Reporter Makes FOIA Request For Obama's Game Of Thrones Screeners

from the yeah,-that's-not-going-to-work dept

Freedom of Information Act (FOIA) requests are a popular topic here on Techdirt. We've discussed how important FOIA rules are... and how the government seems to go out of its way to try to ignore both the letter and spirit of the law. Because that's just how secretive governments act. However, it's certainly true that some FOIA requests are a little more ridiculous than others. Take, for example, Refinery29 reporter Vanessa Golembewski's amusing decision to file a FOIA request for Game of Thrones Screeners after finding out that the producers have been sending advance screeners to President Obama. Showrunners David Benioff and Dan Weiss admitted in an interview that they sent the screeners:
“I think, for both of us, finding out the President wanted advanced copies of the episodes was an ‘ah-ha’ moment,” Weiss said. “That was a very strange moment.”

And did they say yes?

“Yes,” Weiss replied. “He’s the leader of the free world.”

Benioff added: “When the commander-in-chief says, ‘I want to see advanced episodes,’ what are you gonna do?”
So Golembewski decided that if the President had them, she could (and should!) FOIA them:
I decided this was a perfect opportunity to test the limits of the Freedom Of Information Act. If the president — and by extension, our government — is in possession of a file, surely that file is subject to my request to see it as a U.S. citizen.
Golembewski is pretty upfront in recognizing the chances of this actually working are slim to none, but still decided to go through with the process. Of course, it's going to get rejected. In fact, we've seen similar requests in the past. Back in 2013, we wrote about a (more legit) attempt to FOIA the backing track to Beyonce's rendition of the Star Spangled Banner at the inauguration. The composition was in the public domain, and the performance, recorded by the Marine Corps. Band, should also be public domain, as it's a work of the federal government, which is not subject to copyright.

And, indeed, the government did provide the music in question, but also warned that some of the other songs that were sent may have other copyright issues. More importantly, the government flat out rejected the request for any Beyonce related music, noting that the copyright was held by her, and not the government: "Please note that Ms. Beyonce Knowles-Carter's vocals/music do not belong to the Marine Corps. Therefore, you will have to send your request directly to Ms. Knowles-Carter's attorney..." Though, they did helpfully provide that attorney's name and contact info. I imagine that Golembewski may receive a similar note, since the President does not also get the copyright in those screeners.
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Filed Under: copyright, foia, game of thrones, president obama, public records, white house

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  1. icon
    Peter Orlowicz (profile), 22 Apr 2016 @ 10:26am

    Is this even an agency record?

    I'm not sure copyright law is the most productive way to analyze this request. In order for anything to be subject to FOIA, it has to be an "agency record" in the first place. Music played at the inauguration was recorded by the Marine Corps in the legitimate conduct of its official business, so it's an agency record created or obtained by an agency. It's much less clear that advance screeners of Game of Thrones would qualify as agency records that are even subject to FOIA, if they weren't provided in connection with the President's legitimate conduct of official business.

    The D.C. Circuit has listed four factors that go to whether a record is in the control of an agency: (1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.

    For example, if the screeners were provided with the stipulation that only the President and his immediate family could view them, or with a provision that the screeners had to be returned (or access to an electronic copy would terminate) after a specific amount of time, that would tend to demonstrate that HBO or the show producers never relinquished control of the record being requested. It also seems extremely unlikely that agency personnel would be relying on Game of Thrones screeners for official business, or that the screeners would be integrated into the normal records systems. All of those factors would seem to justify a denial of a FOIA request on the basis that the screeners aren't agency records at all, without resorting to copyright.

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