Lodsys, “Patent trolls,” and Free Culture, or, Was the Web really ever emancipatory?

So, I know I’m using emancipation very loosely here. Saying emancipation begs the question:  Emancipation from what?  I’m trying to cheekily hark back to early ideas of the Internet as a space that can emancipate us from mass culture by making us all producers and consumers of cultural products.  Nowadays, most of us accept that the cultural production on the Internet is not that simple.

I was reading about Lodsys and its lawsuits brought against iOS and Android app developers for allegedly violating the patents held by Dan Abelow (whose patents are owned and licensed by Lodsys, LLC).

What’s striking to me is that, according to Lodsys, they are protecting their intellectual property rights.  Others accuse Lodsys of being “patent trolls”– that is, they’re accused of purchasing patents in order to make money merely by suing other companies.  Now, I’m not trying to say anything special or interesting about patent laws and whether or not they’re broken.  I doubt I have anything interesting to say.

What I am interested in is this notion of markets and the idea that once established, they persist for their own sake (see Foucault, 2010; Polanyi, 2001; Lindblom, 1980).  It seems to me that after the Internet became a viable market place, patent disputes quickly followed.  Patents, of course, are tradable commodities that are really slips of paper with huge real-world effects.  (Like derivatives and sovereign debt, patents aren’t plants that are grown or livestock that are raised– they’re just bought and sold in the same way.  We can’t consume them for food or burn them for fuel.  I guess they’re sort of like a simulacrum?)

What does this mean for *cough* emancipation or cultural production from non-corporate actors?  If we believe (and let’s just say we do for a moment), as the Electronic Frontier Foundation argues, that software is a form of free speech and cultural production, then what does that mean in the face of markets where intellectual property is a tradable commodity?  True, there exists Creative Commons, GPL, BSD License, etc. But, these forms of copyrights (a type of intellectual property closely related to patents) all buy into the idea that intellectual property can be bought and sold.  Is there still cultural value when we’ve turn the results of intellectual productions into intellectual property?

The faint itch in the back of my brain reminds me that Foucault, Polanyi, and Lindblom all argue that markets are artificial spaces that tend to overrun states, societies, sovereign power, and individuals.  Foucault even argues that markets are the arbitrary spaces where “truth” is determined.  If so, then that would imply that it is possible to disaggregate the money value and the social/cultural value of a product.  After all, things only have a money value when they’re considered in relation to a market. (Bread is something I eat, until I have to buy it.  Then, it’s something I pay for.) How do we disaggregate, say, the cultural production of software from software as a thing you buy?

So, I suppose a larger question is: Was there ever a moment when cultural production on the Internet was truly free from economics?  Of course, thinking about mass culture means that we have to consider the Frankfurt School’s (critical theory) notion of the culture industry.  In a way, critical theory is a reimagining of Marxism’s promise of liberation/emancipation from Capitalism, alienation, reification, etc.  Can we reimagine an emancipatory potential back into the Internet?  Or, was the web really ever emancipatory?