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MS, special master at odds

Microsoft is formally seeking the disqualification of "special master" Lawrence Lessig, who has refused to step down.

Microsoft said it will formally seek the disqualification of a "special master" appointed to hear evidence in an antitrust case the Justice Department has brought against the software giant.

As reported earlier, however, See special report: MS-DOJ case in court in a conference call with the parties yesterday, computer law professor Lawrence Lessig refused to step aside from the high-profile dispute, Microsoft said. In a letter sent Monday, the company insisted that he remove himself from the dispute because of his alleged anti-Microsoft bias. (See related story)

Microsoft wrote Lessig the letter after learning he had written what the company said were disparaging remarks to an attorney at its archrival Netscape Communications. Two weeks ago, Microsoft had asked a federal judge reconsider his decision to appoint a special master at all in the case.

During yesterday's two-and-a-half-hour conference call, Lessig, a visiting professor at Harvard Law School, said he would not step down, according to a Microsoft spokesman.

"We think this is very unfortunate," said Microsoft's Mark Murray, who added the company will cite the email as evidence that Lessig is biased next Monday, when it is scheduled to file its next court brief. "We will be including a motion to have Professor Lessig disqualified due to his lack of objectivity."

A Justice Department official said the government doesn't believe the email shows Lessig is biased. The official declined to discuss the conference call. Lessig has repeatedly declined to discuss matters concerning the case.

The dispute over the special master is only the latest skirmish in a battle that has grown increasingly bitter. In late October, the Justice Department accused Microsoft of violating terms of a 1995 consent decree by requiring licensees of Windows 95 to carry the Internet Explorer browser. It asked U.S. District Judge Thomas Penfield Jackson to fine the company $1 million for each day it violated the court order.

Jackson stopped short of finding Microsoft in contempt of court and instead appointed Lessig to look into the charges and issue a recommendation by May 31. In the meantime, he ordered Microsoft to offer its Web browsing software separately from Windows.

Microsoft has fought the Justice Department--and to some extent, Judge Jackson--at virtually every turn. In late December, it appealed the preliminary injunction with a higher court and asked Jackson to revoke his appointment of a special master.

The company said yesterday that it would step up its opposition to the special master by specifically asking that Lessig be disqualified. Previously, Microsoft had argued that the appointment of any special master was an extraordinary measure that was not justified by the circumstances of the case.

In asking Lessig to step down as special master, Microsoft cited transcripts of an email the professor had sent to Netscape last June. In it, he compared installing Internet Explorer to having "sold [his] soul," a remark Redmond's attorneys said showed a strong bias.

Murray said yesterday that the circumstances surrounding the matter require strong action. "We continue to have serious concerns about Professor Lessig's lack of objectivity in this matter and about the entire notion of a special master process."

He declined to give further details about the conference call, saying that both sides agreed to keep special master proceedings confidential. Murray added that Lessig will continue to preside over hearings for the time being, and that Microsoft will fully participate, as required by law.