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Lessig email called smoking gun

As new questions surface about a special master assigned to the Microsoft-DOJ case, the government refutes claims that his appointment is inappropriate.

As new questions surfaced about the partiality of a special master assigned to the battle pitting the Justice Department against Microsoft, the government today refuted the software giant's claims that the appointment of the computer expert is inappropriate.

In a court brief filed today, See special report: MS-DOJ case in court the Justice Department supported the appointment of visiting Harvard Law School professor Lawrence Lessig to collect and weigh evidence in the increasingly contentious dispute. Two weeks ago, Microsoft challenged the designation, arguing that the circumstances of the case didn't warrant such an extraordinary measure, and that in any event, Lessig had betrayed bias against the company in scholarly articles.

Today's filing came just hours after Microsoft stepped up its criticisms in a letter that raised new questions about whether the specially appointed court officer can give an impartial hearing of the case.

After receiving a copy of the letter, which was addressed to Lessig, the Justice Department released an attached transcript of an email Lessig sent in June to a senior executive at Microsoft archrival Netscape Communications. In it, Lessig compared installing Microsoft's Internet Explorer to having "sold [his] soul" and said a colleague had advised him to take the company to court over an install feature in the browser.

"I installed Internet Explorer 3.0 on my Mac system only because I wanted to be entered into the contest to win a [Apple PowerBook] 3400 ('sold my soul, and nothing happened')," the transcript quotes Lessig as writing to Netscape's global public policy counsel Peter Harter. "The next time I went into Netscape, all my bookmarks were screwed up."

In its letter to Lessig, Microsoft wasted no time in citing the email as proof that he can not hear the case objectively. "Needless to say, Microsoft regards the sentiments expressed by you and your acquaintances at Netscape as exhibiting clear bias against Microsoft, disqualifying you from any further participation in the case," Microsoft attorneys wrote.

"Netscape is a fierce rival of Microsoft in developing and marketing Internet-related software," they added. "The mere fact that you would raise a complaint about Microsoft with an acquaintance in the Netscape legal department, expressing the views you did, indicates that you are--or, certainly, may reasonably be perceived to be--a partisan of Netscape."

Microsoft attorneys also asked Lessig about a February conference he attended at Harvard that discussed legal aspects of business on the Internet. One forum that Lessig participated in was entitled "Should Microsoft be allowed to swallow the Net?" according to the letter sent today. While summaries for other panels are available on Harvard's Web site, the letter alleged, the summary relating to the Microsoft conference has been removed. "The question is why it has been removed and what it would have revealed," the letter states.

In its filing today, the Justice Department disputed the charges by arguing that Microsoft has produced no evidence that proves Lessig is biased. "These assertions are unfounded and overblown and depend largely on assumptions and conjecture," the agency argued. "They do not appear to raise any credible basis to conclude that the email, viewed in light of all the facts of this case, relates to any relevant issues or creates any reasonable indication that Professor Lessig is biased against Microsoft or has a 'closed mind' about any of the matters in dispute."

But one attorney who has worked with specially appointed court officers begged to differ, saying the email could be damaging to the government's attempts to defend the appointment of the special master. "In using the phrase 'sold my soul,' Lessig has thrown his impartiality into legitimate question," said John Steele, an attorney at Fenwick & West in Palo Alto, California.

Steele, who has taught legal ethics at the University of California at Berkeley's Boalt Hall School of Law, said the standard for the disqualification of a court official is whenever the person's impartiality might be reasonably questioned, adding that "the private nature of Lessig's contacts with Netscape could lead reasonable minds to question whether he's already chosen sides."

At the heart of the case is a Microsoft requirement that licensees of Windows 95 carry Internet Explorer. In late October, the Justice Department said the practice violated a 1995 consent decree and asked U.S. District Judge Thomas Penfield Jackson to fine Microsoft $1 million for each day it defied the order. Microsoft countered that the consent decree specifically allowed the company to integrate new features into its Windows products.

