Judge Denies Microsoft Bid to Oust His Computer Advisor
In a significant defeat for Microsoft Corp., U.S. District Judge Thomas Penfield Jackson denied a motion by the software company to dismiss his special advisor on computer issues.
Jackson wrote that the reasons Microsoft gave for trying to remove Harvard law professor Lawrence Lessig were “both trivial and altogether probative.”
“They are therefore defamatory, and the court finds that they were not made in good faith,” Jackson wrote. “Had they been made in a more formal manner, they might well have incurred sanctions.”
Microsoft had asked that Lessig be disqualified on the grounds that he had exchanged e-mail with Microsoft rival Netscape Communications Corp., indicating bias. In one such e-mail, Lessig compared installing Microsoft products on his computer to selling his “soul.”
The action came on the same day as an often-heated contempt hearing during which Jackson sharply questioned a Microsoft executive’s assertion that it was “absolutely clear” that an order issued by the judge required the software giant to offer a nonfunctioning version of its Windows 95 operating system to computer makers.
The hearing, in its second day, focused on charges that Microsoft defied an order by Jackson that it provide to manufacturers an optional version of Windows 95 without the company’s Internet Explorer browser.
Microsoft Vice President David Cole testified that he and other company officials, including Chairman Bill Gates, held several meetings in the days after Jackson’s Dec. 11 order to develop their response.
The following week, Microsoft sent a letter offering computer makers the option of removing more than 220 files of Internet-related code from Windows 95, which company executives knew would “break” the operating system and disable the computer.
Cole said Microsoft did not return to Jackson for clarification because they believed the language of the order was “absolutely clear.”
“It seemed absolutely clear to you that I entered an order that required that you distribute a product that would not work?” Jackson asked. “That’s what you’re telling me?”
“In plain English, yes,” Cole responded. “We followed that order. It wasn’t my place to consider the consequences of that.”
Shortly after the exchange, Jackson adjourned the hearing, asking lawyers for both sides to file briefs by Monday outlining facts in the contempt case. The hearing will continue with closing arguments Jan. 22, after which Jackson will rule.
Microsoft, which contends Windows 95 and Internet Explorer are a single product, has appealed the preliminary injunction but in the meantime must defend itself against the contempt charge. A federal appeals court Wednesday set oral arguments in the case for April 21.
The Justice Department contends Microsoft’s inclusion of the browser in its Windows 95 operating system, which is loaded onto about 90% of all new personal computers, gives it an unfair advantage over rivals, such as Netscape, and violates its 1995 agreement settling federal antitrust charges.
Microsoft shares fell $1 to close at $131.13 on Nasdaq.
