. In addition, though most of their subtitles are provided professionally by the content producers and broadcasters, they are also said to be in talks with popular K-drama fansubbing group With S2 to provide subtitles for less established dramas.

This move to collaborate with fansubbers is particularly inspired as fansubbers determine what is available and when, thus determining in many ways which dramas become popular with international audiences. In addition, fansubbing itself and the social protocols around circulating fansubs are taken very seriously within fandom.“

Much more illuminating comments would emerge from Li’s conversation with these esteemed gentlemen.

“Sure. Right now when we launched the beta, it’s essentially to make sure we get the core experience right — to put it simply: that you can watch dramas and [the experience] is high quality and enjoyable. And we for the most part accomplished that. Some of the features we want to build on are really to build on the experience. So you’re watching a Korean drama and you want to know everything about it, so there will be ancillary assets like pictures. You could have fun playing with, maybe with simple downloads, or you could add your pictures to pictures with actors. There’s also an opportunity to become an aggregator for news related to Asian entertainment that’ll help people save time and discover all these cool blogs that are out there that you would know if you spent all your time hanging out at Soompi, but which for the most part are sort of obscure. We would be a place that brings all of these good blogs to light and help people discover them. And there’s all kinds of stuff we could do around adding all this meta-data to dramas and actors and a lot of people could really engage in the storylines and really be able to discover new stories and really feel like they’re getting to know a certain celebrity. So, lot’s of ideas. “

Awww.

“Mysoju.com is a good example. I mean, these guys are blatantly ripping content left and right from every major Asian company out there, and if you notice they break stuff off into parts and if you’re watching something, there’s parts missing, the subtitles are weird, the quality is different because one part is on Veoh and another part is on Youtube and so forth. Yet people are still watching it. And there’s another set of people who are basically downloading through bittorrent. You click download before you go to bed and when you wake up you have a new drama to watch and then they go and find some fansub on a different site and figure out how to merge the two. So in spite of all these problems, there’s still a fair number of people who are consuming content this way. So the assumption was, what if you make this site very easy to use, what if you make it very high quality, and what if you just make the overall experience great. You could probably grab that audience and get more, and we’re starting to see some of that even at this very early stage.”

Right. Offer something the dirty pirates (allegedly) couldn’t: quality and accessibility, all in the warm embrace of a legal framework. Plus you could still go to church and watch Hyun Bin without feeling guilty. Hallelujah.

“To be totally candid with you, we don’t really look at Mysoju or some of these illegal sites as real competitive threats because they’re filling a market need at this moment and the market need is that there’s a demand for this content. If a legal provider isn’t going to put it together in a way that’s accessible, someone is going to put a simple HTML site together where you can watch it illegally. And the experience is the same as with American mainstream media. Before Hulu and Apple and a lot of these other places started distributing digital content in a legitimate way, there was stuff all over Youtube and other illegal sites. And as soon as legal platforms started taking off, that stuff started disappearing. Mostly organically, some of it due to DMCA notices, but it’s not a sustainable model in the long run, when you’re operating a media site in a completely illegal way. Quality wins in the long run, that’s what we believe.”

I….nteresting. Innit. The dirty D word is mentioned here for the first time, in 2009.

“Well, I mean, the basic mindset is that the fansubbers exist because there’s a void in the market that isn’t addressed. So these are true fans. These are people who are very passionate about being able to enjoy this content and being able to share with others. And once you look at them in that light, they’re your best allies. So a lot of the content that’s coming out of Asia, [major producers] are only creating English subtitles for the ones that are selling through DVDs and it’s only a small subset of the content that’s being produced. So over time, as we start ramping up our site with a pretty broad selection of content, it only makes sense to work with these fansubbers because they’re also the audience. So the key point that I want to emphasize is that we want this to be a very community-driven site. We’re making our content selection, we’re making our functionality development choices really based on what we’re observing out there. We’re simply reacting to a market need and what the market is telling us.

[…]

Yeah, if you look at the fan community sort of as the Open Software development community, these are very talented, passionate individuals. And for the most part, they’re looking for some recognition for the work that they’re doing. And we think we could be a platform that could provide them with that, while addressing a very real need, which is creating a place where people can consume Asian content with English subtitles so that they can understand it.

