By John Seay, Atlanta Entertainment Lawyer (@TheSeayFirmLLC)
Late last year, I was contacted by an acquaintance of mine who – knowing my background in intellectual property – wanted to tell me the story of her friend, a Paraguayan writer named Nelson Aguilera. She told me that on November 4, 2013, Mr. Aguilera was sentenced to 30 months in prison for allegedly plagiarizing portions of a book by another author – an author who just happens to be the sister of a prominent Paraguayan judge.
Even if the allegations that led to Mr. Aguilera’s imprisonment were true, his story would be newsworthy. Although the United States Copyright Act does provide for criminal penalties, the infringement must be intentional and deliberate, and the value of the infringed works must exceed $1,000 in any 180-day period. And even then, judges are hesitant to apply criminal penalties unless the offense is particularly egregious. For example, in 2013, a man was sentenced to 87 months in prison for infringing the copyrights of more than 1,000 software programs. Officials referred to the man’s illegal website as “one of the largest for-profit software piracy Web sites to operate in the United States.” He also made numerous false statements throughout the investigation and didn’t pay taxes on the more than $4 million he made from the infringing activity.
But the penalty in Mr. Aguilera’s case is especially draconian from a United States copyright perspective because what he was accused of doing wouldn’t even constitute copyright infringement in the United States, much less warrant significant criminal penalties. Mr. Aguilera’s sentence is not just a miscarriage of justice, it is a human rights violation. I’ve tried to reproduce the facts of the situation based on my email correspondence with Mr. Aguilera and his friends. However, I am still gathering information and so will update this post accordingly from time to time.
Background: The Allegedly Similar Books
In April of 2010, Mr. Aguilera published Karumbita La Patriota, a children’s book about the Paraguayan Independence of 1811. The main character of the book is a time-traveling tortoise named Karumbita. In Karumbita La Patriota, Karumbita travels through time to meet the patriots who participated in the Paraguayan revolution, for the purpose of teaching Paraguayan children how they gained their independence from the Spanish. The book is the second one by Mr. Aguilera to feature the time-traveling tortoise. What Mr. Aguilera didn’t know was that in 2005, a woman named Maria Eugenia Garay wrote a book entitled El Túnel del Tiempo, about two boys and their grandfather who travel through time to visit significant periods in Paraguayan history. Naturally, the boys and their grandfather visit Paraguay in the year 1811 and witness the Paraguayan revolution.
And that’s where the similarities end. The literary styles and structures of the books are different – Mr. Aguilera’s book was written for children while Ms. Garay’s book was written for an older audience. The characters are different – in fact, they are different species. There are no sentences or dialogue that are the same. The crux of the plagiarism charge is that both books feature time-traveling characters visiting the same time and place in history and describing what they witness. Yes, there are some similarities as to what the characters witness, because both scenes are based on historical fact. Any other incidental similarities are the result of so-called scenes a faire, i.e., standard or “stock” scenes and elements that typically occur in creative works of similar genres. However, copyright protection doesn’t extend to historical facts and scenes a faire.
In the United States, no attorney who knows even the basics of copyright law would have taken this case, and if someone did, then the lawsuit would have been dismissed fairly quickly, perhaps even with an order by the judge that the filing party pay the other party’s costs. And even if Ms. Garay would have somehow prevailed in her claim, no judge would have issued criminal penalties in a case like this. At worst, Mr. Aguilera would have had to pay money damages and remove his book from the marketplace. But, this is not the United States – although injustices surely occur here as well. In Paraguay, Ms. Garay has some distinct advantages. For one, she is the sister of a member of the Paraguayan Supreme Court. I was told that her father was also a member of the Paraguayan Supreme Court. Clearly her family has some political pull in a country whose judicial system, according to Mr. Aguilera and others, has been heavily criticized of late.
The Humble Beginnings of Nelson Aguilera
Although Mr. Aguilera is a writer of some renown in Paraguay, and has published dozens of books, his beginning were very humble. He was born on July 10, 1961, one of five children. He grew up in a riverfront slum. His mother washed clothes for a living in the river. Mr. Aguilera began to recite poems at the age of six at school, and wrote his first poems at 12 and his first plays at 14. He was the first member of his family to make it past elementary school. He has numerous degrees relating to literature and the English language. He has taught at several institutions, and is currently Director of the Faculty of Humanities and Education at the Evangelical University of Paraguay. Mr. Aguilera is now 52 and has a family, including a son who is currently a student in the American Midwest. Nevertheless, in Paraguay his name, unlike that of Ms. Garay, does not carry weight.
