Lessig Will Remain Arbitrator of Microsoft-Justice Department Disupte

Despite protests from Microsoft Corp. that he is biased, Professor of Law L. Lawrence Lessig will continue as a special master in the U.S. government's anti-trust suit against the software giant, a Microsoft spokesperson said yesterday.

Microsoft tried to force the Harvard professor to leave the position, alleging that he is a "partisan of Netscape" with "clear bias" against Microsoft.

The allegations came after the Justice Department released an e-mail Lessig wrote to a Netscape executive last year criticizing Microsoft. Lessig wrote that he "sold [his] soul" by installing Internet Explorer (Microsoft's answer to the Netscape's popular Navigator Web browser) on his computer.

Lessig also said that he had discussed the possibility of personal legal action against Microsoft with a law school colleague, Professor of Law Charles R. Nesson '60.

In a Monday letter to Lessig, Microsoft argued that it was impossible for him to adjucate the proceedings in light of his writings.

"Microsoft regards the sentiments expressed by you as...exhibiting clear bias against Microsoft, disqualifying you from any further participation in this case....

"Microsoft...requests that you disqualify yourself immediately," the letter said.

Lessig told Microsoft in a conference call Tuesday afternoon that he will stay on the case, according to Microsoft spokesperson Jim W. Cullanin.

"It was the indication to us on that call that he was planning to stay on that case. We are proceeding as if he is going to remain," he said.

Highly technical evidence

The Justice Department initiated the anti-trust litigation in question last year, arguing that Microsoft illegally tried to gain market share in the Internet browser wars by integrating Internet Explorer and the Windows 95 operating system.

Microsoft controls roughly 90 percent of the operating system market. Until recently, Netscape had a near-total monopoly on Web browser software, but within the last two years Microsoft has captured approximately 40 percent of the market through aggressive marketing of Internet Explorer.

District Court Judge Thomas P. Jackson appointed Lessig as a special master to sift though the "extensive highly technical evidence" in the case in December.

Lessig was charged with proposing "findings of fact and conclusions of law for consideration by the court," with the court making final determinations.

Microsoft filed a motion against the court appointment of the special master last week, prompting the government to file a rebuttal on Monday. Microsoft will file a response to the government rebuttal this coming Monday, Cullanin said.

According to a Justice Department official, who spoke on the condition of anonymity, the department decided to release the e-mails despite the internal belief that the messages were irrelevant.

"As a general matter we believe that the e-mails are not material to the case. We came across the e-mails during our investigation and do not think they are material but thought we would err on the side of caution and provide copies to Microsoft and the courts," the official said.

In addition to the e-mail from Lessig to the Netscape executive, the Department released two e-mails from technical and legal personnel at Netscape to Lessig.

The Mere Appearance of Bias

The mere appearance of bias must be avoided in any arbitration, said Harry Besunder, a member of the New York State Bar Association's Committee on Professional Responsibility.

"When you're talking about any person who acts as an arbitrator...the parties have to be assured that they are totally unbiased and that their internal prejudice will not affect their ultimate determination," he said.

Leslie W. Abramson, a professor at the University of Louisville and the author of Judicial Disqualification, applied this doctrine to the Lessig case, saying Lessig's impartiality "might reasonably be questioned."

"The extent to which personal bias is a disqualifying factor is the function of what judges say," he said.

"If he gave a [general] speech or wrote an article I don't see any problem," Abramson notes. "It sounds to me that he has gone beyond any general comments."

The Justice Department's rebuttal to Microsoft's petition, written by Assistant Attorney General Joel I. Klein, counters that the e-mails do not create "any reasonable indication that Professor Lessig is biased against Microsoft."

"[Microsoft's] assertions are unfounded and overblown and depend largely on assumptions and conjecture," it read.