Special master in his element
While the fact-finding process of the Justice Department's case against Microsoft is likely to be dry, the court-appointed special master in the case is anything but.
Gone will be the dueling press conferences and public revelations of supposedly outrageous behavior, replaced by a significantly more subtle process that has yet to be spelled out by Lawrence Lessig, the visiting Harvard School of Law professor who has been named the "special master" in the case.
As previously reported, U.S. District Judge Thomas Penfield Jackson ruled yesterday that the government had yet to prove that Microsoft's practice of requiring Windows 95 licensees to carry the Internet Explorer browser violates a 1995 court order. The judge called for a lengthy inquiry and, in the meantime, temporarily blocked the software giant from engaging in the practice.
The appointment of Lessig, a noted expert in computer and Internet law, suggests that Jackson is still unclear on many of the technical intricacies that abound in the case.
The road ahead--which in litigation parlance is known as "discovery"--will be crucial to the ultimate outcome. But the fact-intensive nature of the process is bound to be significantly more arcane than the highly visible legal maneuvering that has taken place so far.
"The case is going to go into the submarine phase when discovery goes on," said Jeffrey Kingston, a San Francisco trial attorney who handles high-tech cases for Brobeck, Phleger, & Harrison. "The parties are going to be under some pressure to do things the special master's way. I think you're going to see it get quiet for a while."
While the process is likely to be dry, the expertise brought by the special master is anything but.
"Reading the Constitution in Cyberspace," an article written by Lessig, was cited in last summer's Supreme Court decision striking down portions of the Communications Decency Act. Lessig also recently completed work on a nine-month online course called "Cyberspace Law for Non Lawyers," and currently teaches a course called "The Law of Cyberspace."
"Larry's really interested at a deep level in how social organizations are governed," said David Post, a law professor at Philadelphia's Temple University and the codirector of the Cyberspace Law Institute, who has taught with Lessig. "I think he saw that this medium really opens up whole new ways of interaction with your fellow human beings."