Harvard Professor Won't Disqualify Himself, Microsoft Says

A Harvard University law professor appointed by a federal judge to advise the court in the U.S. Department of Justice's antitrust challenge to Microsoft Corp. has indicated that he will not step aside, a Microsoft spokesman said.

A Harvard University law professor appointed by a federal judge to advise the court in the U.S. Department of Justice's antitrust challenge to Microsoft Corp. has indicated that he will not step aside, a Microsoft spokesman said.

"We learned that Professor [Lawrence] Lessig does not plan to disqualify himself," said Adam Sohn of Microsoft, which yesterday asked Lessig to do so, arguing that he is biased against Microsoft.

Officials from Microsoft, the Department of Justice (DOJ) and Lessig held a conference call today. Sohn said he was not on the call and that Microsoft was keeping specifics of what transpired confidential. Microsoft will ask the court before Jan. 12 to disqualify Lessig, Sohn added.

DOJ spokesman Michael Gordon said his agency too was "not talking publicly" about what was said during the telephone conference. Gordon said the conference was scheduled before Microsoft urged Lessig to step down yesterday. Also yesterday, the DOJ filed papers in the U.S. District Court for the District of Columbia defending Lessig's objectivity.

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. Yesterday, Microsoft appealed directly to Lessig, asking him to disqualify himself.

Microsoft argued that Lessig is biased, pointing to e-mails released by the DOJ yesterday from July 1997 between Lessig and Peter Harter, public policy counsel for Netscape Communications Corp. 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.

U.S. District Court Judge Thomas Penfield 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.

Microsoft, based in Redmond, Washington, can be reached at +1-425-882-8080 or on the World Wide Web at http://www.microsoft.com/.

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