Lessig insists on impartiality

The computer law expert assigned to the antitrust battle between Microsoft and the Justice Department assured the court last week he is not biased against either party and called characterizations to the contrary "misleading."

In a sworn declaration filed in U.S. District Court in Washington,

Lawrence Lessig

visiting Harvard Law School professor Lawrence Lessig responded to contentions Microsoft made earlier this month that he was biased against the software giant. The company based its accusations primarily on a June email sent to a lawyer at browser archrival Netscape Communications, in which Lessig equated installing Microsoft's Internet Explorer browser with having "sold [his] soul."

"I do not have any personal bias or prejudice concerning either of the parties to this case and no personal knowledge of disputed evidentiary facts concerning the proceedings," Lessig wrote in the declaration, which was filed last Wednesday and made available over the weekend. "Neither do I believe that one who considered the facts in context could reasonably question my impartiality."

Lessig filed the statement at the request of Judge Thomas Penfield Jackson, who designated the professor a "special master" and charged him with collecting evidence and making a recommendation in the case by May 31. The Justice Department brought the case in late October, alleging that Microsoft requirements that Internet Explorer be shipped with Windows 95 violated an antitrust agreement reached two years earlier. Microsoft has vigorously fought the charges, arguing that the 1995 consent decree gives it specific permission to integrate products.

Microsoft opposed Jackson's appointment of Lessig almost immediately, arguing that the case didn't warrant such an extraordinary measure. It further argued that Lessig's past writings demonstrated a bias, a charge that was bolstered earlier this month when Microsoft pointed to an email Lessig had sent Peter Harter, Netscape's global public policy counsel.

On Wednesday, two days after Microsoft appealing Jackson's decision, the judge denied Microsoft's request in a blistering ruling, calling the company's accusations "trivial" and "defamatory."

Lessig sent the email to Harter after installing Internet Explorer on his Macintosh computer and then experiencing problems with Netscape Navigator, which already was installed on Lessig's system. In the email he asked if the installation of IE could have caused a problem with Navigator's bookmarks and compared the installation to selling his soul, adding that another Harvard law professor suggested suing Microsoft over it.

Microsoft immediately jumped on the email as proof that Lessig was biased, characterizations Lessig said in his declaration were "misleading."

"The email in question is one of at least 4,000 emails that I have sent to various people over the course of the last 11 months, many to friends, and most written with the informality of a telephone call," Lessig wrote. He went on to say that when viewed in proper context they showed no bias against Microsoft.

"The email was sent to a friend at Netscape who I expected would tease me for installing a competitor's browser," Lessig added. "Its meaning in context was not the confession of some profound 'Faustian bargain.' It was instead a facetious response to an anticipated tease in an email between friends."

A Microsoft spokesman declined to comment on Lessig's declaration but reiterated the company's opposition to any special master in general and to Lessig in particular.

"We still are concerned by the lack of impartiality, or at least the appearance of a lack of impartiality," said Microsoft's Mark Murray. "Just as important as our concerns over impartiality, we continue to believe that the issues in this case should not be delegated to a nonjudicial authority."

Lessig also responded to other accusations of bias levied by Microsoft. One of them concerned a Harvard course about business aspects of the Internet, which sometimes discussed Microsoft's business practices. The company said Lessig had participated in a portion entitled, "Should Microsoft be allowed to swallow the Net?" While summaries of other portions were available on the Web, Microsoft pointed out to Lessig in a January 5 letter that the section on Microsoft had been removed.

"The question is why it has been removed and what it would have revealed," the software giant's letter stated.

Lessig responded that the Web summary was likely removed after the student who posted it graduated from Harvard last year. He added that the Microsoft section featured a debate between Microsoft foe Gary Reback and one of the company's attorneys, Richard Rule.

"While I do not remember fully the scope of the exchange, I do remember that I did engage Reback quite forcefully and skeptically," Lessig wrote. "I did this not because I had come to a view about the matter being discussed, but because, as an academic, asking questions is my job."

He went on to say that Reback was not pleased. "In the end, after being told that I was a 'lawyer from Yale,' he dismissed my comments, saying 'at Yale they don't teach any cases.'" Lessig took his law degree from Yale University.

Reback told CNET's NEWS.COM that he did not recall the specifics of the debate but that Lessig's characterization sounded accurate.

"I don't remember what [Lessig's] question was, but it was not sympathetic, and I do recall that I made a sarcastic comment about it," the attorney said.

Finally, Lessig responded to Microsoft allegations that remarks made in scholarly articles also demonstrated a bias. "I do not believe that either passage evinces bias against the corporation or a judgment about the merits of the case."