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  Microsoft Judge May Seek Lessig's Views

By Rajiv Chandrasekaran
Washington Post Staff Writer
Friday, September 25, 1998; Page F01

A Harvard University law professor whom Microsoft Corp. managed to eject as a judge's adviser in a legal dispute with the Justice Department earlier this year could return to play a role in the government's antitrust lawsuit against the company, according to sources close to the case.

U.S. District Judge Thomas Penfield Jackson has told lawyers for both sides that he may ask the professor, computer-law expert Lawrence Lessig, to write a "friend of the court" brief summarizing his views on the case, the sources said.

Last December, Jackson tapped Lessig as a "special master" to prepare a report on technical issues raised in an earlier antitrust dispute between Microsoft and Justice. Microsoft formally objected, saying Jackson had overstepped his authority and Lessig was biased against the company. An appeals court eventually sided with the company on the authority issue, and Lessig was forced out.

If Jackson now goes through with his request for an "amicus" brief, the judge could consider Lessig's conclusions when ruling whether Microsoft has violated federal antitrust laws by including Internet-browsing technology in its popular Windows 98 operating system software for personal computers.

Legal specialists said it would be highly unusual for a trial-court judge to request such a brief, and said that the selection of Lessig in particular suggests that the judge is taking a skeptical view of Microsoft's legal arguments.

"It indicates that Judge Jackson may be viewing the case more as [the Justice Department] portrays it, rather than how Microsoft is trying to articulate it," said Steven C. Sunshine, a partner at the Washington law firm of Shearman & Sterling and a former antitrust official in the Justice Department.

Sunshine called Jackson's potential request for an amicus brief "an ingenious move" because it would allow him to solicit Lessig's opinions while avoiding the controversy of naming him a special master again.

"The judge wants somebody to talk to here," said Robert Litan, a former Justice Department official who now is the director of economic studies at the Brookings Institution. "I suspect Microsoft would be pretty nervous about this."

Spokesmen for the Justice Department and Microsoft would not comment on the matter yesterday.

Lessig said in an interview yesterday that Jackson "hasn't formally asked me to do anything." If asked, Lessig said, "Of course, I'd write something for him."

Lessig, who is teaching a class at Harvard this semester titled "The Microsoft Case," said that he likely would focus his brief on technical issues.

"I have no desire to get in the business of advising people how to decide the case," he said. "If there are issues that are raised where expertise is advisable, I would certainly be willing to answer those questions."

In supporting its claim of bias, Microsoft last year cited a July 1997 electronic-mail message that Lessig sent to a lawyer at Netscape Communications Corp., a Microsoft rival, discussing problems Lessig had encountered in using Microsoft's Internet Explorer browser. It starts by stating: "Okay, now this is making me really angry, and Charlie Nesson [a fellow Harvard law professor] thinks we should file a lawsuit."

In a sworn statement submitted to Jackson, Lessig said that he did "not have any personal bias or prejudice concerning either of the parties to this case" and he called the message "a facetious response to an anticipated tease in an e-mail between friends."

Jackson initially dismissed Microsoft's complaints as "trivial" and "defamatory," but a federal appeals court eventually sided with the company, first putting Lessig's job on hold and later ruling that Jackson overstepped his authority by delegating tasks to the professor. The appeals court never addressed the issue of bias, however.

© Copyright 1998 The Washington Post Company

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