[…]

So when we say that we work with fansubbers, it’s not that we go to d-addicts and download fansubs and putting it up on the site. It’s going to be done in a way where we talk to them and set down some business terms that are acceptable and that both parties can be happy about.“

Ahah! The fansubbers, you say. Sniff… I used to parade around that neck of the woods, once upon a time.

“I mean, if you just look at the web in general, it’s not a zero-sum game. Just because you have a community about a particular subject doesn’t mean that no one else could have it. The approach that we’re taking is that we’re not trying to become d-addicts nor are we trying to become mysoju or soompie [sic] or any of these other existing places where people are hanging out. […] So, we’re not going to go out and create a wiki because that’s already being very well addressed by d-addicts, and the people who are going to d-addicts are also our audience members and the people who are running it are potentially our friends and our partners. So when we talk community, we’re talking offering features unique to our site.”

You know, it’s hard to argue anything at all when you’re presented with such arguments. If someone knocks at your door and honestly tells you “We want to integrate with you, complement what you do in this community, and bridge the gap with the other side (the broadcasters), so that they will stop looking at you as a nuisance to slowly eliminate, and begin respecting you for what you are. The heart and soul of this cultural phenomenon.” What could you possibly say to that? Act all snarky and go “Yeah, right. Enough with the condescending BS and show me the money”?

(I would have… Then again, I’m a cat person. We don’t take orifice-slurping tirades too well.)

I myself as a longtime former subber of a certain group (let’s call them W) had experienced first-hand what their initial approach was, but I was always a little leery about their true intentions, suspects I always had been rather vociferous about with that subbing group’s two lovely leading ladies (Hi girls. Long time no C). I’m not at liberty to disclose any arrangements which were made between the two parties (in particular because I only have circumstantial evidence), but these “business terms the two parties can be happy about” always smelled of lip service more than anything, at least as far as I’m concerned.

I mean, if you give me a donation every time a new Pope is elected (Habemus Papam! Hurray! Now hide all the kiddies) and assorted freebies and the other party’s leadership is happy with that, there’s nothing the inquiring laborer a little bit lower down the totem pole can say to change that. But the fact you’re not actually making any traceable financial transaction with this entity (if not for a very vague and conveniently ass-covering “donation”) operating in a gray area means that your books will remain clean. Why does that matter? Well… wait a few paragraphs and you’ll find out.

The first indication that the shit was about to hit the fan came with a particular show in 2009. Let’s call it Fowls – Our Legend. This was a glorious little gangster drama about rather masculine fowls subtly fighting each other over a female’s choice of bedchamber companion, surrounded by Busan’s changing cultural landscape of the 1980s and 1990s.

See, the problem was that… how should I put it? The subtitles sucked roasted fowls on a skewer. I mean, seriously. You could have run the script on Google Translate from Korean to Esperanto, back to Swahili, then to Swedish, Ethiopian and back to English, and it would have made more sense. Perks of translating from the Chinese and not the original Korean, but I’m not about to get into an argument about the purity of the lost art form that is subtitling. And you’re already thinking “Fuck you, you pretentious piece of filthflarnfilth” as it is, so why bother.

Sure enough, our leading ladies and yours truly were made privy of this rather lackadaisical state of our fowly subtitles either directly or indirectly, to which I responded “Let me handle it.”

Mind you, this would have been a terribly daunting show to tackle for anyone: we had no scripts at our disposal, the cinematography and sound recording was film-like (almost no studios and little ADR), and when you have people like Kim Min-Joon eating up half the words he’s saying as it is, it’s hard to come up with a reasonable translation of something that was littered with local dialect, obscure slang and too many cultural references for the average subber to pick up.

I volunteered because Busan was pretty much my second home, but I’d soon come to regret that. My work for that show was pretty much abysmal compared to my usual standards, but at least it was a small improvement over what viewers had been subjected to up to then. Now things made at least a modicum of sense.

What we asked was for the beavers to give us a little time so that we could finish the last half dozen episodes (which had stalled for weeks, exactly because of the aforementioned translation difficulties), nothing more. We’d let people finish the show with the new subs, and then go back and do the remaining 15 or 16 that had been already released from scratch. It certainly wasn’t ideal, but it would have worked. And I myself worked with the assurance that I would be given time. Now if that’s something our leading ladies made up to reassure me, or if the beavers actually promised they would wait, I could not possibly know.

Still, I worked on those subtitles. And then the shit hit the fan.

