IP: Affidavit of special master Lawrence Lessig

[Dave Farber <farber () cis upenn edu>]

To: farber () cis upenn edu
From: telstar () wired com ((--Todd Lappin-->))
Subject: Affidavit of special master Lawrence Lessig






Dave,


As reported this weekend, Microsoft has appealed Judge Thomas Penfield
Jackson's decision to retain Lawrence Lessig as "special master" in the
Microsoft antitrust case.


Last week, Lessig filed an affidavit about the ongoing bias controversy
with the court.


Lessig writes, "Microsoft has offered readings of my writings, and
speculations about my behavior, predating my appointment in this case, that
it believes suggest bias. In context, they do not."


Dated January 14, 1998, the full text of the affidavit is enclosed below.


Best,


--Todd Lappin-->
Associate Editor
WIRED Magazine
telstar () wired com


=================================




DECLARATION OF SPECIAL MASTER
LAWRENCE LESSIG


        1. By Order dated December 11, 1997, I was appointed as a Special
Master in this proceeding by the United States District Court for the
District of Columbia.  I submit this Declaration in connection with
Microsoft Corporation's Motion to Revoke the District Court's Reference to
the Special Master.  Microsoft has offered readings of my writings, and
speculations about my behavior, predating my appointment in this case, that
it believes suggest bias. In context, they do not.


        2. Microsoft alleges an email that I sent to Mr. Peter Harter at
Netscape Corporation evinces "actual bias" against Microsoft.  It claims
the email "compares installing a Microsoft product ... to selling [my]
soul, presumably equating Microsoft with the devil." Reply Mem. at 13.  It
also states that the email "refers to a discussion with a Harvard Law
School colleague about the possibility of filing a lawsuit against
Microsoft."  Id.  These characterizations are misleading.


        3. The email in question is one of at least 4000 emails that I have
sent to various people over the course of the last 11 months, many to
friends, and most written with the informality of a telephone call.  To the
best of my knowledge, it is the only message that I sent to Peter Harter,
and it is the only email I sent to an employee at Netscape. (I do not
believe I have ever had any written exchange with a lawyer representing
Netscape.) The relevant portion of the email states as follows:


"Ok, now this is making me really angry, and Charlie Nesson thinks we
should file a law suit.  But please tell me whether this is true.  When I
installed Internet Explore 3.0 on my Mac system (only because I wanted to
be entered into the contest to win a 3400) ("sold my soul, and nothing
happened"), the next time I went into Netscape, all my bookmarks were
screwed up.  Did IE do this?"




        4. The purpose in my sending the email was to ask a question:
Whether Netscape knew whether IE interfered with Netscape bookmarks when
installed on a Macintosh. I asked it of a friend who I thought was in a
good position to know. The message does refer to Charles Nesson's view
about how to proceed, assuming IE did interfere with Netscape. But that was
his view. My aim was to ask. Subsequent to this email, both because


Netscape did not claim that IE interfered with Netscape, and because I was
later able to install IE on a research assistant's computer without
trouble, I concluded that IE did not interfere with Netscape bookmarks.


        5. Microsoft alleges I was not forthcoming by not revealing this
exchange at the start of our proceeding. But again, my conclusion from the
exchange was that there was no improper interaction between IE and
Netscape. As this proceeding has nothing to do with any potential
interaction between the two products, the exchange with Netscape was not,
in my view, relevant to this case.


        6. The email also contained two parenthetical references (quoted
above), the second of which Microsoft interprets as revealing bias against
Microsoft. Microsoft simply misses the reference.  The email was sent to a
friend at Netscape who I expected would tease me for installing a
competitor's browser. The first parenthetical therefore explained my motive
(to enter a Microsoft contest to win a Macintosh PowerBook). The second
simply continued the tease. The statement in that parenthetical is in
quotes. The words are from the lyrics of a song by Jill Sobule titled "Sold
My Soul." Its meaning in context was not the confession of some profound
"Faustian bargain." It was instead a facetious response to an anticipated
tease in an email between friends.


        7. Microsoft also asserts that I was a "participant in a public
forum at Harvard University entitled 'Business and the Internet'" in
February, 1997.  In fact, this was a course offered jointly among the
Kennedy School, the Business School, and the Law School.  I did attend at
least three sessions of that course. At one session, I made a presentation
about the Communications Decency Act; in the others, I attended as a
student.


