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.

Filed Under: copyright, foia, game of thrones, president obama, public records, white house


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  1. identicon
    Anonymous Coward, 22 Apr 2016 @ 8:38am

    Benioff added: “When the commander-in-chief says, ‘I want to see advanced episodes,’ what are you gonna do?”

    Make him wait like everyone else? He is not royalty! Or someone with a debilitating disease that may not make it to release or someone that works in the industry needing to see it in advance to correct mistakes, over a rating or review.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 22 Apr 2016 @ 9:19am

    I heard Obama has an account on The Pirate Bay.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 22 Apr 2016 @ 9:23am

    Re:

    Agreed. It's almost a conflict of interest that an industry will prioritize the president and anyone with political influence over everyone else. Almost implies that the motive behind this might be to influence policy. Some democracy and it should be regarded with suspicion.

    reply to this | link to this | view in thread ]

  4. identicon
    Ragnarredbeard, 22 Apr 2016 @ 9:28am

    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?”


    You tell him to fuck off and watch it on HBO like every one else. He's not the King. Yet.

    reply to this | link to this | view in thread ]

  5. icon
    Whatever (profile), 22 Apr 2016 @ 10:13am

    This is the sort of thing that delays FOIA requests... wasting time to try to create a story where none really exists.

    reply to this | link to this | view in thread ]

  6. 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.

    reply to this | link to this | view in thread ]

  7. icon
    Peter Orlowicz (profile), 22 Apr 2016 @ 10:46am

    Re: Is this even an agency record?

    On the other hand, if it is an agency record, then FOIA Exemption 4 might well apply, because the copyright holder would have substantial commercial value in the copyrighted material, at least before the new season is broadcast.

    "Thus, Exemption 4 stands as a viable means of protecting commercially valuable copyrighted works where FOIA disclosure would have a substantial adverse effect on the copyright holder's potential market."

    https://www.justice.gov/oip/blog/foia-update-oip-guidance-copyrighted-materials-and-foia

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 22 Apr 2016 @ 10:48am

    “When the commander-in-chief says, ‘I want to see advanced episodes,’ what are you gonna do?”

    Say no??? Because you're supposed to be an artist??? And you should know better than to fetishize 'power' and to deny the millions of fans who actually support your work the same privilege as a government boob???

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 22 Apr 2016 @ 10:58am

    "...surely that file is subject to my request to see it..."

    Just because it's a file? Can an elected figure possess anything which isn't subject to such scrutiny? What personal effects are exempted?

    I read those producer quotes a bit differently... I'm imagining a cool-factor rolled into the "what are ya gonna do?" response; I don't hear these guys raising serious objections. What if a world leader was a TD junkie, and asked Mike for an inside look at his content... or even a T-shirt? Not cool?

    I think Golembewski is wrong to suggest coercion and arm-twisting.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 22 Apr 2016 @ 11:00am

    Re:

    I think the story here is that the president is getting priority from the producers over everyone else. Almost sounds like a conflict of interest resembling the corruption that we often discuss here.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 22 Apr 2016 @ 11:21am

    Re: Re:

    Agree... this is definitely one of those... I have created policies that help your copyright abusive companies to thrive... let me get some special treatment...

    ...
    We can talk about that other thing you wanted as well! So what time do I show up? ~Obama

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 22 Apr 2016 @ 11:24am

    Re: Re:

    Here Here!!

    Never trust anything a member of government does as being honest!

    There is always a power play somewhere somehow. Any time you see a politician get something will be because he paid for it with political currency in some form!

    reply to this | link to this | view in thread ]

  13. icon
    jupiterkansas (profile), 22 Apr 2016 @ 2:03pm

    Re:

    Any politician asking for an inside look at TechDirt content would raise some big red flags. A T-shirt, not so much.

    reply to this | link to this | view in thread ]

  14. icon
    art guerrilla (profile), 22 Apr 2016 @ 2:38pm

    Re:

    @whatever
    it is not often i am moved to comment on a poster merely because they are an idiot; if that were the case, i would have no time for anything else...
    but you, sir whatever, simply push the boundaries of idiocy to new heights...
    AND not a shred of self-awareness to observe such behavior in yourself...
    bot or retarded ? ? ?
    hard to tell...

    reply to this | link to this | view in thread ]

  15. identicon
    Lawrence D’Oliveiro, 22 Apr 2016 @ 5:18pm

    Wanting To Make A Joke About Yelling “FOIA” In A Crowded Cinema ...

    ... but I can’t think of one.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 23 Apr 2016 @ 6:41am

    saying the person who leads America is the leader of the free world is a highly amusing statement considering the last several decades

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 23 Apr 2016 @ 7:19am

    Re:

    how dare you question king obama's pedigree. He is obviously better than everyone else in the world solely because he rules through fear and coercion.

    reply to this | link to this | view in thread ]

  18. icon
    gorokuwireless (profile), 8 Mar 2019 @ 12:39am

    Game of Thrones.

    A Game of throne is HBO's award winning cash kitty that has become the sole reason many people the planet over get a subscription of the channel. The story of zombies and dragons alongside a political strife that results from a ill-thought out civil war forms the backdrop for this series. for more information call at +1-866-991-0490 or visit here https://www.gorokuwireless.com/game-of-thrones-season-8-2019-on-roku/

    reply to this | link to this | view in thread ]


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