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U.S. vs. Microsoft
(District Court Judge Thomas Penfield Jackson)
An Old Essay, 1998, Mr. Wolfstone discussed:
Microsoft's Challenge to Larry Lessig and David Boies
LARRY LESSIG, boy wonder at Harvard Law School,
may be causing some real consternation in the mind
of Bill Gates, boy wonder at Microsoft.
Since December 1997, Professor Lawrence Lessig has been the focal point of the litigation in U.S. v. Microsoft. Judge Thomas Penfield Jackson appointed Mr. Lessig to serve as Special Master in the case, and Microsoft objected almost immediately.
Now, as of February 12, 1998, David Boies, a computer illiterate attorney in New York, has been retained to prosecute the Justice Department's case against Mircrosoft.
Lessig is new at Harvard Law School. He made a lateral transfer from the University of Chicago Law School and is a graduate of Yale Law School. At Harvard, Mr. Lessig is teaching a seminar entitled "High Tech Entrepreneur" with Prof. Jonathan Zittrain (HLS '95). Lessig has written numerous scholarly articles and is currently working on a book exploring Internet regulation.
Appointed Special Master on December 11, 1997, Mr. Lessig is charged with the responsibility of "collecting facts" in the Microsoft antitrust litigation. To his credit, Lessig has not commented publicly on the case since his appointment. Significantly, the Special Master has the task of framing proposed "Findings of Facts and Conclusions of Law" in the case. Lessig is also facing a court-imposed deadline of May 31, 1998.
According to James V. Girmaldi, a Seattle journalist based in Washington, D.C., David Boies, the man hired by the government to take on Microsoft, does not know how to use a computer; does not know how to retrieve his own e-mail; and does not surf the web!
Having been involved in a federal court case in which a Special Master was serving in a similar capacity to Mr. Lessig, Gary Wolfstone observes: "The job of the Special Master looms large. He must devote enormous time and energy to hearing testimony and reviewing documents. However, his role and influence over the eventual outcome of the case is pivotal. The Special Master can preordain the outcome of the case."
Judge Jackson has ordered Microsoft to stop forcing computer makers to install its Internet browser on personal computers as a condition for buying Windows 95.
Microsoft has argued unsuccessfully that its browser, Internet Explorer, is an integrated part of Windows 95. Judge Jackson raises the troublesome issue of whether Microsoft has been violating a 1995 consent decree.
The story is now familiar that Judge Jackson announced in one his Microsoft judicial hearings that he had directed his law clerk to un-install Internet Explorer from the judge's computer, leaving a wholly functional Windows 95.
Microsoft's first gambit was a motion filed on December 25th arguing that the appointment of a Special Master was not necessary. Microsoft also said that it was not familiar with Larry Lessig and that his published articles indicated that he had already formed opinions that would bear on the case.
Then, increasing the voltage, Microsoft went public in early January with a claim of Lessig's bias. In a letter sent directly to Mr. Lessig (and simultaneously released to the press), Microsoft asked Lessig to disqualify himself and revealed an e-mail message sent by Mr. Lessig in June of 1997 to Peter Harter, an attorney for Netscape Communications. Apparently when he installed Internet Explorer on his Macintosh, Mr. Lessig found that his Netscape bookmarks were "screwed up."
Professor Lessig had also reportedly stated that when he installed Internet Explorer on his computer, he felt that he had "sold his soul."
When Microsoft formally "motioned" him to recuse himself, Mr. Lessig refused and rendered an opinion that he could decide issues in the case "impartially." The Justice Department has defended Lessig's decision to press ahead with his duties as Special Master. David Boies will become a familiar name and face in the hearings which Larry Lessig will soon be conducting.Reporter Girmaldi correctly states: "It would be a mistake to underestimate Boies. He is one the nation's top antitrust litigators, with a reputation for absorbing complex technological issues, and then analyzing them in the context of U.S. antitrust law and economics, and ultimately developing a keenly focused legal strategy bolstered by brilliant courtroom tactics." David Boies graduated from Yale Law School in 1966; lives with his wife in Armonk, New York (Westchester County); was a partner with Cravath, Swaine & Moore from 1966 until 1997; and is the founder of the New York City based firm, Boies & Schiller.
In the context of all these legal problems, Bill Gates (who founded and built a multibillion dollar empire) is surely thinking that he can "Walk the Walk" but can he survive a blizzard of legal briefs and "Talk the Talk." Time will tell!
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