Judge blasts Microsoft over attempt to roll court expert

Federal District Judge Thomas Jackson has ruled that Harvard University law professor Lawrence Lessig will continue to act as 'special master' in the antitrust case brought against Microsoft by the U.S. Department of Justice (DOJ). In a strongly worded ruling Jackson said he was denying Microsoft's request to remove Lessig without 'further comment' and said the company failed to offer evidence to substantiate its allegation that Lessig is biased. Jackson also criticised Microsoft for making accusations about Lessig and releasing to the media an email he sent to a Netscape employee. He described the accusations as 'trivial ... defamatory [and] not made in good faith.'

Federal District Judge Thomas Jackson has ruled that Harvard University law professor Lawrence Lessig will continue to act as "special master" in the antitrust case brought against Microsoft by the U.S. Department of Justice (DOJ).

Microsoft had asked the judge to remove Lessig from the case claiming he was biased. The company pointed to an e-mail in which Lessig complains to a Netscape employee that his Navigator bookmarks were "screwed up" after he installed Internet Explorer 3.0 on his Macintosh. Microsoft had also complained about Lessig's participation in a session entitled "Should Microsoft Be Allowed to Swallow the Net?" in a forum on Internet law and policy in February 1997.

In a strongly worded ruling Jackson said he was denying Microsoft's request to remove Lessig without "further comment" and said the company failed to offer evidence to substantiate its allegation that Lessig is biased.

Jackson also criticised Microsoft for making accusations about Lessig and releasing the e-mail to the media.

"The bases given for those accusations are both trivial and altogether non-probative. They are, therefore, defamatory, and the Court finds that they were not made in good faith. Had they been made in a more formal manner they might well have incurred sanctions," Jackson wrote.

The DOJ had no comment on the ruling. A Microsoft spokesman said the company was disappointed but that it will fully cooperate with Lessig.

"The judge has ruled and we'll work with Lessig and provide all the information he needs," said Microsoft spokesman Jim Cullinan.

The e-mail in question was sent by Lessig to Peter Harter, public policy counsel for Netscape, in July 1997. After stating that another Harvard law professor "thinks we should file a law suit," Lessig complains that his Netscape Navigator bookmarks were "screwed up" after he installed Internet Explorer 3.0 on his Macintosh. "OK, now this is making me really angry," Lessig's e-mail begins. He explains that he wanted to install IE on his Macintosh in order to enter a contest to win a PowerBook 3400. "Sold my soul, and nothing happened," Lessig wrote.

Last month, Microsoft officially objected to the appointment of a Special Master, or adviser to the court, saying the company should have had a say in who was appointed. The company then appealed earlier this month directly to Lessig, urging him to disqualify himself.

Jackson issued a preliminary injunction in early December ordering Microsoft to stop requiring PC manufacturers to pre-install the IE browser as a licensing condition for Windows 95. While saying the DOJ had not convinced him that Microsoft was violating a 1995 antitrust consent decree barring the software vendor from tying the licensing of one product to the licensing of another product, Jackson said it was still to be determined whether Microsoft was actually in violation of the consent decree. The DOJ claims Microsoft is not abiding by the injunction, while Microsoft claims it is. Lessig will gather information on the issue and report to the court by May 31.

(Elinor Mills contributed to this report.)

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