“Hi, we just replaced all the subs with new official versions from MBC. This drama contains lots of difficult words, and was hard for even With S2 who usually produce outstanding work. In any case, the new subs we uploaded today do a good job of conveying the dialogue. Enjoy! ”

This happened arbitrarily, without a single mention, right as I was working on those final episodes. Better yet, the show was completely canceled from their lineup the moment I launched an “internal” shitstorm over at W, although I seriously doubt that’s the reason behind the show’s disappearance. Still, if this “disclaimer” smells of the same complacency these folks handled the latest DMCA debacle with, don’t blame your nostrils.

But to get back on topic, at least until 2010 our beavers acted serenely, as seemingly respectful neighbors of what was already by then a tightly integrated community. Fast-forward to a little article.

“Now the company has added some big media companies to the round, including AMC Networks and Bertelsmann Digital Media Investments (part of German media giant Bertelsmann AG). The extra money brings the Series B to $6 million and [their] total funding to $7.8 million. The other new investors are NALA Investments (which manages investments for the Diez Barroso Azcarraga family, founders of Televisa and Univision), Machinima CEO Allen DeBevoise, and LowerMyBills.com CEO Matt Coffin.“

So if you want an explanation for all the onslaught of Argentinian makjang on the site, there you have it. Arriba Latinos! And this also explains why any mention of D-addicts, fansubs or any other gray-area establishment completely disappeared from beaverland from there on in. It’s as if they were never there in the first place. Community? Pfft? Integration? Quoi?

This is all pretty normal: you launch a startup, and wait for money to pour in, milking the cow until it becomes a profitable giant and you can sell it to a bigger corporation for seven-to-eight-figures. But of course with corporate money come corporate obligations and standards to abide by: no corporation is going to fund you unless you establish some kind of legal firewall around the products you sell. And cut some problematic ties loose right away.

Remember the DMCA notices the beavers used to send on their own, that lonely half-dozen in 2011? They reappear magically on Google Transparency Report’s radar on November 2012, this time entrusting their work to one of the aforementioned, uh, “third parties.” First day on the job gives us a staggering 1924 URLs inside a single complaint, encompassing everything from cyberlockers to torrent sites and even the poor Pirate Party UK. What could they have possibly posted that irked our proud content hounds? You can check for yourself how busy they’ve been since then, with a total of 18,888 reported links.

So yes, a third party is to blame. Maybe their employers forgot that this third party’s automated spiders would include their friends over at D-Addicts (spreading the joy of Asian Dramas all over the world), or that they would eventually file takedown notices against those fansubbers (the mighty W) who they wanted to offer business terms they could be happy about. But what the hell, man. Don’t be so nitpicky. They didn’t lie. It’s the third parties’ fault, and a robot doesn’t exactly know that you don’t defecate where you eat unless you tell him not to.

But I wish it could be this simple. I wish it were only a matter of your usual hotshot corporate boyo trying to embellish his startup to then sell it (alongside any interest of his for the community or the culture that sustained its business) to the highest bidder. I wish it were only a matter of organizing a grassroots backlash to protest against the unfair targeting of a major staple of said community, while hypocritically ignoring everything else that had been (and will be) perpetrated up to this day (because the shit won’t actually hit if you don’t turn on the fan, right?).

This is bigger than a mere startup. Bigger than a popular site being unfairly targeted. It’s bigger than most of you could conceivably imagine. It involves sinister trade agreements and freedom-stifling approaches to the protection of intellectual property, and an environment that will eventually get so restrictive as to cause the raging war that’s being combated underground to become a much more mainstream entity.

TO SERVE AND PROTECT (THE POWERS THAT BE)

Sometimes you’ll head to sites like Torrentfreak and read of how ridiculous copyright enforcement can become. Raids against 9 year old possessors of Winnie The Pooh Macbooks or DMCA notices filed against network printers are only the tip of the iceberg, and tell the story of a moribund industry trying to hold on to its fossilized business model by any means necessary, even if it might ridicule its legacy (pun intended) even further. But when it comes to copyright fundamentalism, Korea is near the top of the totem pole.

