Yesterday’s Microsoft Corp versus Department of Justice (DoJ) update involved a spat between the two centered around the role of the court-appointed ‘special master’ Harvard professor Lawrence Lessig. Redmond has long objected to his involvement, believing him to be biased against the company and lacking the necessary experience. The entire case goes to the appeal court on April 21, at which time Microsoft will ask the appeal judge to throw out the entire case and barring that, at least the preliminary injunction issued against the company in December. That injunction forced Microsoft to offer a version of Windows 95 without Internet Explorer, in addition to the integrated version at the center of the antitrust investigation, which was launched last October for alleged violation of a 1995 consent decree (CI No 3,272). The appeal court has already temporarily suspended the work of Lessig, who was appointed by judge Thomas Jackson to provide technical advice, but recently a conservative judge thought to be sympathetic to the company stepped down voluntarily and was replaced by a more liberal Democrat judge who is likely to favor curbs on its corporate power. Microsoft said nobody should serve as special master as the court is qualified to make its own decision and specifically Lessig should not do the job because of his lack of litigation experience. The DoJ said that was ironic considering Redmond had contended in the past that this case was one in which poorly informed lawyers have no vocation, and anyway, the court has made it perfectly clear on previous occasions that it, not the special master will be making the final decision. Also, says the DoJ, the court has said the case represents an exceptional condition, because it presents complex issues of cybertechnology and contract interpretation that it is in the interest of justice to resolve as expeditiously as possible.
