Original URL: http://www.theregister.co.uk/1999/12/22/lessig_moves_reveal_ms_fears/

Lessig moves reveal MS fears over IE-Win98 tying

Or maybe it just doesn't think the court should have friends either...

By Graham Lea

Posted in Business, 22nd December 1999 09:57 GMT

MS on Trial Microsoft quietly filed a brief on 9 December asking Judge Jackson to fire Lawrence Lessig as an amicus curiae (friend of the court), following his invitation on 19 November. On Monday, the judge ordered that the objection be overruled. Close examination shows that Microsoft is evidently rattled by the Lessig re-appointment, despite being allowed to produce its own amicus curiae brief. The DoJ and the States are also allowed to nominate one amicus to act for them both. Microsoft did not post the text of its brief on its Web site until after it had become known that it had objected, and there appears to be a special reason for this. Its main argument cites an opinion in another case by Judge Posner, the mediator, in which an amicus did not satisfy three conditions specified. Judge Jackson said in his memorandum that Lessig's CV showed he was "uniquely qualified to offer advice on a subject few other academics in the country are sufficiently knowledgeable to address at all..." Moreover he had "no financial or professional interest in the outcome", and although he had been invited by the Court to address issues of his choice, "he has advised the court (as Microsoft has been informed) he will submit his views exclusively on the issue of technical tying". So there we have it: Judge Posner's Opinion in another case did not help, and Microsoft's concern is that it will take the fall for technological tying of Windows and IE. Judge Jackson observed that the sides held "starkly divergent views on what is and is not lawful business conduct on Microsoft's part, and both proclaim that they have the best interests of the public in mind. The Court suspects that there may be valid legal analyses to be made of its Findings of Fact which would comport fully with neither position likely to be taken by the parties, but which the Court itself might find more consistent with the public interest. It was in anticipation that Professor Lessig might offer just such an analysis that the Court extended the invitation to him..." Microsoft's second objection was to suggest: "There is reason for Microsoft to believe that Professor Lessig may not be an impartial 'friend of the court'... on grounds of bias", and to proceed to detail two concerns about his impartiality. "Red Hat, a competitor of Microsoft in developing and marketing operating system software, announced on November 2, 1999 that Professor Lessig had accepted appointment to the advisory board of the Red Hat Center for Open Source, a non-profit organisation dedicated to promoting open source products like Linux that compete directly with Microsoft products like Windows 98 and Windows NT. Advocates of the open source movement have historically been antagonistic to Microsoft and other commercial software vendors." Red Hat will no doubt be delighted to be recognised as a competitor of Microsoft, even though it can't make a profit at it. Lumping Red Hat and open source advocates in an opposing camp to "Microsoft and other commercial software vendors" is also not a sensible position to take when the Linux market has shown itself to be so commercial. Microsoft's second objection was that: "On a program recently broadcast on WBUR, a Boston radio station, and available on the Internet... Professor Lessig made various statements about Microsoft in the context of the Court's findings of fact that apparently reflect a bias against the company. Among other things, he asserted that Microsoft's supposed control of 'a huge segment of the basic architecture of cyberspace' constitutes a 'threat to innovation.' He also asserted that the Internet was born 'when the government stepped in and broke up AT&T' because AT&T could no longer decide which innovations in the field of telecommunications were good and bad, and he opined that this was 'the same issue' that 'the government and Judge Jackson is [sic] attempting to wrestle with in the Microsoft case'." The Web references cited by Microsoft did not work this morning, and have presumably been disabled for the time being. Judge Jackson's confident and chiding response was that "the Court itself perceives no such bias as evident from the examples of Professor Lessig's public utterances Microsoft has tendered, and... the Court is confident of its ability to assess Professor Lessig's submission critically without being affected by any occult bias of which he might be possessed." It was two years ago that Lessig was appointed by Judge Jackson to be a special master to help on technical issues in the contempt case. Microsoft asked, 13 days after the appointment, for Lessig to be dropped. Judge Jackson ruled in January last year that Microsoft's comments on Lessig were "defamatory, and the Court finds that they were not made in good faith. Had they been made in a more formal manner [meaning on oath, but Microsoft had carefully avoided this] they might have incurred sanctions." Microsoft appealed five days later, and seventeen days later the Court of Appeals stayed the appointment without ruling on any bias by Lessig. These actions tend to suggest the mediation is not going well enough for Microsoft to abandon any weaponry. It is therefore reasonable to suppose that Microsoft will go to the Court of Appeals over the issue early in the new year, but the public and industry climate has changed in the interim. It will be difficult for the appellate court to side with Microsoft again without calling in the national guard. ® Complete Register Trial coverage