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Judge won't remove Lessig

In another blow to Microsoft, a federal judge rejects the software giant's move to disqualify the "special master" in its antitrust case.

In yet another setback for Microsoft, a federal judge today issued a sternly worded order denying a motion to disqualify a computer law expert assigned to the antitrust case pitting the software giant against the Justice Department.

In mid-December, MS and the $1 million question U.S. District Judge Thomas Penfield Jackson had designated visiting Harvard Law School professor Lawrence Lessig a "special master" in the case, directing him to collect evidence and propose a legal outcome by May 31.

Microsoft objected to the appointment, saying that Jackson had erred in delegating so much authority. In addition, the company argued that email and other written statements attributed to Lessig demonstrated that he was biased against Microsoft.

In an order handed down late today, Jackson called Microsoft's allegations "both trivial and altogether nonprobative" and chided the software giant for besmirching Lessig's character in public.

"[The accusations] are, therefore, defamatory, and the court finds that they were not made in good faith," Jackson wrote. "Had they been made in a more formal manner they might well have incurred sanctions."

A Microsoft spokesman said the company was disappointed in the decision but promised to respect the judge's authority. "We felt the evidence we presented spoke for itself," Microsoft's Jim Cullinan said. "But, clearly, the judge has made his decision, and we're going to go ahead and work with Professor Lessig."

A Justice Department spokeswoman declined to comment.

Microsoft argued last week that a number of statements attributed to Lessig demonstrated a bias against the company. Specifically, it cited a June email he sent to an attorney at Microsoft competitor Netscape Communications, in which Lessig equated installing Microsoft's Internet browser to having "sold [his] soul." Microsoft said the message, as well as scholarly articles Lessig had written, raised serious questions about Lessig's ability to be impartial.

Redmond attorneys also argued against Jackson's appointment of a special master at all, a point that the judge flatly rejected today.

"The court appointed a special master for essentially all of the reasons set forth by the government in its succinct and well-stated opposition to the motion," Jackson stated. "The reference to a special master of the task of assisting the court in making findings...does not, in the court's opinion, represent any abdication" of its authority.

The judge added that he asked Lessig to submit a declaration responding to Microsoft's objections and indicated that he was satisfied with Lessig's explanation. "Those assurances are consistent with those given earlier and informally to the court before Professor Lessig's appointment as special master was made," Jackson wrote. A copy of that declaration was not immediately available.

The antitrust case originated in October when the Justice Department accused Microsoft of violating a 1995 consent decree forbidding the company from tying the sale of its Windows operating system to other products. When Jackson appointed the special master in December, he also ordered Microsoft to distribute its Windows operating system separately from its Internet browser pending a final decision in the case.

Jackson's order came just hours after the close of a two-day hearing in which the government argued that Microsoft is flouting the court's preliminary injunction. On several occasions, Jackson asked Microsoft attorneys pointed questions in a raised tone of voice.

Before today's ruling, a number of legal observers had predicted that Microsoft would prevail in its attempt to remove Lessig, citing procedural rules that allow for the dismissal of court officers who have a reasonable appearance of bias. Jackson's decision caught at least one of those observers by surprise.

"I'm amazed," said Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady, & Gray in San Jose, California. "Microsoft is entitled to a judicial officer who does not even have an appearance of bias. To suggest that Microsoft was wrong to even bring the motion is extraordinarily hostile."

Gray noted that Jackson's impatience may mean that Microsoft has lost credibility with the judge. "This does not bode well for his ruling on the contempt citation," he added.

Jackson ordered both sides to file briefs in the contempt proceeding by Monday and make final arguments next Thursday. The judge has not indicated when he will rule on the matter.