Did ICE 'Pirate' Its Anti-Piracy PSA?

from the where's-the-licensing-agreement? dept

Mon, Oct 10th 2011 9:27am — Mike Masnick

As you may recall, earlier this year Homeland Security's Immigration and Customs Enforcement (ICE) group proudly announced that it had started placing a video "public service announcement" (PSA) on all of the domains that it had forfeited (without any trial) from those it accused of violating intellectual property laws. The PSA they used was interesting for a variety of reasons. It involved actor/comedian Tom Papa, telling people on the streets of New York that getting a movie for free meant a boom operator would be out of work. The first thing that was interesting... was that it appeared to be almost identical to a video that was part of a New York City anti-piracy campaign. At least the feds made one small edit that took out the totally false claim that "there's no such thing as a free movie."

So, we were wondering, if the feds were really so concerned about getting actors paid... just how much did they pay Tom Papa and the boom mic operator for their appearance in the video. Did they pay anything? After all, rather than actually hiring actors and paying them, all ICE did was "copy" someone else's video. So, we asked PR people at ICE and in the NYC government... and got back nothing. Seemed odd.

So, then we filed some freedom of information act requests. Our request to NYC turned up the information that the videos were owned by NBC Universal. This was also odd. After all, nowhere does the federal government say that the videos are property of NBC Universal. You would think that when the federal government is running propaganda videos created by a private company, the least they could do is acknowledge where they came from. But, still, even if they were owned by NBC Universal, was the federal government (and our taxpayer dollars) paying these actors?

My first FOIA request to ICE was sent back saying there were no responsive documents. That seemed odd. Did ICE not license the video? We filed a second FOIA request that was even more specific to make sure... and while ICE initially sent back a "no responsive documents" response, they later admitted that was in error and sent back ten pages. But those ten pages show nothing about any licensing info. Instead, they include a press release bragging about the PSA getting 100,000 views, and some emails related to that press release. You can see that embedded below.

So, at this point, we're still left wondering: did ICE license the video at all? Or did they "pirate" it? After all, in the original version of this video, Tom Papa clearly states, "there's no such thing as a free movie." Yet, ICE can't seem to find any paperwork at all to show that they properly licensed the PSA or that they paid for it or any of the actors appearing in it. And given the way ICE has been leaping to conclusions about "piracy" on the websites they seize, I think I've provided ICE with much more courtesy to prove that they weren't violating anyone's copyright here than ICE does with the sites they seize.

So, I think it's fair to say that a reasonable person could conclude that, yes, ICE "pirated" it's anti-piracy PSA -- and until they show proof that they properly licensed it, this should be the working assumption. So, uh, when does ICE seize ICE's domain?

As you ponder that, don't forget that NBC Universal is working on making its next round of propaganda PSA's that will be "pirated" by the government, and doing so by getting schoolchildren to repeat talking points. In response, we're running a counter-contest, in which we're asking people to create videos about how creativity is impacted by technology. Unlike the propaganda campaign, we're not giving you the talking points (we believe you can think and speak for yourself). Also, unlike their campaign we don't take your copyright. Oh yeah, and we're offering more money.

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Filed Under: homeland security, ice, licensing, psa, tom papa

59 Comments

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BentFranklin (profile), 10 Oct 2011 @ 9:37am

Clearly ICE should seize ICE's domain.
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Anonymous Coward, 10 Oct 2011 @ 9:50am

Even if they can't dig up an explicit license, isn't it still likely that they used it by permission? I think without more information, you're simply jumping to conclusions. I understand that you criticize them for doing just that, but from where I'm sitting, you're both doing it.
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Dark Helmet (profile), 10 Oct 2011 @ 9:53am

Re:
I can see what you're saying, but at least Techdirt, you know, ASKED THEM what the deal was via FOIA requests before jumping to their conclusions. I don't recall ICE extending the same basic courtesy to their victims.

Assumptions on both sides? Sure. But only because in this case, we have no other option to exercize....
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Anonymous Coward, 10 Oct 2011 @ 10:01am

Re:
Jumping to conclusions is what ICE is all about.
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Hulser (profile), 10 Oct 2011 @ 10:01am

Re:
isn't it still likely that they used it by permission?

