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Appeals Court Pulls Lessig Off Microsoft Case

May be reassigned to case after hearings reconvene in April.

By Brian McWilliams, PCWorld   

An appeals court on Monday pulled special master Lawrence Lessig off the Microsoft case, pending a hearing in late April. Some observers read the move as a sign that the three-judge panel is leaning Microsoft%squots way and could eventually overturn U.S. District Judge Thomas Penfield Jackson%squots preliminary injunction, which forced Microsoft to offer a version of Windows 95 without Internet Explorer.

But Joe Sims, a veteran antitrust litigator with the Washington, D.C., firm of Jones, Day, says that%squots reading too much into the tea leaves.

If they think Microsoft has raised a serious issue, which I think this indicates they do, said Sims, then it probably is sensible for them to hold things until they decide that serious issue because otherwise Microsoft has to go through a lot of time and effort, which might be proved to be unnecessary and inappropriate.

Sims says it%squots possible the appeals court could rule that Microsoft did not violate the 1995 consent decree, overturning the lower court%squots preliminary injunction. But the Department of Justice may not view that outcome as a total defeat. After all, says Sims, in the January 22 settlement agreement, Microsoft said it would continue offering Windows 95 decoupled from IE for 90 days after the preliminary injunction is lifted.

As things stand right this minute, Justice has the short term relief it was after in the form of the settlement, said Sims. But the price it paid for that has been to get the issue of its authority under the consent decree up into the court of appeals--and that is not the way [Justice] would have liked to have got it up their.

It%squots widely thought now that the Justice Department is putting together a new legal attack on Microsoft, this one aimed at Windows 98 and Microsoft%squots business strategy. But Sims says Justice Department is unlikely to just run out the clock on the current contract dispute over the consent decree.

Justice initiated the proceeding that led Jackson to do what he did and Microsoft didnt like it, said Sims. So its going to support what Jackson did until it loses. So I think [Justice will] go ahead and prosecute this to the end. If nothing else they would rather win it than lose it, but I dont think that if it does lose it, unless it loses it in some weird way that somehow constrains a separate action, which would be quite unexpected here, whether it wins it or lose it probably is not going to have much effect on what if anything it does next.

One person who will be hoping that the Justice Department fights hard at the April 21 appeals court hearing, according to Sims, is Lawrence Lessig. Sims says the appeals court could still decide to allow the Harvard Law professor to continue to advise Jackson on legal issues affecting the lawsuit. If it doesn%squott, Lessig will have lost the chance to make his mark on the biggest cyberspace legal case to date.

If they eventually agree with Microsoft, said Sims, then Lessigs not only out of this case but out of any other case in any kind of neutral capacity because he would have been determined by the court of appeals to not be sufficiently neutral.