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MS objects to special master

Microsoft vows to fight the appointment of a "special master" in its high-stakes antitrust battle on the grounds that the appointee may be biased.

    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, See special report: MS-DOJ case in court 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.