You mean like the tacit permission to use recordings given by the record companies to the web sites siezed by ICE?
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Mike Masnick (profile), 10 Oct 2011 @ 10:04am

Re: Re:
Yes, I'm joking about ICE actually "pirating" the video. I'm sure they had some sort of permission from someone (though I'm still curious who...). But, the bigger point is that they can't seem to prove that they did... and yet they completely take down websites on claims of piracy, where they have even less proof than I have.
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That Anonymous Coward (profile), 10 Oct 2011 @ 10:04am

Re:
"Even if they can't dig up an explicit license, isn't it still likely that they used it by permission?"

In the land where Prince's people can yank down a video of a baby dancing because his music was in the background, not as a soundtrack happened to be on the radio at the same time, one needs to make sure that you have utmost respect for the law.

When your weird job is playing copyright cop, I guess some of the videos are illegally crossing the border using faked customs declarations, one really needs to be on the high ground on the matter before going after others.

While NBC might not be mad about ICE using the propaganda, not being able to show a license agreement means they are violating the copyright. The fact the actors contracts might not cover this use needs to be examined as well.

Everytime ICE seizes a domain an actor doesn't get paid.
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Ninja (profile), 10 Oct 2011 @ 10:06am

Pirate Mike, have you forgot that they seized domains without due process? They can obviously use copyrighted material without due process too, silly. You and your syncophants can't even see that much in your utopic quest for freeloading on the expense of the creators? You are just a bunch of freetards ignoring the benefits of the work of this great Governmental outfit that the ICE is.

Did I do it right? How was my trolling overall?
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Rich, 10 Oct 2011 @ 10:10am

Re:
You need more capital letters.
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Anonymous Coward, 10 Oct 2011 @ 10:12am

Re: Re: Re:
But I'm not joking when I say that you're a gigantic douchenozzle.
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Dark Helmet (profile), 10 Oct 2011 @ 10:15am

Re: Re: Re: Re:
"But I'm not joking when I say that you're a gigantic douchenozzle."

With such eloquent points as this, it's breathtakingly shocking that we aren't all on your side, oh silver-tongued orator....
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Kaden (profile), 10 Oct 2011 @ 10:19am

Re:
A good first effort, but that should be 'Pirate mikee', and you need to keep your buzzword content current. Think 'BROADBRUSH', and remember to maintain some kind of fixation on Marcus Carab.
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timmaguire42 (profile), 10 Oct 2011 @ 10:20am

Re:
Maybe they did, and, per procedure, replaced it with this site showing the anti-piracy video. Which they then seized and replaced with...would you know you were in a hall of mirrors if you could see only one mirror at a time?
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Atkray (profile), 10 Oct 2011 @ 10:20am

Re:
I'd say middle of the road. Also don't ask how you did, just post and leave it. If you get your comment hidden like prisoner 201 did last week you know you did good.
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Anonymous Coward, 10 Oct 2011 @ 10:21am

Re: Re: Re:
Yes, I'm joking about ICE actually "pirating" the video. I'm sure they had some sort of permission from someone (though I'm still curious who...). But, the bigger point is that they can't seem to prove that they did... and yet they completely take down websites on claims of piracy, where they have even less proof than I have.

I'm glad you're joking about them pirating the video, but your bigger point isn't hitting the mark either. First of all, you can't possibly know all of the evidence that they have. What's in those affidavits isn't all the evidence that they got. Unless you have access to the government's case files, you're just flat out guessing. Second of all, ICE contacted rights holders and asked them if the websites in question had permission. The rights holders told ICE that they did not. Here, they haven't told you that they didn't have permission. In fact, you concede that they probably do have permission. So really, these situations aren't comparable, and you appear to me to be reaching here (as per usual).

The line about ICE seizing ICE's domain is cute though. I'll give you that.
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Anonymous Coward, 10 Oct 2011 @ 10:22am

Re: Re: Re: Re: Re:
That's what happens when you put ICE in your mouth.
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out_of_the_blue, 10 Oct 2011 @ 10:25am

Fair use for non-profit and sovereign immunity is enough.
"Fair use" applies even to your opponents, remember.

But at least you're beginning to check facts. Still failed because you went ahead with absence of evidence, just as various "copyright trolls" do.
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Anonymous Coward, 10 Oct 2011 @ 10:26am

Re: Re:
Even Mike is now conceding that they probably have permission despite his requests coming back empty. There's really no story here, but you guys keep milking it. Wouldn't want those FOIA requests to be for naught--I'm pretty sure Mike was going to spin this negative and FUD it out no matter what information was actually returned.
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Edward Teach, 10 Oct 2011 @ 10:27am

Avast, Ye Scury Hypocrites!
As the Subgeniuses say, "We don't practice what we preach, because we're not the people we're preaching to".

