MS on Trial Lawrence Lessig's reappearance in the Microsoft case is a complete surprise and certainly puts pressure on Microsoft to consider settlement very carefully.
Bill Gates is likely to hold out to the very last moment, as he is extremely sensitive to criticism and losing face. As it is nearly two years since Lessig last appeared, we hope readers will find a background sketch of his earlier involvement in the case useful.
Lessig, who describes himself as a liberal, is now Berkman Professor of Law at Harvard Law School, in the Center on Law and Technology. He spent from 1991 to 1997 at the Chicago Law School.
He first studied economics and management at the University of Pennsylvania, and then philosophy at Trinity College Cambridge before going to the Yale law school and subsequently clerking for Judge Posner of the 7th Circuit Court of Appeals, and Justice Antonin Scalia of the Supreme Court.
A 1996 article on the constitution in cyberspace by Lessig was cited in a Supreme Court decision. Academics who know Lessig say that he was influenced by Posner, but is not philosophically aligned with him. His special areas of expertise include constitutional theory and cyberspace, and his book Code and Other Laws of Cyberspace is officially published on 1 December, with advance reviews being very positive.
Lessig's work in developing the Post-Chicago School centres on "finding a way to systematically talk about the different things that regulate conduct and social behaviour. Law is one of them, but there are other hidden ways in which people are regulated. Markets regulate, social norms regulate, and especially in the world of technology... codes regulate".
Lessig has criticised the Clinton administration for the use of private agencies for domain name regulation, since it has removed public accountability. He is therefore likely to favour a government-regulated approach to a Microsoft remedy.
Judge Jackson said in his appointment of Lessig as a Special Master on 11 December 1997 that it was "in the interest of justice to resolve as expeditiously as possible the complex issues of cybertechnology and contract interpretation connected therewith".
Lessig would "propose findings of fact and conclusions of law for consideration by the Court", which perhaps shows that Judge Jackson had it in mind to separate the fact and legal findings nearly two years ago. Microsoft's ultimately successful attempt to have Lessig removed -- at least temporarily -- suggests that Microsoft had formed the view that Lessig posed serious problems.
It was all very well having partly-informed lawyers presenting a case to a judge who had seen Judge Sporkin struck down, in part for trying to become better informed about Microsoft's business, but a lawyer able to understand the technical issues was hardly good news for Microsoft.
The swiftness and vehemence of Microsoft's effort to remove Lessig suggests that Microsoft felt very seriously threatened. Microsoft whinged in a brief that it had received no notice that the court was contemplating the appointment of a special master and had no opportunity to object.
Microsoft was concerned that Lessig "may have already formed views about Microsoft and the issues in this case based on extra-judicial sources... Lessig has described what he termed Microsoft's futile' efforts to mimic competitors' operating systems software products... Lessig also has recently predicted that the government will become more deeply involved in the regulation of computer software products, which he refers to generically as code' [which] will become the government's tool. Law will regulate code, so that code constrains as government wants".
The DoJ responded that "Microsoft misunderstands its role in the appointment of the special master. It is the province of the Court and the special master to determine whether the special master is suitable".
Lessig has also criticised Microsoft for what he claims is its "absolutely closed" control over "code", implying that the company is a threat to political freedom.
Microsoft obtained copies of June 1997 emails to Peter Harter, a friend of Lessig's who was Netscape's Global Public Policy Counsel, in which he wrote: "This is making me really angry, and Charlie Nesson [Professor of Law at Harvard] thinks we should file a law suit. ... When I installed Internet Explorer 3.0 on my Mac system (only because I wanted to be entered into the contest to win a 3400) ( sold my soul, and nothing happened), the next time I went into Netscape, all my bookmarks were screwed up. Did IE do this?"
Harter arranged a reply from Eric Bradley of Netscape who wrote: "I have heard horror stories from other people about their installs and subsequent fight to get their computer back in working order, among other problems. I have 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 real document on their computer, IE would be the browser that was opened, even if the default browser was set to Navigator/Communicator.
"It was a nightmare trying to get the computer to get back to the point where they could open their docs with Netscape products again. I believe the only way we were able to eventually do it was to completely delete Windows 95 and reinstall it from scratch. This is the kind of blatant anti-competition strategy that only Microsoft can get away with. I'd wager that if Netscape Communicator automatically changed all the IE Icons to Netscape Icons when it was installed, Netscape would be slapped with a lawsuit... I really do hate that company."
Microsoft faxed Lessig asking him to disqualify himself on 5 January 1998. The next day there was a teleconference between Lessig, DoJ lawyers and Microsoft lawyers in which Lessig said he would not step down and that he had been instructed by Judge Jackson to say nothing more than: "I've considered the matter, the request from Microsoft... to disqualify myself... I have concluded that I do not believe that it would be an impediment to judging impartiality, and therefore, I will not recuse myself."
On 14 January, Judge Jackson denied Microsoft's demand to sack Lessig in a strongly-worded Order that noted: "Microsoft has reiterated certain accusations made previously to the Special Master himself (and released to the Press) questioning the Special Master's integrity and impartiality. The bases given for these 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 have incurred sanctions."
The judge was also upset that Microsoft failed "to offer evidence, sworn or unsworn, to give substance or credence to its innuendo of bias or prejudice". It was not a good move by Microsoft.
Microsoft appealed and the appellate court quickly sided with Microsoft, saying in an Order on 2 February that Lessig's appointment would be stayed, which gave Microsoft at least a further three months to get Windows 98 and IE4 completed, which is just what Microsoft wanted.
A significant reason for Microsoft to settle is the principal of collateral estoppel by which Microsoft could prevent other antitrust cases that relied on the precedent of the present case. There is every reason to suppose that Lessig's recommendations will be very well formulated, and scare the pants off Microsoft. ®