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LARRY LESSIG, boy wonder at Harvard Law School,
was causing some real consternation in the mind
of Bill Gates, boy wonder at Microsoft in 1997. Students of history will enjoy turning the clock backward three decadess to relive this delicate moment and court ruling.
Harvard Law School
In December 1997, Professor Lawrence Lessig became 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.
As of February 12, 1998, David Boies, a computer illiterate attorney in New York,was
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 was teaching a seminar
entitled "High Tech Entrepreneur" with Prof. Jonathan Zittrain (HLS '95). Lessig has written
numerous scholarly articles and was working on a book exploring Internet regulation.
Appointed Special Master on December 11, 1997, Mr. Lessig was 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) was surely thinking that he could "Walk the Walk" but can he survive a blizzard
of legal briefs and "Talk the Talk." Indeed, he has survived this delicate moment in judicial history.
Gary L. Wolfstone
SEATTLE TRIAL LAWYER, GARY L. WOLFSTONE
Seattle Trial Lawyer
A Patron of the Arts
Seattle-Resume-2022
Rx New
As of September 30, 2022
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