Shiver me sides, those Subgenii are funny! Me hearties, I think they're refuting a point with irony rather than actually claiming that preaching should be done in a hypocritical manner, Benny Hinn, Crystal Methodist, Landover Baptist and Fred Phelps notwithstanding. ICE and the Legalistic AC beware! Crawling up inside the law will not keep reality from happening!
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freak (profile), 10 Oct 2011 @ 10:33am

Re: Re: Re: Re:
We know how much evidence they've had, because some of those sites carried absolutely no infringing material, or the claimed infringing material was in fact given to the site by the copyright owner.

Basically, not much.
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Jay (profile), 10 Oct 2011 @ 10:35am

Re: Re: Re: Re:
You don't see the problem here?

The sites were unaware of any problems with rights holders before their domains were seized. If the rights holders had reached out and talked to them, all issues could have been avoided without law enforcement twisting rules.
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Jay (profile), 10 Oct 2011 @ 10:36am

Re: Re: Re:
Well, why isn't ICE being upfront about any info, chief?
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Hulser (profile), 10 Oct 2011 @ 10:39am

Re: Fair use for non-profit and sovereign immunity is enough.
"Fair use" applies even to your opponents, remember.

Whoosh! You really missed the piont, didn't you? It's not that fair use doesn't apply here. It's that ICE is being hypocritical and not applying the same rules to themselves that they apply to others.

Let me break it down for you in simple terms. ICE siezed the domains of web sites which were using music sent to them by the record companies. The evidence justifying the siezures was basically that the music being used was not owned by the web sites. But when ICE basically does the same thing -- uses copyrighted material not owned by ICE -- now it's OK?

And yes, you're allowed to use copyrighted material if you have permission from the owner. Obviously. The problem is that ICE doesn't appear to care that the web sites actually had permission? (Wouldn't you think you'd have permission to use a song if the company who owns the song sent it to you and asked you to use it on your site?)
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That Anonymous Coward (profile), 10 Oct 2011 @ 10:42am

Re: Re: Re:
This is an agency who has been leading the charge to take out "pirate" websites and their intel comes from the industry saying it has to be infringing.

When they can not come up with a single document showing they have the rights to use this video, using the same burden of proof they use, we should be suing ICE and seizing property.

There are some serious questions that need to be answered here, and the fact they do not want to answer should be considered as something not right going on behind the scenes.
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AJ, 10 Oct 2011 @ 10:42am

Re: Fair use for non-profit and sovereign immunity is enough.
"Still failed because you went ahead with absence of evidence, just as various "copyright trolls" do."

Or did you fail, for not recognizing that he was actually pointing out that they failed, by failing to respond to his FOIA with anything other than a steaming pile of fail!?
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Greevar (profile), 10 Oct 2011 @ 10:44am

Re: Re: Re: Re: Re: Re:
It does make it hard to speak coherently with a mouth full of ICE.
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Josh in CharlotteNC (profile), 10 Oct 2011 @ 10:46am

Re:
Even if they can't dig up an explicit license, isn't it still likely that they used it by permission?

Can I use this argument when someone accuses me of pirating something and tries to get my internet connection shutdown?
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Mike Masnick (profile), 10 Oct 2011 @ 10:59am

Re: Re: Re: Re:
Second of all, ICE contacted rights holders and asked them if the websites in question had permission.

False. ICE contacted the RIAA. In at least two cases we've seen, this included for content from artists NOT represented by an RIAA label.
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Ninja (profile), 10 Oct 2011 @ 10:59am

Re:
True, a few words in capital letters then.

Also forgot about Marcus. Damn he's gonna be mad at me... I forgot the broadbrush thing, it would fit wonderfully here. I wonder what's the troll word of the month. It was syncophants a while ago but I can't keep up with them. Maybe I should set a trend and start my own personal troll words of the month?

