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Judge Rules Against Microsoft, Keeps Lessig as Special Master

Microsoft%squots argument for removing Lessig called %dquotdefamatory.%dquot

By Torsten Busse, PCWorld   

Microsoft had asked the judge to remove Lessig from the case, claiming he is biased. The company pointed to an e-mail in which Lessig complained to a Netscape Communications employee that his Navigator bookmarks were %dquotscrewed up%dquot after he installed Internet Explorer 3.0 on his Macintosh computer. Microsoft also complained about Lessig%squots participation in a session entitled %dquotShould Microsoft Be Allowed to Swallow the Net?%dquot in a forum on Internet law and policy in February 1997.

In a strongly worded ruling, Jackson said he was denying Microsoft%squots request to remove Lessig without %dquotfurther comment%dquot and said the company failed to offer evidence to substantiate its allegation that Lessig is biased.

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

%dquotThe bases given for those accusations are both trivial and altogether nonprobative. 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,%dquot Jackson wrote.

The Department of Justice had no comment on the ruling. A Microsoft spokesperson said the company was disappointed but that it will fully cooperate with Lessig.

%dquotThe judge has ruled and we%squotll work with Lessig and provide all the information he needs,%dquot said Microsofts 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 %dquotthinks we should file a law suit,%dquot Lessig complained that his Netscape Navigator bookmarks were %dquotscrewed up%dquot after he installed Internet Explorer 3.0 on his Macintosh. %dquotOK, now this is making me really angry,%dquot Lessig%squots e-mail began. He explained that he wanted to install IE on his Macintosh in order to enter a contest to win a PowerBook 3400. %dquotSold my soul, and nothing happened,%dquot 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 preinstall the IE browser as a licensing condition for Windows 95. While saying the Justice Department had not convinced him 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 Justice Department 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.