        8. The seventh class in the course consisted of a debate between
Richard Rule, the former head of the Antitrust Division of the Department
of Justice, and Gary Reback. Rule was defending the market position of
Microsoft, and Reback was attacking it.  While I do not remember fully the
scope of the exchange, I do remember that I did engage Mr. Reback quite
forcefully, and skeptically.  I did this not because I had come to a view
about the matter being discussed, but because, as an academic, asking
questions is my job.  At the time, Mr. Reback did not know who I was; he
was not pleased by the thrust of my comments; in the end, after being told
that I was a "lawyer from Yale," he dismissed my comments, saying "at Yale
they don't teach any cases."


        9. Microsoft's Reply Memorandum refers to a student note available
on the Web in which I "reportedly asked Mr. Reback questions about 'what
sort of a solution he would like to see embodied in a decree against
Microsoft.'"  Reply Mem. at 13.  This misstates what the note says.
[footnote:I attach a copy of the note to this affidavit. (Attachment A).
While the URL that Microsoft supplies is correct, it is not an address
accessible outside the Harvard Network. I am uncertain as to how Microsoft
got access to this non-public document, but I supply it here so that the


Court may consider Microsoft's quote in context.] The note attributes the
question either to me or another participant; it does not say which. I do
not recall asking Mr. Reback this question, and don't believe I did.  If I
did, however, I did so in the same skeptical tone that I addressed the rest
of his presentation.


        10. Finally, Microsoft observes that a student's summary relating
to this class, and originally posted on the Web, "has been removed
inexplicably."  Reply Mem. at 14.  The implication is that I participated
in this "removal."  This is incorrect.  As the URL will reveal, the
location of the posting was on a machine managed by the University's
Faculty of Arts and Sciences.  I certainly have no power to remove a
posting from an undergraduate student's web page managed by the Faculty of
Arts and Sciences.  Moreover, it is also plain from the URL that this web
page was a private page of a former student -- Mr. J.B. Marks.  I do not
believe I have ever met Mr. Marks, but I have learned that he graduated
from Harvard last year.  I assume that the college has a policy of removing
the web pages of students when they graduate, and that that explains its
removal.  In any event, I can say categorically that I took no steps to
hide any statements I made, or that were attributed to me, from that class,
or any other class.


        11. Following Microsoft's letter of January 5, I did inquire of a
student who designed much of the class web page, to ask whether he had a
copy of Marks' notes.  He did not, but he did have his own notes from that
day.  I have attached the part of those notes relating to the statement I
made, in accord with Microsoft's request that I produce "other documents
that reflect statements made by me" on that occasion. (Attachment B).  This
is the only such document in my possession.


        12. In its original motion to revoke the reference, Microsoft
raises other issues that it says might raise doubts about my impartiality.
In particular, it points to two passages in my writing that refer to
Microsoft, and to a theme in my writing about the significance of "code."
I do not believe that either passage evinces bias against the corporation,
or a judgment about the merits of this case.


        13. The theme relating to "code" is, I should think, quite
uncontroversial, and certainly not original to me.  Its only claim is that
there are social policy implications that flow from the design of a
network.  Windows 98, for example, is said to have a "System Policy Editor"
to help set access rights on a network. It is in the same sense that I mean
to say that "code" generically is "political." In saying that, I am saying
what many others have said before.


        14. The two specific references to Microsoft contained within
articles that I have published have been taken out of context in
Microsoft's Motion.  In one, I state "as it is, the architecture is the
product of private interests -- whether the relatively open Internet
Engineering Task Force or the absolutely closed Microsoft Corporation."
Contrary to Microsoft's representation, this reference was not intended to


suggest that Microsoft "is a threat to political freedom."  Motion to
Revoke, at 8.  My claim was meant equally to refer to open organizations as
well as closed. In the second reference, in a footnote, I write that
Windows 3.1 was (in January, 1995) the "operating system of the more recent
(and futile) efforts of Microsoft to mimic the Apple Macintosh."  The aim
of this footnote was to explain the meaning of an operating system. Its
evoking of a then-present rivalry was meant, and I believe was understood,
to be playful, not damning. In any case, its reference has no relevance to
the issues presented by this case.


        15. I have reviewed the papers filed by the parties in connection
with Microsoft's Motion, and considered whether my past correspondence, my
professional writings or my participation in courses and seminars have the
potential reasonably to engender questions about my ability to perform my
duties fairly and impartially. They do not. I do not have any personal bias
or prejudice concerning either of the parties to this case, and no personal
knowledge of disputed evidentiary facts concerning the proceeding. Neither
do I believe that one who considered the facts in context could reasonably
question my impartiality.




        I declare under penalty of perjury that the foregoing is true and
correct.




                                                __________________________
                                                Lawrence Lessig




        Executed on January 14, 1998.