Presunto Culpable, Censorship Copyright and Philanthropy

Four months ago I published a detailed series of posts looking at internet censorship and freedom of expression in Latin America. One of my objectives was to show that online censorship is much more complicated than just blocking web pages. For example, copyright claims have been used to take down political content, financial regulatory laws have repeatedly been used to silence bloggers in Guatemala and Venezuela, and a high power judge in Argentina filed lawsuits against Google and Yahoo to remove her name (and all others who share the same name) from search results. But I also wanted to emphasize that despite rising online censorship, the Internet should still be seen as an appealing alternative to mainstream media, which is more susceptible to government censorship and influence. We see this play out again and again in Honduras, Venezuela, Nicaragua, and Argentina.

And now Mexico. This week the country’s top grossing documentary – Presumed Guilty – has been pulled from movie theaters following the order from federal judge Blanca Lobo Domínguez who claims that the directors violated the privacy of a witness who appears in the movie. Most Mexican bloggers and analysts view Justice Lobo Dominguez’s ruling as a politically motivated attempt to censor the critical exposé of the country’s justice system. From the William Booth at the Washington Post:

When the documentary “Presumed Guilty” opened in theaters here, many Mexicans saw for the first time the inside of one of their own courtrooms – and they watched the brutal, terrible grinding of the wheels of justice in stunned silence. And now, the story gets even stranger: The movie about the Mexican judicial system is being ordered shut down by the Mexican judicial system.

Booth’s article goes on to quote Mexico City mayor and presidential hopeful Marcelo Ebrard who plans on showing the film free of charge in the city’s largest plaza, the Zócalo: “It is not possible to stop people from watching a film in the 21st century.” Booth also notes that pirated DVD copies of the film “are outselling bootlegs of the recent crop of Oscar winners, an irony that does not escape Roberto Hernandez, a Mexican lawyer and co-director of the film.”

A film about illegality is being watched illegally,” Hernandez said. “But at least people are seeing the movie.”

But Hernandez’s statement – “at least people are seeing the movie” – doesn’t line up with his actions. As Geraldine Juárez writes at ALT1040, when a documentary criticizing the Mexican justice system was then censored by the Mexican justice system, Internet users did the obvious: they uploaded it to YouTube. It remained there for a few days where it was seen by over 220,000 viewers until YouTube received a request by co-director Roberto Hernandez to block the video.

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The important social documentary – allowing millions of Mexicans to observe their nation’s justice system for the first time, and raising the importance of justice reform among legislators – was no longer available in theaters because of the ruling of a federal judge and no longer available online because of the copyright concerns of its director. Hernandez’s decision to block the video on YouTube provoked outcry among Mexican bloggers and Twitter users who accused the co-director of self-censorship and financial greed. Others were more constructive in their response, offering free advice about alternative models of distribution including a congressman’s proposal to stream the documentary for free on the Congressional website or to emulate the successful 1 Book = 1 Euro donation model.

Today director Roberto Hernandez finally responded to all the online criticism with an open letter posted to his Facebook page. Hernandez writes that he – and he alone – asked YouTube to take down the online version of the documentary. He says he did this for two reasons: 1) he believes it takes away ticket sales at the movie theater and 2) more generally, he believes that online piracy is a threat to documentary filmmakers and that Mexico desperately needs more documentarians.

Initially Hernandez and the two cinema companies showing the film had pledged that all profits would go toward RENACE, a Mexican NGO focused on justice reform. In his Facebook posting Hernandez clarifies how the profits will be used. First and foremost profits will be used to protect themselves against lawsuits. An unspecified amount/percentage of leftover profits will go to 1) RENACE, 2) a proposed fund for FOPROCINE to finance quality documentaries, and 3) a new NGO similar to The Innocence Project to defend wrongfully convicted individuals like the protagonist of the movie.

What Hernandez doesn’t mention in his open letter is how the documentary was financed in the first place. The legal entity which received financing for the film, Abogados Con Cameras, is registered as a private company so I am not able to search Guidestar for their total revenue, but I do know that they received grants from the Open Society Justice Initiative and the Hewlett Foundation.

