Odd, right? I mean, being written into the Constitution is like owning one of the Ten Commandments. If you claim were that fundamental, wouldn’t you be talking about it all the time?

Well, not if that grant were a highly conditional clause. And it is a highly conditional clause. After all, our Funding Fathers were no fools. They generally (and rightly) regarded monopolies as bad and dangerous things, and being the anti-royalists they were, also harbored an instinctive suspicion of – you guessed it – royalties.

But they were willing to make an exception for copyright on two conditions; (1) that this limited grant of monopoly power benefit creators and the public alike, and (2) that the benefits to both parties be out of all proportion with the social costs imposed by the law.

At the time, there was no evidence that the tradeoff was actually justified – it just seemed like a no-brainer. And perhaps it was. But that was then – before networked culture, and the danger that enforcement of monopoly rights could produce conflicts with every other pillar of free society, including freedom of expression, strict assurances of privacy, sanctity of due process, punishments proportional to the related crimes, and generally limited government reach.

In the same way that it was safe to simply assume that the costs of copyright were appropriately minimal before the advent of digital media networks, it’s even safer to assume that the costs are completely unjustified today – given that they constitute a direct assault on democracy itself.

So in the absence of that fundamental justification – and in the presence of a clear and present danger to free society – that grant of monopoly power should now be heavily curtailed. In reality, we know better. Indeed, what copyright lobbies now lack in terms of authority and justification, they make up for with raw violence, deceit, and fear. Add a legislative body that is, by turns, incompetent and corrupt, and the outcome is far from certain. In the meantime, the one-time catalyst for cultural development is becoming the biggest threat to culture’s advance.

Nevertheless, this is not an argument against copyright. To the contrary, outright abolition is an equally extreme response to the emergence of network culture, and is just as inappropriate as the typical response from publishing groups. Indeed, by ignoring the limited grant of power in our Constitution, the abolitionist movement is putting themselves on the same shaky ground as the current crop of maximalists.

The sensible thing is to ignore the radicals on the left and right, and accept the rule of law by rolling back the monopoly power to a place where – once again – its limited costs are clearly outweighed by its benefits to creators and the polity alike. From there, spoils would accrue to those operations that work out how to make money for themselves by operating within the positive framework established by law.

When it comes to establishing the new justification point, one approach may be to formalize limits to copyright law that have always been implicit since its inception. Due to the (once substantial) cost of publishing and distributing copies, the law was almost never used to govern individual conduct. Instead, it’s what protected publishers from each other. In short, it was industrial law, and totally removed from the individual sphere in the same way that SEC or FAA regulations govern banks and airlines, and not the individuals that patronize them.

Here, we could maintain this tradition by saying that only corporations (e.g. organizations that accept a broad range of extra-Constitutional rules and regulations in exchange for special liability limits from the State) can be prosecuted for copyright infringement.

In practice, this means that publishers can’t terrorize individuals for copying and sharing work they like, freely and without restriction. It also means that commercial publishers can’t release work to which they have not secured the appropriate rights. And since publishing (either now, or in a future curatorial form) is always likely to involve organized groups, it’s highly unlikely that you’ll see major players forming without the liability protection offered by incorporation.

By using limited monopoly rights to protect creators from predatory publishers – and to protect publishers from predatory competitors – we could end the war between publishers and the public clears the way to get on with the real work of cultural adaptation to the network age. That is to say, we could do this in a open, legitimate, and full-throated American way, instead of sneaking around in the shadows like members of the French Resistance.

Yes, this would mean that publishers would have to accept major concessions, and no, they wouldn’t be spared the pain and uncertainty of pioneering new business models. At the same time, continuing a war with the general public to protect an increasingly indefensible position is going to lead to the same results anyway – only with far more collateral damage thrown in for good measure. Also, far less tax revenue.

In this post-maximal world, publishers would have to shift their primary focus from the development of artists to the development of audiences – moving them from their current (and relatively low) status as read-only customers into the much more sophisticated role of enlightened patrons, willing and able to commission work so that it can be paid for in advance, and released freely to increase the breadth and depth of the patron base.

Private investment would have to shift closer to the artists themselves, in calculated bids for the favor of (and funding from) cultivated audiences.

I know that present-day publishers can’t imagine what these people would look or act like – any more than medieval kings could imagine muddy and illiterate peasants ever forming a successful government of the people, by the people, and for the people.

Fortunately, our constitution wasn’t written by those kings. Unfortunately, our culture is still in the legal – if unjustified – possession of people who are that unenlightened.

It’s time for our culture to catch up with our Constitution. this catching up happened with the end of slavery. It happened with the development of universal public education. It happened with the passage of women’s suffrage. It happened with the civil right’s movement. In fact, America’s entire history has been the slow (and often violent) realization of the promise made by our Constitution. And every time we’ve made progress, our society has become stronger, richer, and more stable as a result – even though we were threatened with certain ruin if we dared to move ahead.

If the past is any guide, we can roll back the grant of copyright monopoly to its Constitutionally proscribed limits and not only survive, but flourish as a consequence. And given our current economic predicament, some flourishing would be a good thing right now.