Harvard Professor Files Brief in Microsoft Case

A Harvard law professor filed a much-anticipated analysis of the Microsoft antitrust case on Tuesday, suggesting a way the presiding judge could find the company's practices illegal.

Berkman Professor of Entrepreneurial Studies Lawrence Lessig, an expert in the field of cyber-law at Harvard Law School (HLS) and a fellow of HLS's Berkman Center for Internet and Society, offered his friend-of-the-court brief at the request of U.S. District Judge Thomas Penfield Jackson.

Although Lessig's filing did not technically advocate for either side, Microsoft had officially protested Jackson's decision to seek Lessig's advice and the U.S. Department of Justice had filed a brief supporting the professor's role. Jackson overruled Microsoft's objection.

Lessig's filing is widely seen as supporting the government, because of his argument that Jackson could disregard a 1998 federal appeals court's ruling. The 1998 case ruled Microsoft could bundle its Web browser, Internet Explorer and its Windows operating system if there was a "plausible claim" that consumers benefit from having both products together.

Lessig considered one issue in particular--whether Microsoft engaged in illegal "tying," by integrating Internet Explorer into Windows. Tying refers to a firm selling one product and requiring the buyer to purchase a different, "tied" product.

The Justice Department, along with 19 state attorneys general, has accused Microsoft of forcing computer manufacturing firms to buy a Windows version which includes the Explorer browser.

Microsoft has argued that Internet Explorer is so tightly integrated into Windows that the two are not separate products. The close relationship between the Internet and operating system products allows consumers to browse files on their computers' hard drives as easily as they view Web pages.

The firm has also argued that computer programmers can more easily develop programs that need to communicate with Internet Explorer and Windows because Microsoft provides ready-made computer code.

"This architecture has obvious benefits," Lessig wrote.

But he went on to write that a recent court ruling closely related to the current case--a ruling that supported Microsoft's interpretation of the facts--might not apply to the present situation.

Although the issues are similar, that decision technically was made in a different case--one where the Justice Department accused Microsoft of violating a "consent decree," an agreement with the federal government not to bundle Internet Explorer and Windows.

Lessig said the current situation is different because the government has accused the company of violating antitrust law, not just a consent decree.

There is "no reason to read an opinion interpreting a consent decree as interpreting the contours of antitrust law," he wrote.

In another section of the brief, Lessig took Microsoft and the Justice Department to task for not recognizing that antitrust law is "unsettled" on the question of tying software packages.

"Both sides are too quick to minimize the difficulty of how tying law properly applies to software products," he wrote.

Relationships between products are fuzzier with software than with physical goods and services. One of the cases Lessig referred to several times was a well-known 1992 U.S. Supreme Court decision ruling which found that Kodak was guilty of tying.

Because Kodak manufactured certain machines but refused to provide necessary parts to other firms that wanted to service the machines, the court ruled Kodak had tied service on the machines to the equipment itself.

Jackson, who has been involved with the Microsoft litigation for more than three years, earned a reputation for looking into technical questions himself, rather than relying only on the parties involved.

In his brief, Lessig supported that philosophy: "I am not a skeptic of courts' ability to understand how software functions," he wrote.

Three weeks from now, the two sides will begin closing arguments, after which Jackson will rule on the legal questions of the case.

On Nov. 5, Jackson issued "findings of fact," which both sides agreed were unfavorable to Microsoft. In the findings, Jackson determined that Microsoft has "monopoly power" in the market for PC operating systems.

For now, the two sides are continuing negotiations under a mediator's watch. Lessig, who is on leave from HLS this year, is in Berlin and could not be reached yesterday.