I've been trying to collect my thoughts about the Eldred decision. At this point I think there are several contexts that need to be explored.

One is legal — constitutional, really. Larry and the lawbloggers (sounds like a good name for a band) are all over that one.

Another is political. The Sony Bono Act was a political creation in the first place, and the Supreme Court decision in its favor was a political victory for Hollywood (yes, print publishers had some interest in it, but the story plays as a Hollywood victory, complete with quotes from Jack Valenti and Hillary Rosen).

The third is metaphorical. I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court. Here's how Richard Bennett puts it:

The issue here isn't enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright.

Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.

This isn't just a battle of words. It's a battle of understandings. And understandings are framed by conceptual metaphors. We use them all the time without being the least bit aware of it. We talk about time in terms of money (save, waste, spend, gain, lose) and life in terms of travel (arrive, depart, speed up, slow down, get stuck), without realizing that we're speaking about one thing in terms of something quite different. As the cognitive linguists will tell you, this is not a bad thing. In fact, it's very much the way our minds work.

But if we want to change minds, we need to pay attention to exactly these kinds of details.

"The Commons" and "the public domain" might be legitimate concepts with deep and relevant histories, but they're too arcane to most of us. Eric Raymond has told me more than once that the Commons Thing kinda rubs him the wrong way. Communist and Commonist are just a little too close for comfort. Too social. Not private enough. He didn't say he was against it; but he did say it was a stretch. (Maybe he'll come in here and correct me or enlarge on his point.) For many other libertarians, however, the stretch goes too far. Same goes for conservatives who subscribe to the same metaphorical system in respect to property.

So the work we have cut out for us isn't just legal and political. It's conceptual. Until we find a way to win that one, we'll keep losing in Congress as well as the courts.

Helpful reading on a similar (and to some degree related) case: Metaphor, Morality, and Politics, Or, Why Conservatives Have Left Liberals In the Dust, by George Lakoff.

Phyllis Schlafly in TownHall.com: Copyright extremists shouldn't control information. She nails it:

Copyright extremists are committing all this mischief under current law. Yet, the music labels and Hollywood argue that current laws are not strong enough, and they are lobbying for an assortment of new anti-consumer legislation.

One proposal would allow them to vandalize computer networks that they believe might be transmitting unauthorized content. Another proposed bill would force computer equipment makers to rig their computers so buyers can only see and hear what is authorized, and another proposal would give copyrights to privacy-invading databases.

The purpose of copyright law is to provide incentives and protection to authors to create and publish original works, not give corporations the power to control the flow of information. We should not permit copyright extremists to exploit current laws for that goal, and we should reject their demands that Congress give them even broader power to control and license information.

Copyright extremists got a lot of bad PR in the last session of Congress, both for themselves and for their sponsored legislators — some of whom (such as Fritz Hollings) are no longer running their committees.

So now would be a good time to press the reset button — not just on bad standing legislation, but on bad laws like the DMCA.

This story in the Washington Post suggests that we may have a bunch of new politial APIs.