On December 11, Jackson appointed Lessig to collect and weigh evidence so that he could make a recommendation in the case by May 31. In the meantime, he ordered Microsoft to distribute Internet Explorer separately from any form of its Windows operating software. Microsoft has appealed the preliminary injunction with a higher court and asked Jackson to reconsider his appointment of Lessig.

In today's court filing, the government used Microsoft's own words to argue that the complex issues surrounding the case, combined with the urgency of resolving it, demand that someone with expertise in computers and law gather and weigh evidence.

"Microsoft itself recently told the Court of Appeals that a swift resolution of its pending appeal is necessary not only for its own benefit, but also for third-party software developers and, indeed, for 'significant segments of the United States economy,'" government attorneys argued. "For Microsoft now to contend in this court that exceptional conditions of urgency do not exist is extraordinary."

The government also took issue with the company's contentions that Lessig's past writings indicated he was biased against Microsoft. Specifically, Microsoft complained two weeks ago about three separate scholarly articles, including one in which Lessig allegedly "predicted that the government will become more deeply involved in the regulation of computer software products."

"Having combed Professor Lessig's extensive writings for useful nits, Microsoft has proffered three out-of-context quotes, accompanied by inaccurate and tortured characterizations of his writings, in order to support the notion that Professor Lessig has 'preconceived notions' about 'Microsoft and the government's proper role in the development of software products,' today's brief counters.

"A fuller and fairer reading of Professor Lessig's academic writings suggests merely that he recognizes the new and difficult legal issues presented by the increasing role of the computer in our society generally and the role and effects of cybertechnology in particular," the DOJ added.

But with Lessig's email now coming to light, the government may have a harder time explaining Lessig's sentiments regarding Microsoft. A government official said the Justice Department collected it in the course of its investigation. "Once we came across it, we felt duty-bound to present it to the court and to Microsoft," said the official, who asked not to be named. "We don't believe it is material to the case, but nonetheless we erred on the side of caution and presented it."

The transcript documents three separate exchanges of electronic mail. In the earliest, sent in June--according to people familiar with the case--Lessig asked whether it was possible for a install feature in IE to alter files that pertain to Netscape Navigator.

"OK, now this is making me really angry, and [Harvard Law School professor] Charlie Nesson thinks we should file a lawsuit," the email opened. "But please tell me if this is true." After saying his Netscape bookmarks didn't perform the same after the installation, he asks, "Did IE do this?" He then went on to invite Harter to visit Harvard.

In a subsequent email, Harter responded that he had never used IE himself and had forwarded Lessig's inquiry to Netscape general counsel Roberta Katz and another Netscape employee. In a follow-up message directed to Lessig, Harter and Katz, the employee, Eric Bradley, said he had heard "horror stories" that IE altered certain Mac functions but has no first-hand knowledge. He concluded by saying "This is the kind of blatant anticompetition strategy that only Microsoft can get away with. I'd wager that if Netscape Communicator automatically changed all the IE icons to Netscape icons when it was installed, Netscape would be slapped with a lawsuit by Microsoft so fast it'd make our heads spin."

Netscape representatives declined to comment on the message.

It is unclear if Judge Jackson intends to hold a hearing on the special master issue before issuing a ruling. Microsoft has vowed to take the matter up with an appellate court if Judge Jackson goes ahead with the appointment. Microsoft would have to seek permission from Jackson before it could do so. A separate hearing on the issue of whether Microsoft is in contempt of court is scheduled for January 13.

Microsoft spokesman Mark Murray vowed that the company would aggressively fight the appointment. "We think the issues involved in this case are absolutely critical to consumers and to the future of the software industry, so we think it's vital to have a completely fair and objective process," he said. "We have a great deal of respect for Professor Lessig, but given this kind of smoking-gun evidence of clear bias on his part, he should step down from this case."