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Date: Tue, 6 Jan 1998 20:26:57 -0500
To: politech@vorlon.mit.edu
From: Declan McCullagh <declan@well.com>
Subject: FC: Microsoft's fax to Larry Lessig: Bill Gates as Satan?
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-Declan
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*************
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Date: Tue, 6 Jan 1998 18:32:38 -0500 (EST)
From: James Packard Love <love@cptech.org>
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This is the fax that Microsoft sent to Professor Lessig, asking that he
remove himself as special master. Microsoft complained about Lessig
earlier "equating Microsoft with the devil," among other things. The
email messages that MS refers to are displayed on the MS web page at
http://www.microsoft.com/corpinfo/doj/1-5email.gif
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Jamie
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---------------
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January 5, 1998
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BY FACSIMILE
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Professor Lawrence Lessig,
Harvard Law School,
Griswold Hall 502,
1525 Massachusetts Avenue,
Cambridge, Massachusetts 02138.
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Re: United States of America v. Microsoft Corporation
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Dear Professor Lessig:
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Microsoft is now in possession of the document referred to by the
government at the conclusion of our meeting in New York on December 30,
1997. (See 12/30/97 Tr. at 127-28.)
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The document appears to be a collection of three electronic mail
messages exchanged between you and employees of Netscape Communications
Corporation ("Netscape"), the third of which bears a date of July 29,
1997. The first of the three messages is one from you to Peter F.
Harter, whose title is Global Public Policy Counsel for Netscape and
whose responsibilities reportedly include spearheading Netscape^=D2s
government affairs campaign against Microsoft. In the message, you
complain to Mr. Harter about the Macintosh version of Microsoft Internet
Explorer 3.0. You begin by stating, "OK, now this is making me really
angry." You go on to state that you have discussed your complaint with
someone named "Charlie Nesson," and that he is of the view that the two
of you should "file a lawsuit," presumably against Microsoft. In the
message, you also compare installing a Microsoft product on your
computer to selling your "soul," apparently equating Microsoft with the
devil.
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In his responsive message, Mr. Harter advises you that he has passed
your complaint along to another Netscape employee, Eric Bradley, as well
as to Netscape^=D2s general counsel, Roberta Katz. Mr. Harter offers to
introduce you to Ms. Katz, whom he describes as a person "interested in
matters concerning" Microsoft Internet Explorer.
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In the third message, which you received a copy of, Mr. Bradley,
although acknowledging that he has never "actually installed [Microsoft
Internet Explorer] of any flavor on my Macintosh," proceeds to deliver
what can only be described as a diatribe against Microsoft, accusing the
company of a variety of anticompetitive practices. Mr. Bradley concludes
his message, which he himself labels as "ranting," by proclaiming, "I
really do hate that company [Microsoft]."
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As a special master appointed to discharge important judicial functions,
you are subject to all of the provisions of the Code of Judicial
Conduct, as well as to statutes governing the disqualification of
judges. See Jenkins v. Sterlacci, 849 F.2d 627, 631 (D.C. Cir. 1988).
Under 28 U.S.C. =A7 455(b)(1), a judicial officer is required to
disqualify himself "[w]here he has a personal bias or prejudice
concerning a party, or personal knowledge concerning disputed
evidentiary facts concerning the proceeding." In addition, a judicial
officer is required, under 28 U.S.C. =A7 455(a), to disqualify himself
when, as an objective matter, his "impartiality might reasonably be
questioned." See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 856-60 (1988); In re Barry, 946 F.2d 913, 916 (D.C. Cir. 1991)
(Edwards, J., dissenting). Under both of these provisions, it is clearly
improper for a judicial officer to proceed with a case if he has formed
an adverse opinion about a litigant based on information obtained from
an extrajudicial source^=D7such as your experience with Microsoft
technology on your Macintosh, your discussions with "Charlie Nesson" and
your communications with employees of Netscape. See Liteky v. United
States, 510 U.S. 540, 552-55 (1994).
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Needless to say, Microsoft regards the sentiments expressed by you and
your acquaintances at Netscape as exhibiting clear bias against
Microsoft, disqualifying you from any further participation in this
case. Netscape is a fierce rival of Microsoft in developing and
marketing Internet-related software; the mere fact that you would raise
a complaint about Microsoft with an acquaintance in the Netscape legal
department, expressing the views you did, indicates that you are^=D7or,
certainly, may reasonably be perceived to be^=D7a partisan of Netscape, and
thus that you cannot be seen to be impartial in this case.
