Mayor Gavin Newsom's office announced on December 1st that he would be making his upcoming "State of the City" address available on YouTube. The SF Chronicle reported that this 7˝ hour speech would be hosted in "webisodes" by the Google-owned video sharing service. It will also be available on SFGTV and cable Channel 26. This is a step forward for those who value open government, yet there is one catch that could undermine the intended purpose of hosting such footage on an Internet video sharing service. While the intent of using new and innovative technologies to create a dialogue and disseminate government information is laudable, Newsom may have overlooked a few technicalities that would limit San Francisco taxpayers from being able to freely use the footage they are funding.

I asked Michael Freeman, Media Production Supervisor for SFGTV, whether or not videos hosted by SFGTV were public record or copyrighted works. He replied, "I couldn't tell you about the law, its something you would have to contact the city attorney about." His duties include managing the technical aspects of the SFGTV service, but he isn't expected by the city to manage the legal implications of how SFGTV video is used by the public. So the question now becomes, who is?

The mayor's YouTube channel contains useful information—a brief review of its contents show that he is making an honest attempt to democratize government information. The new effort to make his speeches more widely accessible will be beneficial to civic debate about real issues that affect San Francisco. Previously, such speeches were only available through SFGTV, but the city contractor that hosts those videos, Granicus.com, asserts copyright of the footage, since its Terms of Use cover everything under the Grancius.com domain name. This includes the State of the City footage and the majority of meetings San Francisco records.

Before YouTube, the State of the City speech would have taken place in front of city officials and hence been subject to open meeting laws, while also being a part of the public record. Even though re-use of SFGTV footage is limited by copyright, theoretically reporters or citizens at a public speech could still take their own footage so there wasn't a monopoly on mediation of the event. The State of the City address was filmed in private at the newly renovated Academy of Sciences. Hosting the speech on YouTube allows for greater digital access, but still maintains similar legal impediments as the SFGTV/Granicus.com footage. Thus it solves one problem while exacerbating another.

A press release posted to a government website is presumed to be public record, as are speeches, meetings and many forms of media that relate to the inner workings of government, but there is a tendency for media companies to regard such important civic dialog as mere "content" to be exploited for solely commercial purposes.

Cooperation between government and business at the expense of civil society has been the subject of Internet policy debates before. For instance, C-SPAN asserts copyright of its video footage, which includes the proceedings of Congress. C-SPAN walked the fine line of claiming that by making recordings of Congressional proceedings and overlaying their logo they gain copyright protection and the video footage (not the proceedings themselves) becomes their intellectual property. This is problematic because they have exclusive permission to take video on the floor of congress, creating a monopoly on video of this taxpayer funded civic dialog. Their enclosure of the pubic domain was ultimately subverted through controversy and legal wrangling by a project called, Metavid, which archives all such footage and removes the logo, reclaiming a standard of openness and access to government.

The potential pitfall in using YouTube is that there is language in its Terms of Use that restrict many of the uses that public record laws would otherwise allow. The consequences of government officials using such services exclusively, while in this case unintended, could limit the democratic re-use of publicly funded footage for purposes such as political commentary, reporting, blogging, satire and artistic uses.

While simple syndication of such a speech using YouTube is not problematic, the current situation is harmful to democratic discourse because there is no way for someone to access or re-use the footage with any certainty that they are not breaking copyright law. Someone downloading the video for use in a political documentary could not do so without assuming some legal risk.

To avoid any conflicts with public records or open access laws that could potentially restrict the use of such footage, Gavin Newsom should follow the lead of the incoming president, Barack Obama. The website of the new administration, Change.gov, has adopted a Creative Commons Attribution license and made its videos available for download to ensure that use of the footage is not inadvertently restricted. The Electronic Frontier Foundation notes that the use of the CC license supports participatory democracy by negating the default "all rights reserved" copyright that is applied to creative work posted to websites.

Aaron Swartz, co-founder of Reddit.com and open government activist, clarified one ambiguity of the issue for me, "Most .gov sites are run by the Federal Government and copyright law says the Federal Government can't get copyrights – everything they do is in the public domain. Change.gov is an exception because it’s not actually produced by the Federal Government – it’s run by The Obama-Biden Transition Project, which is a 501(c)4 non-profit. Local governments, like nonprofits, can probably hold copyrights, but as in the case of Obama, its very poor form." The reason Obama's team chose Creative Commons is to ensure that the public will have access to its work product, in keeping with the spirit of open government laws.

"There is no possible justification for a government official using copyright to control the distribution of him or his work," was the response I got about the issue from Lawrence Lessig, a Stanford Law Professor and founder of Creative Commons. "Nor is there any reason to give a commercial entity the exclusive benefit of a government officials work. It is great news that the Mayor is spreading his message broadly. But he should do so consistent with 'open government' values."

Like Obama did with Change.gov Newsom should be proactive and license all his work—and the whole of SFGOV.org while he is at it—under a Creative Commons Attribution license. This will clarify any ambiguities in regard to copyright and send a clear message to citizens; government work is in the public domain.

In addition to the licensing of Newsom's work, making the video available for download through an online public library such as the Internet Archive, is easy enough and can be done automatically using services such as Blip.tv. Open government is something that must be robustly defended at every turn; there are many ways for access to the inner workings of government to slip away, some more subtle than others.

It is essential that Newsom make the licensing of his speeches reflect the intent of his commendable effort to keep the public informed through the innovative use of technology. Adding a CC license is a small change with big implications, but if it is overlooked it could set a bad precedent for others in government and send the wrong signal to other government officials through negative network effects. San Francisco should be a leader in progressive dissemination and open government values.

Ian Elwood has a Master's degree in Media Studies from New College of California, and has worked for multiple nonprofit technology projects. His work recently earned a grant from the Sunlight Foundation for a mash-up of Securities and Exchange Commission data.