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Microsoft lawyer memo ‘leaked’

Intended for wider consumption, our Graham reckons

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Dave Heiner, a Microsoft lawyer, prepared a memo entitled "In case any of you care to hear 'our' side". This was distributed internally at Microsoft on 3 March, with an invitation to "forward it within your organization if you wish". It has been used by Microsoft PR for selectively briefings. The nod has no doubt been given for it to be leaked more widely, and a copy has fallen into our IN box. Heiner is best known in the trial for his interjections during the Gates' video deposition, when he was heard to cry "objection" repeatedly. The best-known previous leak of this kind was of a memo prepared by Gates in 1991 for senior Microsoft staff, which was faxed by Microsoft's PR firm Waggener Edstrom to anybody requesting it. Since we now know what Gates' memos are really like, there is now no doubt that Gates had a wider audience in mind when he wrote the memo, in view of his pompous phrasing. In the conclusion, Heiner claims that each side may present up to three more witnesses, but that is not exactly what Judge Jackson ordered: he was prepared to allow three for Microsoft because of the extensive Gates' deposition, but only two for the DoJ. Ominously, Heiner notes that the case "is likely to continue to progress through the courts (the use of the plural is particularly interesting) for quite some time". The clues that the memo was intended for wider consumption are clear enough: no senior Microsoft staff member receiving the memo would need to be told where Microsoft’s selection of trial documents are to be found on Microsoft’s website. Nor would it be normal practice to spell out what an ISP was. The memo should therefore be seen for what it is – an attempt to let readers think that they are privy to Microsoft’s internal legal thinking. In fact, it is an extremely biased propaganda piece. Heiner says in the memo (three times) that Microsoft won in the Court of Appeals by unanimous decisions: "In both cases, however, we won in court, and did so by unanimous decisions of the Court of Appeals. (Appeals are heard by panels of three judges.)." The truth is somewhat different. Judge Judith Wild dissented in the key part of the main issue -- the interpretation of the consent decree. In addition, in the appeal to have Professor Lessig’s appointment as a special master stayed, Judge Lawrence Silberman was one of the three judges. Yet he had to recuse himself very shortly afterwards because a trust fund over which he had control held Microsoft stock. He did not explain whether this had been the case when he made earlier pro-Microsoft pronouncements, such as against Judge Sporkin in 1995. With these provisos, we present the text to Register readers without further comment. Next page

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