What emerges is an inevitable course leading to a foregone conclusion and waiting only for sufficient time and testimony to create at least some appearance of a genuine trial. The judge, knowing that he was way out of his element in this trial, relied on Lessig day by day. An examination of Lessig s views, as presented in both his interviews and his recently published book, Code and Other Laws of Cyberspace, leaves no ambiguity concerning his contention that the companies which design and write computer code threaten to control cyberspace and that government must step in to regulate the world of code. The future, either positive or negative, is measured by the degree to which computer-related companies and other organizations are regulable by the government. The IETF refused to participate in such a process, and as Lessig told a Computerworld interviewer, There is relatively little the FBI could do to get them to come along.
Legislation is only as effective as enforcement mechanisms.
In the current Microsoft case, Lessig, at Judge Jackson s request, filed a brief in advance of the judge s initial ruling. As might be expected, the term unfairly competitive was never defined, and we are left to wonder when competition crosses the line of fairness and thus warrants intervention by the heavy hand of government. The question is whether some kind of contract law or tort law might have created the incentive for people to deal with the problem much sooner. An overemphasis on the private got us here, not an overly statist federal government. Were the tort system better at holding producers responsible for the harms they create, code writers and their employers would have been more concerned with the harm their code would create. . . .