This of course has not always been true. In my 응답하라 1997 (Reply 1997) review, I narrated of how the glorious 짜가 (jjaga) of the 1980s and 1990s would turn counterfeiting into a sort of art form. Interestingly, Korea’s laissez-faire attitude towards copyright began morphing into a much more aggressive stance only when the government began to negotiate a free trade agreement with the United States (the dreaded KORUS FTA). Now I will spare you the details of the negotiations, but the consequences turned one of the most open network infrastructures in the world to a virtual rendition of Taliban society, with masked corporate figures leading the pack with their incessant lobbying.

“But it can’t possibly be worse than Hadopi,” the French will say. Nuh-uh, Korea has a three-strikes policy, too, the only difference being that there is no judicial oversight whatsoever: the copyright holder hands the ISP alleged proof of infringement, and at the third instance you’re zapped. Admittedly, there had been a dearth of disconnection sentences (only a few hundred a year, in a country where nearly 80% of the people have a fast broadband connection) up to this year, but that was only to favor another lobbying group. Which leads us into…

“But surely it can’t be worse than the legalized extortion scams perpetrated by ACS:Law in the United Kingdom or a host of different law firms in Deutschland,” our British and German friends will comment. Nein, Korea has it even worse. Not only is there a booming self-made industry made of law firms specializing in these extortion scams (as in, we scour P2P networks and webhards looking for infringing content, find it, and blackmail you with extortion missives you will have to pay in order to avoid further legal litigation), there are even sites (like Cinetizen) where the ordinary citizen can become a ”virtual vigilante” ratting on their neighbor or any IP they might find scavenging around P2P networks, often for a compensation.

“But come on man, who are you trying to fool? It’s not Iran or China here, where they’ll filter and ban anything out of the blue, and seemingly on a whim?” Again, they’d be wrong. A copyright lobbyist gives a call to the right cyber-apparatus in the government, and voila! A site can be redirected to warning.or.kr in a matter of hours, without judicial oversight, without any debate in parliament, without even having to offer justifications. And among the thousands upon thousands of sites sentenced to oblivion via DNS poisoning are not only your average torrent site, but also sites accused of North Korean propaganda and anything that might not be kosher with the new junta’s creed. When you’re lucky enough to avoid incarceration, Minerva docet.

Do we actually have any proof of this? Afraid so.

Some of you might be aware of the existence of a certain Special 301 Report, a bonafide corporate manifesto redacted every year by the United States Trade Representative, in essence trying to “encourage” foreign governments to comply with their copyright and trade policies. Non-compliant countries run the risk of being included into a watch list (or, if they’re persnickety villains of the lowest kind, a “priority watch list”) which sounds like empty-rhetoric, but can actually translate into serious consequences like trade sanctions and WTO disputes for non-compliance with the TRIPS agreement (Trade Related Aspects of Intellectual Property Rights).

What was this Special 301 report requesting, for what concerned Korea? For instance, the removal of Chungmuro’s infamous screen quota, which from its 1967 rendition onwards mandated that Korean films had to be screened for at least 146 days a year – acting as a sort of psychological Linus’ blanket for the industry, as with a quota in place an investor would be more inclined to risk than if confronted with the reckless competition and survival of the fittest which dominates today’s industry. Meaning more diversity, the same which fueled Chungmuro’s creative boom in the golden 1996-2006 decade.

The usual government-fed mantra suggests that the advent of chaebol like CJ and their vertical integration in the 2000s pretty much eliminated the need for any protection, but if you look at how much pressure Korean governments suffered at the USTR’s hands, it’ll help direct your attention elsewhere.

Look at their 2001 report, for instance (a full five years before the screen quota was reduced to 73 days).

“For many years, the U.S. motion picture industry has been frustrated by a substantial legal barrier to the theatrical exhibition market in Korea. Under Article 19 of the Motion Picture Promotion Implementing Decree, cinemas are required to show Korean films 146 days per year on each screen, which amounts to 40% of the time. While this screen quota can be lowered to 126 days if cinemas exhibit local films during four specified holiday periods, or under other circumstances if determined by the Ministry of Culture, even at this lower level the quota is an unjustified market entry obstacle which also discourages investment in modernization of Korea’s screening facilities. It should be phased out quickly.

When this issue was under active negotiation as part of the US-Korea BIT negotiations, the Korean side indicated that it anticipated reducing the quotas as soon as the Korean film industry started to recover from its deep slump. That recovery is in full swing; Korean titles are doing well at the box office and have a fast-growing share of the Korean theatrical market. The time to begin sharply reducing the screen quota is now, so that U.S. motion picture producers will begin to enjoy fairer and more equitable market access in Korea.”

