Microsoft (MSFT) has vowed to fight the
appointment of a "special master" assigned to collect and weigh evidence
in its high-stakes, high-profile antitrust battle with the
Justice Department on the grounds that the computer law expert named may be biased.
In a court
document filed late yesterday, 
Microsoft attorneys asked U.S. District
Judge Thomas Penfield Jackson to reconsider his decision to name visiting
Harvard Law School professor
Lawrence Lessig as a court officer in the case.
Based on numerous articles the scholar has penned over the years, Microsoft
stated it "is concerned that Professor Lessig may have already formed views about
Microsoft and the issues in this case based on extra-judicial sources," according to the brief. "These preconceived notions that Professor Lessig apparently
has about Microsoft and the government's proper role in the development of
software products present a compelling basis for objecting to Professor
Lessig's appointment as a special master."
Microsoft also reminded Jackson that, under federal law, the appointment
of special masters "shall be the exception and not the rule," to be made only
after compelling evidence demonstrates the existence of special circumstances. Microsoft asked Jackson to temporarily suspend the designation until the company can learn more about Lessig, and vowed immediately to appeal the matter with a
higher court if Jackson denies the request.
The case stems from a petition the Justice Department filed in late October
accusing Microsoft of violating the terms of a 1995 antitrust settlement. The
government contends that Microsoft's demands that Windows 95 licensees carry
the Internet Explorer browser violate a provision of the agreement intended to ban the "bundling" of
products. Microsoft counters that the consent decree specifically allows it
to integrate products into the operating system. Two weeks ago, Jackson
appointed Lessig to make a thorough inquiry into the facts of the case and
ordered Microsoft to halt the practice in the meantime.
Microsoft attorneys said a number of articles Lessig has written in the past may
demonstrate that he hold biased opinions about the issues involved in the case. For instance, in one legal journal, Lessig allegedly "predicted that the government will become more deeply involved in the regulation of computer software products." In another, he claimed Microsoft's efforts to "mimic" competitors' operating
systems were "futile," according to the filing.
A Justice Department spokesman said the agency would respond to Microsoft
in court documents to be filed Monday.
The court document was one of three Microsoft filed yesterday in the case,
which is growing increasingly bitter. In a second filing, Microsoft
responded to Justice Department allegations that the Redmond, Washington
software giant is violating Jackson's preliminary injunction. Microsoft
also submitted a brief to a federal appeals court in Washington, D.C., that
seeks to have the injunction overturned immediately.