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It is an aggravating factor that the subject of your complaint to
Netscape and the responses you received from Messrs. Harter and Bradley
are so closely related to the subject matter of this case. It would be
bad enough if you had voiced a complaint about Microsoft in general, but
you raised the possibility of bringing a lawsuit against Microsoft
presumably concerning the Macintosh version of Internet Explorer, a
counterpart to the very aspect of Windows 95 that is the subject of the
proceeding before you.
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Microsoft is also disturbed that you did not disclose these
communications with Netscape to Microsoft voluntarily, but rather
offered to explain them only after the government^=D7no doubt aware of
their implications^=D7stated that it had a copy of an electronic mail
message from you to Netscape. (See 12/30/97 Tr. at 127-28.) Nor did you
disclose at the outset of this proceeding that you have a relationship
with a senior lawyer at Netscape. Given that you have been less than
forthcoming about these matters, Microsoft is reasonably concerned about
what other communications may have occurred between you, Mr. Harter, Ms.
Katz or others at Netscape.
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In a similar vein, and exacerbating the already grave concerns Microsoft
has about your impartiality, Microsoft has learned that you were a
participant in a public forum at Harvard University entitled "Business
and the Internet: Strategy, Law and Policy." One of the coordinators of
that forum was Professor Charles Nesson of the Harvard Law School,
presumably the person referred to as "Charlie Nesson" in your electronic
mail message to Mr. Harter of Netscape as suggesting a lawsuit against
Microsoft. The seventh session of the forum, which took place on
February 24, 1997, had the provocative title "Should Microsoft Be
Allowed to Swallow the Net?" A principal topic of discussion at that
session was whether Microsoft had engaged in anticompetitive behavior by
including Internet Explorer in Windows 95, the precise issue now pending
before you. One of the two speakers at the session was Gary Reback of
Wilson, Sonsini, Goodrich & Rosati, Netscape^=D2s outside antitrust
counsel. You apparently were present at this session and asked Mr.
Reback questions about "what sort of a solution he would like to see
embodied in a decree against Microsoft"^=D7presumably a reference to a new
decree resulting from a hypothetical government enforcement action
against Microsoft. (See http://roscoe.law.harvard.edu/HyperNews/get/www/
courses/techseminar97/calendar/discussions/session7_discussion.html/7.html)
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As you are no doubt aware, summaries of views expressed by participants
at various sessions of the forum are archived on the Harvard Law
School^=D2s site on the World Wide Web. (See
http://www.law.harvard.edu/courses/tech97/calendar/sessions.)
Inexplicably, the summary relating to the session at which Microsoft^=D2s
inclusion of Internet Explorer in Windows 95 was discussed is no longer
available on the Internet. Such a summary plainly existed at one time
because it was assigned a Uniform Resource Locator
(www.fas.harvard.edu/~jbmarks/notes.html); the question is why it has
been removed and what it would have revealed.
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Microsoft requests that you promptly supply the parties with a copy of
the summary of the February 24, 1997 session, as well as any other
documents that reflect statements made by you on that occasion. In
addition, Microsoft requests that you provide the parties with any
documents reflecting any other communications you have had with Mr.
Harter or other employees of Netscape, as well as any communications you
have had with Mr. Reback or other lawyers representing Netscape. Lastly,
Microsoft requests that you provide the parties with all other documents
in your possession concerning Microsoft that might reasonably be seen as
bearing on your partiality.
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In light of the evidence that has now come to light demonstrating your
actual bias against Microsoft, it is difficult to see how you can in
good conscience preside over further proceedings in this matter.
Microsoft is justifiably concerned that you are not able to serve as an
impartial arbiter in any matter in which the company is involved.
Microsoft therefore requests that you disqualify yourself immediately.
If you are unwilling to do so, this matter should be referred to the
Court so that appropriate steps can be taken to safeguard Microsoft^=D2s
rights. Given that there is a conference call scheduled for 4:30 P.M.
Eastern Standard Time on Tuesday, January 6, 1998, Microsoft needs to
know as soon as possible how you intend to proceed.
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Respectfully submitted,
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Richard J. Urowsky
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cc: Hon. Thomas Penfield Jackson (w/ attachment)
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A. Douglas Melamed, Esq.
Phillip R. Malone, Esq.
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--
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
love@cptech.org | http://www.cptech.org
202.387.8030, fax 202.234.5176
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