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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.

With a federal judge's designation last night of a special court officer to gather and sort through evidence in the Justice Department's antitrust case against Microsoft (MSFT), the matter is about to take an abrupt turn.

Gone will be the dueling press conferences and public revelations of supposedly outrageous behavior, See special report: MS-DOJ case in court 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.

In his ruling, Jackson refused to find Microsoft in contempt of the court order because he said the company's interpretation of the contested consent decree was "plausible." He quickly added, however, that the software giant's reading of the order was not necessarily correct. A major question in the case is whether or not a provision allowing Microsoft to integrate new capabilities into its operating system permits the company to tie IE to Windows 95.

By all accounts, these are exactly the kind of prickly technical questions Lessig is highly qualified to take on. A constitutional scholar earlier in his career, Lessig was one of the first to delve into the numerous legal issues that have arisen along with the Internet.

"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."

Post gives Jackson points for his choice in making the appointment because, he noted, the difficult technical issues in the case warrant scrutiny by an expert.

"This case makes no sense if you don't understand the technology," added Post. "[Lessig's appointment] is a recognition that you can't pretend this is just another antitrust case, like monopolizing the market for shoes or typewriters."

Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady, & Gray in San Jose, California, concurred. "This is a good judge admitting that this is an area he needs help in."

Lessig has until May 31 to sort through evidence in the case and issue a final report to Jackson, who has given the special master broad discretion in how he collects and weighs evidence. Lessig has several options for conducting the intensive fact-finding phase, including ordering each side to submit written briefs, debate issues in hearings, or elicit testimony from experts.

It is not apparent which path Lessig will take, or whether he will use a combination of some or all of those means. His report will not be binding on Jackson, but it is likely to carry a great deal of weight.