WASHINGTON - A court-appointed special adviser was leaning toward recommending a ruling against Microsoft Corp. in the government's antitrust case before he was temporarily removed from his post, documents made public on Monday showed.
"Microsoft must, for a given product, leave (computer makers) free," Harvard University law professor Lawrence Lessig wrote in an 11-page letter, saying computer makers should be able to offer products that compete with Microsoft's Internet Explorer browser even if they install its Windows 95 operating system.
Lessig's letter to Microsoft and the Justice Department gave his interpretation of a 1995 agreement between the federal government and the company that was designed to boost competition in the software market. The department sued Microsoft last year, alleging it violated the agreement.
Lessig's job, advising US District Court Judge Thomas Penfield Jackson, was to include hearings and fact-finding. But at Microsoft's request, a federal appeals court last month put Lessig's job on hold, at least until 21 April.
Microsoft expressed concern as early as 23 December that Lessig was biased against the company and that the use of a "special master" - Lessig's formal title in the case - was not permitted under the law.
The US Court of Appeals for the District of Columbia unsealed the documents Monday after a request by Reuters. Bloomberg News and The New York Times later each made their own requests.
Jackson issued a temporary ruling against Microsoft in December and planned a final ruling in June, based in large part on Lessig's recommendation.
Much of the argument turned on an ambiguous clause in the 1995 agreement, known as a consent decree, that said Microsoft could not tie the sale of products such as Windows 95 to the purchase of another product, such as its Web browser.
But the ambiguous clause also said Microsoft retained the right to integrate new functions into its software. The company says its Web browser is a new part of Windows 95 - and will be fully integrated into Windows 98, reportedly due out in late June.
Microsoft, whose operating systems are used on about 80 percent of all PCs, threatened to cut Compaq Computer's access to Windows 95 if the PC maker did not feature Microsoft's Internet Explorer also. Much to the chagrin of Netscape Communications and its Navigator browser, Compaq agreed.
Lessig said in his 19 January letter that under Microsoft's interpretation "the prescriptions of the (consent decree) would have been illusory."
"Under principles of contract interpretation, a reading that renders a clause illusory is not to be preferred," he wrote.
"The point was to give (computer makers) the power to modify the package, even though the package was integrated, any requirements of Microsoft notwithstanding," he wrote of the 1995 agreement.
During a court hearing, Justice Department and Microsoft officials had argued over which parts of computer code belonged to Internet Explorer and which parts were purely Windows 95.
But Lessig said the argument was beside the point.
"I confess not to see why, in the context we are considering, 'product' is tied to 'code' in this way," Lessig wrote. He said the question was about contracts and products, not about computer code.
After the April hearing, the appeals court will decide whether Lessig will continue on the case, while considering other questions raised on appeal.