And not ask how I'm doing and waiting to be reported by the community. I feel that's the next step, for now I'm just polishing my skills! But thanks for the tip too.
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Rikuo (profile), 10 Oct 2011 @ 11:06am

Re: Re: Re: Re:
"Second of all, ICE contacted rights holders and asked them if the websites in question had permission. The rights holders told ICE that they did not. "

And I suppose you believe every word that comes out of the rights holders mouths? They've been proven to have lied completely about this issue. Many music blogs that were taken down did in fact have permission; not just permission, but were GIVEN the music by the rights holders.
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lucidrenegade (profile), 10 Oct 2011 @ 11:23am

Re:
I give you points for using the word "utopic".
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Tom Smykowski, 10 Oct 2011 @ 11:36am

Re:
What's all this about jumping to conclusions? I can neither confirm nor deny ICE custom ordering a Jump to Conclusions® mat with every square being Kiera Knightley screaming 'PIIIIIIRRRRRRAAAAATTTTTEEEEEEESSSSSS'
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The eejit (profile), 10 Oct 2011 @ 12:11pm

Re: Fair use for non-profit and sovereign immunity is enough.
When the Government refuses to speak to a member of the public (as with the OWS protests) someone has to dig. The point is, however, that they shouldn't need to.
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Anonymous Coward, 10 Oct 2011 @ 12:23pm

Re: Re: Re: Re: Re:
False. ICE contacted the RIAA. In at least two cases we've seen, this included for content from artists NOT represented by an RIAA label.

Not the same thing. If you asked the right holder if they had given ICE permission to use the video, and they said "no" even though the answer was really "yes," then you'd have a parallel situation. But that's not the case here.

ICE was acting on information given to it about whether the works had been authorized. Sure, that information might in part have turned out to be inaccurate, but that doesn't mean that ICE wasn't doing its due diligence and acting objectively.

You on the other hand even admit that ICE probably has permission to use this video, despite what your FOIA request turned up. The rights holder hasn't told you anything one way or the other about whether this use is authorized.

The two situations aren't analogous, and you seem a bit desperate here trying to connect the two.
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JMT (profile), 10 Oct 2011 @ 12:50pm

Re: Re: Re:
"I'm pretty sure Mike was going to spin this negative and FUD it out no matter what information was actually returned."

And here you are trying to put down any interest in the story by claiming there isn't one. It's hard to understand why you'd do that unless you have reasons for not wanting further questions or discussion. We certainly don't see any reasonable explanations from you.

And wow for "FUD it out". That's some real sharp creative writing skills you've got there...
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Anonymous Coward, 10 Oct 2011 @ 1:05pm

Re:
"I think without more information, you're simply jumping to conclusions."

He asked them....practically begged them...for info.
They provided nothing.
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Anonymous Coward, 10 Oct 2011 @ 1:18pm

Re: Re:
Yep. And even Mike admits it's probably being used by permission. Don't let all the FUD around here go to your head--be very, very skeptical, especially when reading Techdirt.
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lucidrenegade (profile), 10 Oct 2011 @ 1:23pm

Re: Re: Re:
"Don't let all the FUD around here go to your head--be very, very skeptical, especially when reading Techdirt."

That also applies to comments left by ACs.
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The eejit (profile), 10 Oct 2011 @ 2:04pm

Re: Re: Re: Re: Re: Re:
"probably" does not equal "certainly". And as we've seen before, even "Certainly has permission" has not stopped ICE from seizing a domain.
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Anonymous Coward, 10 Oct 2011 @ 2:47pm

Now if only they could take care of these space herpies infesting the ship...
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Any Mouse (profile), 10 Oct 2011 @ 3:42pm

Re: Re: Re: Re: Re: Re:
Not the same thing. If you asked the right holder if they had given ICE permission to use the video, and they said "no" even though the answer was really "yes," then you'd have a parallel situation. But that's not the case here.

What if the answer really was 'no, but we don't control that content'? In which case it doesn't matter if the answer was yes or not, because they could not have provided the permissions necessary. It wasn't within their rights. So by calling those sites out as infringing have they not perjured themselves? Lying to a court is supposed to be punished.
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Any Mouse (profile), 10 Oct 2011 @ 3:46pm

Re: Re: Re:
But there is a story here. It calls directly to their authority and how much we believe them. They cannot, or will not, provide documentation that they licensed the video. Why? It's a simple matter of showing said document with the personally identifiable information redacted. Saying they don't have to shows us they have no respect for the public, and that needs to change.
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Anonymous Coward, 10 Oct 2011 @ 6:01pm

Re: Re: Re:
More FUDpacking Masnick?

"But, the bigger point is that they can't seem to prove that they did... and yet they completely take down websites on claims of piracy, where they have even less proof than I have."

Why are they obliged to prove jack shit? You're not the rights holder are you? Has any rightsholder complained or sent a DMCA takedown notice?
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Anonymous Coward, 10 Oct 2011 @ 6:25pm

Re: Re: Re: Re:
This is an agency who has been leading the charge to take out "pirate" websites and their intel comes from the industry saying it has to be infringing.