Ironically both Open Society Foundations and the Hewlett Foundation are two of the biggest supporters of Creative Commons because they understand that restrictive licensing limits access to knowledge. They realize that when content is what we call a “public good” it should be made publicly accessible. But neither foundation yet requires that their grantees publish their content under a Creative Commons license. Incredibly, even the US government is now more sophisticated in its licensing requirements of grantees that produce educational resources. [Disclosure: I am a full-time consultant for Open Society Foundations.]

I was critical of the foundations’ decision to not require that Hernandez and his partner, Layda Negrete, publish their documentary under a Creative Commons non-commercial license when it first came out in the United States. Why, I wanted to know, was this important documentary available to Americans who already have a dim view of Mexico, but not to Mexicans who could rally around its content to make a difference? But then it was announced that the film would be shown in Mexico’s two major cinemas with an impressive publicity campaign and that made me re-think my initial criticism. Maybe there are causes, I thought, where temporarily restrictive copyright helps lead to greater distribution and impact.

Now I have changed my mind again. Roberto Hernández and Layda Negrete have produced a wonderful and important documentary, but now it belongs in the public domain, despite their best efforts to control its distribution. Sadly, today Americans are still able to view the documentary video online in its entirety for free, but Mexicans are not:

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It turns out that Mexico City mayor Marcelo Ebrard was right: it really isn’t possible to stop people from watching a film in the 21st century. On torrent websites the film is being actively shared and downloaded. Multiple versions of the film have again been uploaded to YouTube, this time by user pedroleon2020. And, in an interview with Guardian journalist Jo Tuckman, a pirate DVD vendor said he sold ten times as many copies of the documentary than any other movie he sells – a source of revenue for the organized crime groups that control the pirate DVD market, but not for the filmmakers. The Streisand Effect is proven once again – the more you try to censor appealing content, the more it will be made available.

Hernández and Negrete – two individuals I respect deeply – could have taken advantage of this to collect donations and promote crowdfunding for their cause. But unfortunately they held onto their outdated perspectives and estranged many of their most vocal supporters.

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Last year I was sipping on a delicious cappuccino in an upscale San Salvador mall with Carlos Dada – something of a rockstar journalist in El Salvador who directs ElFaro.net, one of the leading online news sites in Latin America. Open Society Foundations’ Latin America Program [my current employer] had funded two years of reporting about migration from El Salvador through Mexico and to the United States. The project produced dozens of compelling reportages from Mexico-based report Oscar Martínez, and eventually lead to the production of a photo book and a documentary film. When the book was published the content mysteriously disappeared from ElFaro’s website. I asked Carlos why the content was no longer accessible and he awkwardly admitted that it was taken down in order to sell more copies of the book. “Well, where can I buy the book then?” I asked. But he said that they were only able to publish a few dozen copies and that they were no longer available in any San Salvador bookstores.

Those two years of reporting include important testimonies to consider during the ongoing debate about migration policy in Mexico. They could be read by thousands of people, including young Salvadoreans that are contemplating making the dreaded trip north to reach for their Hollywood-imagined dreams. Instead the stories are no longer available online nor in bookstores, all because of an outdated view about how to best distribute and finance content.

Last December I wrote a final report of recommendations for the Latin America and Information programs of Open Society Foundations. One of my recommendations is to require that all public interest content financed by Open Society Foundations is published under a Creative Commons license. I am told that discussions about such a policy continue to move forward, but I have learned that patience is a great virtue in the world of philanthropy.

Update: An appellate court has ruled that the movie can again be shown in movie theaters in Mexico. The ruling claims that removing the movie from theaters would damage social interest, and violates the public’s right to access public information, according to Article 6 of the constitution. In other words, it claims that the public’s right to access public information trumps the right of an individual’s privacy. But what about copyright?

1 Comment

  1. Presunto Culpable just show that justice is either for those with money or those that care to enforce copyright. Public Good? not at all. they fail.

    Reply

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