Court Suspends Use Of Special Adviser On Microsoft

A U.S. appellate court on Monday suspended use of a Harvard University law professor as a special adviser in the Justice Departments case against Microsoft Corp , granting the companys motion. In a one-page ruling, the U.S. Court of Appeals for the District of Columbia circuit granted Microsofts Jan. 16 motion. This suspended the work of Lawrence Lessig as special master in the case, but the ruling explicitly said that its order should not impede further work on the case. Microsoft welcomed the ruling and said it looked forward to presenting its case in the appeals court and the trial court. Were pleased with this decision. We view this as a very positive step, but it's only one step in the whole process, Microsoft spokesman Tom Pilla told Reuters. We believe that this case is critical to consumers and the future health of the U.S. software industry.

 

The Justice Department had no immediate comment on the appellate court decision.

U.S. District Court Judge Thomas Penfield Jackson last year chose Lessig as a special adviser to collect evidence and take testimony on the Justice Department's charges that Microsoft used unfair and illegal means to compete with Netscape Communications Corp.

Jackson planned to use Lessig's advice to help decide if Microsoft has violated a 1995 consent decree as the Justice Department charges. That decree was supposed to help foster competition in the software industry.

Jackson last month rejected a motion by Microsoft to remove Lessig from the case, calling its charges against the Harvard professor "defamatory."

But Microsoft appealed his decision, and the U.S. appellate court on Monday agreed with the software giant after hearing arguments from the Justice Department and Microsoft on the matter last week. It gave no reason for its decision.

In its appeal, Microsoft raised allegations of impropriety, in part because it said Lessig had sent to an employee of Netscape an electronic mail message that "compares installing a Microsoft product on his computer to selling his 'soul.'"

It also said Judge Jackson improperly delegated his authority to collect evidence to a private citizen.

Microsoft wrote a long letter to Lessig asking that he recuse himself from the case. Judge Jackson denounced that letter as "defamatory."

The Justice Department last week told the appellate court that Microsoft's appeal lacked merit and that the company would not suffer permanent harm.

The two sides are schedule to present oral arguments before the appellate court on April 21, when the court will consider both the Lessig matter and another appeal Microsoft has brought.

Jackson is to decide by June whether the government is right when it says that Microsoft may not tie the sale of its Windows software to its Web browser, or whether the company is right when it says it may integrate the two products.