They unabashedly continued with the 2002 report.

“For 36 years, the U.S. motion picture industry has been frustrated by a substantial legal barrier to the theatrical exhibition market in Korea. Under Article 19 of the Motion Picture Promotion Implementing Decree, cinemas are required to show Korean films 146 days per year on each screen, which amounts to 40% of the time. While this screen quota can be lowered to 126 days if cinemas exhibit local films during four specified holiday periods, or under other circumstances if determined by the Ministry of Culture, even at this lower level the quota is an unjustified market entry obstacle which also discourages investment in modernization of Korea’s screening facilities. It should be phased out quickly.

When this issue was under active negotiation as part of the US-Korea BIT negotiations, the Korean side indicated that it anticipated reducing the quotas as soon as the Korean film industry started to recover from its deep slump. That recovery is in full swing; Korean titles are doing well at the box office and enjoyed an unprecedented share of the Korean theatrical market in 2001, approaching 50% according to Korean government estimates and press reports. This far exceeds the 40% box office share that Korean officials in formally indicated that domestic films must achieve before the screen quota could be relaxed. The time to begin sharply reducing the screen quota is now, so that U.S. motion picture producers will begin to enjoy fairer and more equitable market access in Korea.”

Gee, they had the courtesy of cutting and pasting only the first portion.

And guess what? 2003, 2004, 2005. They did change the year at the beginning! When I was seventeen, It was a very good year….

So the Roh Moo-Hyun administration caves in, and the screen quota is reduced. After giving the US a major bone, you’d think that their 2006 301 Report would start with a bit more levity and commend Koreans on their efforts, while at the same time removing the country from their imposing watch list. But alas

“IIPA recommends that South Korea be placed on the Watch List, with an out-of-cycle review to determine whether book publishing and music industry issues have been adequately addressed, or whether a higher designation is warranted. On February 2, 2006, U.S. Trade Representative Rob Portman announced the U.S. Government’s intention to negotiate a free trade agreement (FTA) with the Republic of Korea. The negotiations are expected to commence in the coming months (after the expiration of a 90-day consultation period). Just prior to the FTA announcement, the long-standing motion picture screen quota issue was resolved, and it is hoped that an FTA with Korea will bring resolution to many other issues, including many discussed herein.“

After which follows a long list of menacing requests. As in, you give them the finger, they chew all the way to the shoulders and ask for more.

Of course the screen quota issue is only the tip of the iceberg, as you can read on all those yearly reports how instrumental the USTR was in fostering the “virtual police state” Korea has become. This had become all the more evident under the Lee Myung-Bak government – what with their penchant for laissez faire market deregulation and a tendency to turn culture into soulless export goods. Under the guidance of its Minister of Culture, former actor Yoo In-Chon, Korea launched a ruthless war against piracy that eventually resulted in the country being omitted from any Special 301 list for the first time since 1989, back when the jjaga would sell fancy sneakers by Nice and Pama, or apparel by Adidos and Empornio Ormoni.

Was this an ethical war against a plague affecting Korean culture, or a last-minute desperation move to avoid a ticket to WTO disputes? Wikileaks sheds some light on that.

“AMB phoned Minister of Culture, Sports and Tourism MCST) Yu In-chon on April 30 to inform him that the USG would remove Korea from the Special 301 Watch List in the Special 301 announcement in Washington later that day. Minister Yu said he was very happy to hear the news, and was pleased that the USG had recognized the priority that he and the ROKG placed on IPR protection, as well as the progress Korea had made in the past year.

