Originally created 01/31/98

Microsoft appeals appointment of `special master'



WASHINGTON -- Microsoft Corp. continued its high-stakes legal battle with the government on Friday by challenging the legality of a court-appointed expert's role in the antitrust case.

"While we respect the court and we respect Professor Lessig, we are appealing this matter because Microsoft has a constitutional right to have this important case heard by a federal judge, not by a private citizen," Microsoft chief operating officer Robert Herbold said in a statement.

At issue is the decision by U.S. District Judge Thomas Penfield Jackson to name Harvard Law professor Lawrence Lessig as "special master" to review "complex issues of cybertechnology and contract interpretation" in the Microsoft antitrust case. Lessig is to deliver a report to the court by May 31.

The appointment came Dec. 11 as Jackson ordered Microsoft to temporarily separate its Internet Explorer program from Windows 95, the dominant personal computer operating system.

In a filing with the U.S. Circuit Court of Appeals for the District of Columbia, Microsoft said Jackson lacked the authority to have a private citizen -- Lessig -- oversee the central issues of the case.

"Professor Lessig should not be discharging the judicial power of the United States," Microsoft attorneys argued.

And the company repeated its concerns that Lessig might be biased against Microsoft due to his electronic mail messages with employees of rival Netscape Communications Corp.

Because of these issues, Microsoft said Lessig's appointment could delay outcome of the antitrust case, and such a delay would harm consumers and the software industry in general.

Microsoft's earlier effort to have Lessig removed resulted in a harsh rebuke by Jackson, who described the company's accusations against the law professor as "trivial" and "defamatory." Microsoft appealed Jackson's ruling.

Earlier this week, the Justice Department said Microsoft's appeal is without merit because the company hasn't shown that it was harmed by appointment of a special master.

Microsoft last week agreed to a partial settlement of the antitrust case, avoiding a contempt citation.

It agreed to let PC makers who install Windows to eliminate the Internet Explorer icon. That feature, which appears on the screen when the computer is turned on, gives users a short cut to launching the program.

Other, broader issues, however, remain unresolved.