Microsoft takes on Lessig again

In a brief filed with a federal appeals court today, Microsoft reiterated its opposition to the appointment of a computer and Internet law expert in the high-profile antitrust case brought by the Justice Department.

The brief, filed with the U.S. Court of Appeals for the District of Columbia, mostly retraces legal arguments raised in earlier court documents. However, it does provide a rare glimpse--albeit solely from Microsoft's perspective--into how proceedings before visiting Harvard Law School professor Lawrence Lessig are going.

Those proceedings began shortly after U.S. District Judge Thomas Penfield Jackson designated Lessig a "special master" in mid-December, directing him to collect evidence in the case and recommend legal findings by May 31.

According to today's brief, "Lessig has injected unnecessary complexity into a relatively straightforward proceeding." The software giant cited "the unusual nature of that proceeding," in saying that two letters Lessig has sent the parties involved in the case demonstrated he "should not be discharging the judicial power of the United States."

Microsoft alleged that Lessig expressed "tentative" views about the case in one letter, dated January 19. The Redmond, Washington, company said the letter "fairly reflects the tenor of the proceedings...which is not directed towards an 'orderly' and 'expeditious' resolution of the 'relevant' legal issues as those terms are ordinarily understood in common-law jurisprudence."

And in an earlier letter, dated January 2, Lessig allegedly apologized to the parties "if the proceeding he is conducting appears to be something from the 'Civil Code.'" Microsoft went on to suggest that "Lessig apparently regards his role as the equivalent of an investigating magistrate in a Continental legal system--as opposed to a neutral judicial officer in an adversary proceeding."

A "Continental legal system" and the "Civil Code" are references to the European legal process, in which magistrates take a much more active role in investigating cases than do judges in the United States.

Neither letter is a part of the public record in the case, and Microsoft declined to provide copies of them, citing a request by Lessig that the proceedings remain confidential.

The case stems from an action the government brought against the software giant last October, which alleged that requiring Windows 95 licensees to preinstall Microsoft's Internet Explorer browser violated terms of a 1995 consent decree. The government asked that Microsoft be found in contempt of court and fined $1 million for each day it continued the offending practice. Microsoft countered that the consent decree specifically allowed it to build new features into its operating system.

On December 11, 1997, Jackson denied the government's motion to find Microsoft in contempt, ruling that its interpretation of the consent decree was plausible. He then charged Lessig with studying the matter in an attempt to decide whether Microsoft's reading in fact was correct. Jackson ordered Microsoft to separate its Internet software from Windows in the interim.

Microsoft has opposed Jackson on just about every issue raised in the case thus far, and now is challenging Jackson's preliminary injunction and his appointment of Lessig before the appeals court. Today's brief responds to opposition papers the government filed earlier this week in response to Microsoft's petition.

In that petition, Microsoft argued that Lessig's appointment delegated too much authority to a private citizen with no binding legal authority, in violation of the Constitution. The software giant also argued that past utterances made by Lessig--including an email message in which he compared installing Internet Explorer to having "sold [his] soul"--showed he was biased against Microsoft.

In its response, the government countered that procedural rules allow for the naming of a special master in cases that carry exceptional circumstances, and argued that taking advantage of Lessig's expertise in computer law was the quickest way to resolve the case. It added that "Lessig has initiated a thorough and comprehensive inquiry designed to determine the relevant legal and technological issues."

In today's brief, Microsoft called that claim "both irrelevant and inaccurate." It went on to reiterate Microsoft's view that a special master can be appointed only after demonstrating that an "exceptional condition" exists in the case, something the software giant alleges the government has failed to do.