  • (SBU) Econoff subsequently called on MCST Copyright Policy Division Deputy Director Shin Jong-pil to deliver reftel demarche points (verbally). DD Shin said he was delighted to hear that Korea would be removed from the Watch List. Shin noted that both MCST Minister Yu and President Lee have made IPR protection and enforcement a high priority, and added that for MCST, "on the frontlines of IPR protection," IPR will continue to be the (emphasized) key policy issue. Shin added that Minister Yu, at a recent press conference marking his first anniversary at MCST, had reiterated the importance of IPR protection, noting it benefited both domestic and foreign industry. Other Copyright Policy Division officials expressed pleasure at hearing that Korea's work to improve its IPR regime was being recognized in this manner, and pledged further cooperation on IPR protection and enforcement. Econoff pointed out that Special 301 was a yearly designation, and could be reversed if recent improvements were not sustained; Shin said he understood that, but reiterated that MCST was committed to continued strengthening of Korea's IPR regime.
  • (SBU) Econoff also called MOFAT North American Trade Deputy Director Ha Dae-goog to convey demarche points (verbally). Ha said this was welcome news, and that Korea's coming off the Watch List would be viewed as both substantively and symbolically important (it is widely known in Korea's IPR community that the country has been on some level of the Special 301 Watch List every year since the 1980s). Econoff pointed out that Special 301 was a yearly designation and could be reversed in later years if recent improvements were not sustained. Ha asked if there were precedents for countries returning to the Watch List (Econoff explained there were). Ha said the ROKG would be following up on the USG's concerns, and said he knew online piracy was a particular concern for USTR and U.S. stakeholders. Ha noted that MOFAT and MCST would work together on a press release welcoming the Special 301 designation, and would release it on May 1 Seoul time following the official announcement in Washington.“

Yoo was so happy, he even told this to openly progressive Kim Je-Dong in an interview about his tenure as Minister of Culture in that cadre of evil Bolshevik scribes known as the Kyunghyang Shinmun. Must have really been elated.

– 성취감을 느낀 정책이 있다면.

“지금 나보고 ‘너 어떠냐?’ 하면 늘 모자란다는 생각을 합니다. 제동씨도 마찬가지잖아. 모자란 게 있으니 계속 열심히 하는 거죠. 아직 진행형인 것들이 많아요. 문화분야는 정책의 효과가 나오자면 시간이 걸립니다. 다만 저작권 보호 문제는 잘한 것 같습니다. 창작물 보호를 위해 법도 바꾸고, 단속도 많이 했어요. 작년에는 우리나라가 저작권 감시대상국에서 해제됐죠.”

– Any particular policy that gave you a sense of accomplishment?

– If people looked at me and said “how you feel about your tenure,” I’d always reply that there’s still a lot of work to do. The same goes for you, Je-Dong. It’s because there are things you need to improve on that you continue to struggle and work so hard. A lot of it is still work in progress, in a sense because any policy dealing with culture always takes its time to reap any rewards. Still, if I had to single out any particular policy, I think we made some serious progress for what concerns intellectual property. We amended laws regulating the protection of IP, and were also very active in terms of enforcement. Last year we were even taken off the Priority Watch List.”

Aww. He said the magic word. So you didn’t just cower under the thinly-veiled threats of the trade bully, it was the result of a conscious effort to improve your cultural sector! How serendipitous.

FIRST RULE OF FIGHT CLUB

But what exactly does this enforcement and “network police state” mean for you, the overseas K-drama viewer? A lot and very little at the same time.

A lot because while you fight the brave fight to protect one important part of the community, the real bone of contention lies elsewhere, and it’s exactly the bigger picture those DMCAs by the beavers cannot explain by themselves. Now of course it’s an imperative for any business, particularly one involved in content distribution, to protect its investments (especially when the money you’re handling comes from huge names like Bertelsmann). But I’m not entirely sure this sudden aggressiveness on their part was only mandated by corporate interest – as in, the true rightholders are doing even worse, not only in Korea.

Let’s go back to Google Transparency Report and look at, say, a little company known as CJ Entertainment.

Note that CJ means films they produce and/or distribute, it means TV dramas produced on its cable channels (tvN, OCN, Mnet, Channel CGV et al), and all the ancillary business branches they own. What’s fascinating about a lot of their 26,000 plus DMCA notices (again handled by one of those famous “third parties”) is that a significant number of those URLs weren’t removed at all, because even Google realized that they’re nothing more than false positives.

Sure enough, I see BEANS among them.

Was it comments directing the public towards illicit sources of said material or just, you know, movie posters and screengrabs? Who knows.

What CJ Entertainment is doing is something that this debacle might have brought to the surface only now, but had been happening for a good year: not only are illegal video platforms targeted, but also simple communities (the big – corporate – S and its evil torrent links), fansubbing blogs (Wink Wink), little recapping sites that only post a few screengrabs and who knows what else in the future. There is no regard for fair use simply because the DMCA notice is used as a legalized bullying tool: who in his right mind would launch what might become costly litigation only to prove a point and to uphold certain principles? How many of those little blogs that were trampled upon by CJ’s business antics will bother to put up a fight all by themselves – when a class action supported by something like the EFF would make a lot more noise?