When they can not come up with a single document showing they have the rights to use this video, using the same burden of proof they use, we should be suing ICE and seizing property.

There are some serious questions that need to be answered here, and the fact they do not want to answer should be considered as something not right going on behind the scenes.

You really are out of your fucking mind. What serious questions? No one claiming to be a rightsholder has objected. Yet absent any statement by anyone claiming copyright that ICE didn't have proper authorization, this stupid thing gets elevated by the Techdirtbag conspiracy theorists.

This place is like the National Enquirer pressroom only more hysterical.
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Anonymous Coward, 10 Oct 2011 @ 6:35pm

Hey masnick. What about your NYC FOIA?

We both know damn well that this isn't the mystery you claim it to be. Right FUDboy?
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Bergman (profile), 10 Oct 2011 @ 7:16pm

Re:
When dealing with corporate copyright permissions, all such permissions are in writing. This creates a paper trail, which ICE has repeatedly claimed does not exist.

Either ICE pirated the video and are breaking copyright law, or they are lying about a FOIA request and are in violation of the Freedom of Information Act. Either way, they're breaking the law.
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Bergman (profile), 10 Oct 2011 @ 7:18pm

Re:
Hey! We're not sycophants (or syncophants, if that is truly what you meant to write)! We're synchrophants!

We don't agree with what Mike said because he said it, he's saying things we already agree with!

Insults lose impact if you spell poorly or call someone the wrong name. Get it right!
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Bergman (profile), 10 Oct 2011 @ 7:21pm

Re: Fair use for non-profit and sovereign immunity is enough.
Yes, Fair Use does apply. But what ICE did isn't remotely Fair Use. To qualify as Fair Use, certain legal criteria must be met and the purpose of the use must be one of a few, restricted types.

None of which describes what ICE did with that video.
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Anonymous Coward, 10 Oct 2011 @ 7:55pm

Re: Re:
When dealing with corporate copyright permissions, all such permissions are in writing. This creates a paper trail, which ICE has repeatedly claimed does not exist.

Either ICE pirated the video and are breaking copyright law, or they are lying about a FOIA request and are in violation of the Freedom of Information Act. Either way, they're breaking the law.

Sorry. what law school did you graduate from?
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Jay (profile), 10 Oct 2011 @ 9:05pm

Re: Re: Re:
"Sorry. what law school did you graduate from?"

And why does that matter?
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The eejit (profile), 10 Oct 2011 @ 11:28pm

Re: Re: Re: Re:
No, but ICE should be held to a higher standard, seeing as they've done seizing for less actual proof.

But hey, let's not let that get in the way of your drug-filled illusions of grandeur.
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Jesse Townley (profile), 11 Oct 2011 @ 1:54am

Re: Re:
"When dealing with corporate copyright permissions, all such permissions are in writing. This creates a paper trail, which ICE has repeatedly claimed does not exist."

Even for the lowliest independent film, there are usually a fair amount of agreements for master & sync rights for music.

I can't IMAGINE what a US government agency would produce in terms of a paper trail for use of a piece of film produced and used by a private corporation. It'd be a battle of red tape back and forth!

Who will win? The FOIA knows, bwahahaha!
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Anonymous Coward, 11 Oct 2011 @ 3:31am

Re: Re: Re: Re:
Hey, we are not all crazy! Just a vocal minority is.
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Anonymous Coward, 11 Oct 2011 @ 3:37am

Re:
Err... I don't know what you mean by NYC FOIA. Can you explain?
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S, 11 Oct 2011 @ 11:50am

Re: Re: Re: Re: Re:
There's something about craziness which just seems to absolutely NECESSITATE the afflicted run their mouths faster than anyone would think possible.
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freak (profile), 11 Oct 2011 @ 1:24pm

Re: Re:
Freedom of Information Act request, I think he meant.

And to answer his question, he can read the goddamn fucking article.

"Our request to NYC turned up [snipped to make AC read the goddamn article]"
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MikeC (profile), 11 Oct 2011 @ 1:25pm

Isn't Ice Pirates a bad Sci-Fi Movie
Oh if only this were the same thing.
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Anonymous Coward, 11 Oct 2011 @ 3:41pm

Re: Re: Re:
There was more to the NYC FOIA than was revealed here
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Alex, 4 Jan 2012 @ 9:55am

Grammar correction
>So, I think it's fair to say that a reasonable person could conclude that, yes, ICE "pirated" it's anti-piracy PSA

FYI: http://public.wsu.edu/~brians/errors/its.html
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