Microsoft Asks Special Master to Step Aside, DOJ Defends Him

Microsoft Corp. today asked a Harvard University law professor appointed special master in the U.S. Department of Justice's (DOJ's) antitrust case against the software giant to step down, arguing that e-mails he sent to Netscape Communications Corp. executives show he is biased against Microsoft.

Microsoft Corp. today asked a Harvard University law professor appointed special master in the U.S. Department of Justice's (DOJ's) antitrust case against the software giant to step down, arguing that e-mails he sent to Netscape Communications Corp. executives show he is biased against Microsoft.

"We sent a letter to Lawrence Lessig today asking him to disqualify himself as special master immediately," said Microsoft spokesman Greg Shaw.

Meanwhile, the DOJ argued in a court filing today that Microsoft's previous challenge to the special master last month should be denied because Microsoft has not proved that he is biased. Microsoft can still file a motion to disqualify Lessig on the basis of bias, however, the DOJ said.

The DOJ's filing included as an appendix three e-mail exchanges from July 1997 between Lessig, Peter Harter, public policy counsel for Netscape, and Netscape employee Eric Bradley, identified as senior network systems administrator. The DOJ stated that it sent the e-mails to Microsoft today as well. Lessig will discuss the e-mails during a conference call scheduled for 4:30 p.m. EST Jan. 6, according to the DOJ filing.

After stating that "Charlie Nesson thinks we should file a law suit," Lessig complains to Harter 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 writes.

According to the e-mails, Harter referred Lessig on to Bradley, who said he had "seen/heard of many instances where MSIE has changed all the Netscape HTML documents on a Windows 95 machine to IE icons, so that when the user doubleclicked any HTML document on their computer, IE would be the browser that was opened, even if the default browser was set to Navigator/Communicator." Netscape employee Bradley goes on to say,"This is the kind of blatant anti-competition strategy that only Microsoft can get away with. ... I really do hate that company."

In its letter to Lessig today, Microsoft said the e-mails prove he is biased. "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 this case," the letter states. "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, and thus that you cannot be seen to be impartial in this case."

Microsoft also criticizes Lessig for participating in a forum entitled "Business and the Internet: Strategy, Law and Policy," which included a session on Feb. 24, 1997, entitled "Should Microsoft Be Allowed to Swallow the Net?" One of the coordinators of the forum was Harvard law professor Charles Nesson, Microsoft said. Participants at the session discussed whether Microsoft had engaged in anticompetitive behavior by including IE in Windows 95, and one of the speakers was Gary Reback, Netscape's outside antitrust counsel, Microsoft said.

"You apparently were at this session and asked Mr. Reback questions about 'what sort of a solution he would like to see embodied in a decree against Microsoft,' -- presumably a reference to a new decree resulting from a hypothetical government enforcement action against Microsoft (see http: //roscoe.law.harvard.edu/HyperNews/get/www/courses/-techseminar97/calendar/discussions/session7_discussion.html/7.html.)," Microsoft's letter to Lessig said.

U.S. District Court Judge Thomas Penfield Jackson issued a preliminary injunction in early December ordering Microsoft to stop requiring PC manufacturers to preinstall 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 Microsoft from tying the licensing of one product to licensing of another product, Jackson said it was still to be determined whether Microsoft was violating 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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