They’ll continue bullying the little guy because they can. And now that the big fish has been attacked, they’ll get smarter and work around the issue while avoiding such conspicuous PR fail. Because this is all this debacle amounts to them.

But we’re actually bearing very little brunt when it comes to this war on piracy (which is nothing more than a war for control of distribution, and has no ethical basis): it’s the ordinary guy in Korea who mostly does.

Some rather impressionable participants of this shitstorm might have suggested that the recent carpet bombing of certain Korean open trackers (and brief disappearance of content from certain venues) has something to do with our beans vs beavers diatribe. But, as anyone even remotely acquainted with Korea’s scene (and if you don’t know what I mean by scene… it’s that first rule of Fight Club) will know, they have nothing to do with this. Nothing.

What this boils down to is the Korean government trying to solve the piracy “problem” by blindly increasing enforcement and pathologically ignoring how smart Korean netizens can be – particularly our scene brethren. Every six months or so there will be a major raid on certain webhards (Korea’s own cyberlocker alternative), there will be new legislation sentencing teenagers who downloaded lousy K-pop to “re-education” and hefty fines that are never talked about by the press, because they’re in cahoots with the corporate circles and law firm lobbies that made such legislation possible in the first place. I know of parents from lower-middle class families summoned by the cyber-police because their children downloaded a few movies, slapped with fines that often tripled their monthly income, and forced to attend humiliating re-education courses that treat you like an amoeba in need of a few extra cells.

It’s become like monsoon season: every year you can expect the usual round of rhetoric against piracy (using the same stale arguments, the same intellectually corrupt “lost sale” numbers, surrounded by the same fatalist, fearmongering propaganda concocted by people who don’t realize that everything around them is crumbling and they need to adapt or they will perish), the same few carefully chosen actions against certain sites (this time it was a bonafide injuction intimidating most open torrent trackers to eliminate their TV sections) to elicit fear in the hearts of the masses and to direct them to legal alternatives – that will exploit people who actually do a better work (in quantity, quality, scope and diversity) than the broadcasters at presenting their own content, the encoders; nickle-and-dime customers out of the blue and without any explanation, since the only leverage here is on the broadcasters’ part, and they can raise prices without fearing any competition (as they’re the only legal game in town); conveniently “lose” their customers’ personal data every few months, which in case of a Korean citizen means the equivalent of your social security number. Because, see… ethical snafus are only trouble if you’re not holding the knife by its handle. Because our affair is their romance.

But of course the hydra continues regenerating newer, more evasive and elusive heads the powers that be will have an increasingly hard time coming to grips with. And assaulting such open targets can only amount to doing target practice at your own feet’s expense. Because you castrate webhards and people move to torrents, you castrate torrents and people move to the cloud. You hit the ordinary ripper who trembles in fear at the sight of such legal mumbo-jumbo, and the veteran scene encoder laughs at you from his impenetrable fortress hosted offshore. All the while new legions of encoders join the fray and multiply, discover new venues where to distribute their content and how to interact with the community the right way. All the while the overseas community catches on, and helps them spread the wealth.

This is the point: we were here before you, and we will continue to flourish and prosper even when you’re gone. It’s not about any sense of misplaced entitlement, about copyright regimes, about DMCAs or ad-hoc legislation that ignores basic tenets of freedom and democracy, or about the allures of wealth your little startup toy conjures up. It’s about the honest spreading of culture by a community that cares about its sustainability past a few corporations’ quarter earning reports, the fair remuneration of the people actually responsible for it (boy, I should write a post about how much of that money really goes back to the drama industry one of those days) and the singling out of people responsible for its sometimes wondrous legacy. And about making it accessible to everyone, everywhere, without any clause, any distinction, any time-lapse, any fine print.

Once you realize that and adapt accordingly, we’ll be friendly and support you every step of the way, even with money out of our pockets – and this is spoken by someone who to date has spent over US$ 100,000 on the legal content you so egregiously try to isolate us from, so obsessed with pipe dreams of artificial scarcity as you are. Otherwise you’ll perish along with your obsolete business practices.

And the scene, this community, and the power it can together muster, will unmercifully spit on your grave….

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