Lawrence Lessig wrote a recent Wired article (1/2007) where he claimed that he was wrong to join the US antitrust case against Microsoft. And he describes himself as the person who sided with the 'regulatory' party.
We pro-regulators were making an assumption that history has shown to be completely false: That something as complex as an OS has to be built by a commercial entity. Only crazies imagined that volunteers outside the control of a corporation could successfully create a system over which no one had exclusive command. We knew those crazies. They worked on something called Linux.
Americans don't understand ordo policy? No, Lawrence Lessig explores a rhetorical pattern and adapts to language. However, the widespread use of the 'regulation' accusation in the USA demonstrates how poisoned the debate actually is and that indeed many never studied ordo policy. And as part of a rhetorical pattern Lessig declares ordo policy (antitrust, ..) obsolete by alternatives which emerged through free collaboration. Thereby he misses the essence of policy actions which aim to provide, to safeguard market order. Laissez-faire is naive ordo policy. Given that the main purpose of law is ordo, it sounds strange that a lawyer advocates laissez-faire.
Think of a mafia boss who is killed by an opponent organisation. Sure, his power was challenged by a CaponeIII. The purpose of legal order is to ensure that no one kills his 'market opponents'. Should police be considered "regulation"? Ordo is the core of justified governmental policy. In the case that the CaponeIII organisation lobbies for 'free exercise of power' and takes governments captive it also creates a sort of "order", yet no ordo-liberal one. An order that could heavily backfire. Not because CaponeIII underestimated the strength of the public and media (he failed to bribe) but because his own bullet is loaded.
Liberal ordo policy aims to establish market order where open competition may take place.
Social Media.biz blog responds with an insightful comment:
[Lessig's communication pattern] ought to enhance his libertarian credentials …, but the fact is that he was not wrong. Even many of us — this editor included — who drew a paycheck from Uncle Bill at the time were aghast at Microsoft's heavy-handed monopolistic tactics to destroy its competitors.
Of course it is never wrong to put emphasis on market order. And antitrust cases against Microsoft are a excellent advocacy issues. Because fights against Microsoft are always big news. Media hates the company. Microsoft conspiracy theories sell well. A natural flamebait, good for scholars like Lessig who need more public attention. The most funny thing of the rogue company blame game is to watch hired lobbyists play the rogue game. It is never wrong to fight with that company on the other side, it is good for your cause. Ballmer was right when he told "I have 4 words for you: I love this company". Activists just feel the same.
Both sides of the lobby struggle are great because they both help to carry the same message (okay: regime change ended the great US antitrust party, an exeption). Maybe the software producer will finally comply to EU orders. (Who cares about compliance when a monopolist gets into suicidal non-compliance games which are sooo entertaining.). And when they will finally comply, US market players will benefit from EU antitrust sanctions as well. No Linux needed here. No Google needed here.
We Europeans expect to have further fun with a company which fails to respect EU authorities and offends officials. They help us to spread our message. Activists have nothing to lose by proactive action. These are political fights which are worth to get into. Just watch CompTIA's Initiative for Software Choice. A riddiculous attempt to prevent free software regulation. They were succesful in Spain recently but its pure defense. Useful punchbag.
Why fight the war? Because we can. Just for fun. Nothing wrong about that. And Lawrence Lessig would remember that 'Just for Fun' was a Linux principle. It is not wrong to have fun.