The Trial and The Sentence
Before trial, the Prosecutor asked for teachers and experts to analyze the two books for instances of copyright infringement. Those teachers and experts concluded that there was no copyright infringement of any kind because, in Paraguayan law as in American law, historical characters, events, and dates are not subject to copyright protection. Moreover, the writing styles of Mr. Aguilera and Ms. Garay were found to be totally different. However, at trial, the Prosecutor ignored those opinions and instead relied on the opinion of an accountant and literature teacher who said that similarities in literature are considered to be plagiarism. The Prosecutor alleged that there were 43 total coincidences between the two books, but as I noted above, those coincidences were based on both authors’ uses of historical fact and certain scenes a faire typical of the genre.
The trial began in October of 2013. The Judge in the case refused to admit evidence that would have weighed significantly in Mr. Aguilera’s favor. He also refused to hear the testimony of over 40 professors, writers, journalists, and teachers who would have spoken out for Mr. Aguilera. Instead, on November 4, 2013, the Judge sentenced Mr. Aguilera to 30 months in prison for plagiarizing the book written by Ms. Garay.
Since the sentence was handed down, many people and organizations have spoken out on behalf of Mr. Aguilera. Mr. Aguilera’s attorney, Derlis Cespedes, has appealed the verdict to the Chamber of Appeals in Paraguay. Feel free to share this post and, if you’re so inclined, “Like” the Facebook page that was set up to draw attention to the situation. I will be corresponding with Mr. Aguilera and periodically updating this story. Feel free to contact me if you have any questions about the situation.
How You Can Help
UPDATE: Nelson Aguilera has provided me with a form email that interested parties can copy and email to members of the Paraguayan Supreme Court. He believes that emails from interested parties around the world may help his cause. Beneath the Spanish version of the email, Mr. Aguilera has included the English translation. I assume, though, that the Spanish version of the email is the version that you should send. The relevant email addresses are provided immediately after the Spanish version of the email.
From Mr. Aguilera:
1. Please copy and paste the statement and send it by email to the members of the Supreme Court of Paraguay.
2. Don’t forget to write your name and the country where you live.
3. Please ask all your contacts to do the same thing. Thank you so much.
Justicia Para El Escritor y Maestro Nelson Aguilera.
Los derechos universales del escritor y maestro Nelson Aguilera fueron violados por la justicia paraguaya. No se le permitió presentar sus pruebas ni los cuarenta testigos (especialistas en Literatura) para defenderse en el juicio oral llevado a cabo en octubre del 2013. Le sentenciaron, injustamente, a 30 meses de prisión por un delito que no cometió ni fue demostrado: plagio. La fiscalía y los jueces manipularon todo el proceso y consideraron solamente el testimonio de un perito contable y de una profesora de literatura. Ninguno de ellos nunca había realizado un peritaje literario para determinar qué es plagio y qué no es. Es más, no encontraron ni un párrafo, ni siquiera una oración igual entre las obras en cuestión Karumbita la patriota de Nelson Aguilera y el Túnel del tiempo de María Eugenia Garay. Por lo que pedimos la nulidad total y absoluta de todo el proceso y la liberación de todo cargo y condena a Nelson Aguilera.
Justice for the Writer and Teacher Nelson Aguilera
The universal rights of the writer and teacher, Nelson Aguilera, have been violated by the Paraguayan judicial system. He was not allowed to present evidence, nor were his forty witnesses (specialists in literature) allowed to testify in the public trial held in October 2013. He was unjustly sentenced to 30 months in prison for a crime he did not commit: plagiarism. The prosecutor and the judges manipulated the entire process and only took into account the testimony of an expert in accountancy and one literature teacher. Neither of them had any experience in writing legal reports to determine plagiarism. Neither of them found a single paragraph, or even a single sentence to be the same in the books in question: Karumbita la Patriota by Nelson Aguilera and El Túnel del Tiempo by Maria Eugenia Garay. For this reason we request total and absolute nullity of the process, and freedom from all charges and conviction for Nelson Aguilera.
Name: _______________________ Country: _______________________