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Microsoft appeals Lessig ruling

The software giant presses on with its opposition to a court-appointed adviser assigned to its antitrust battle with the Justice Department.

Microsoft (MSFT) pressed on today with its opposition to a court-appointed computer adviser assigned to its antitrust battle with the Justice Department, asking an appeals court to overturn the designation.

The software giant told the U.S. Court of Appeals for the District of Columbia Circuit that the appointment was MS and the $1 million
question "incompatible with basic principles of American jurisprudence" and asked that the ongoing proceedings be immediately suspended.

The appeal comes just two days after U.S. District Judge Thomas Penfield Jackson turned down Microsoft's request to revoke the designation of visiting Harvard Law School professor Lawrence Lessig as a "special master."

Microsoft opposed such a designation altogether, saying it delegated too much authority. It further argued that the professor demonstrated bias against the company in a June email Lessig sent to Microsoft archrival Netscape Communications, as well as in other writings.

Jackson had strongly rebuffed the company's request, calling the accusations of bias "trivial" and "defamatory." The sternly worded order surprised a number of legal observers, who said Microsoft was on solid legal footing in arguing that Lessig appeared biased.

Jackson appointed Lessig special master in mid-December, charging the adviser with collecting evidence in the case and proposing a legal outcome by May 31.

In their filing today, attorneys for the software giant wrote: "Because the special master has already initiated his review of this matter (over Microsoft's objections) and because he is continuing to conduct extensive proceedings, Microsoft respectfully requests that this [federal appeals] court immediately stay the district court's order."

They added that, under federal law, a judge was required to hear the case and that Lessig's appointment "effectively delegates that responsibility to a private citizen, and is therefore incompatible with basic principles of American jurisprudence."

When Jackson refused Microsoft's request to remove Lessig, he also denied its request to allow for an immediate appellate review of the decision. That means Microsoft will have a hard time getting the appeals court to hear the issue, one antitrust attorney following the case said.

"Microsoft has a very high procedural hurdle to overcome before the court of appeals will even look at the issues they're trying to raise," said Rich Gray, an attorney with Bergeson, Eliopoulos, Grady, & Gray. However, he added: "It does say that Microsoft is not in any way cowed by the strong language the judge issued in striking down their request to remove the special master."

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. Microsoft contends that the antitrust settlement specifically gives it the right to integrate products.

Jackson appointed Lessig, an expert in Internet and computer law, to study the matter and make a recommendation. In the meantime, the judge ordered Microsoft to separate all Internet software from its operating system products.

That preliminary injunction is now on appeal with a three-judge panel that legal analysts say is likely to lend Microsoft a sympathetic ear. They are Stephen Williams, Laurence Silberman and Raymond Randolph.

All three jurists are considered conservatives and skeptical of governmental regulation, said professor William Kovacic of George Mason University School of Law. Now that they have been chosen, the judges are likely consider all subsequent appeals raised in the case, including today's motion concerning the special master.