Microsoft appeals ruling that kept Lessig on as adviser

Microsoft Corp. last week appealed a ruling in the antitrust lawsuit it faces that allowed a court-appointed adviser to remain on the case despite Microsoft's claim that he is biased.

U.S. District Court Judge Thomas Jackson on Wednesday denied Microsoft's motion to have Harvard University professor Lawrence Lessig removed from the case, which was filed by the U.S. Department of Justice. The judge called Microsoft's accusations "trivial" and "defamatory."

In court papers filed in the U.S. Court of Appeals for the District of Columbia, Microsoft urged the court to overturn the lower court's ruling and remove Lessig from the case. Microsoft argued that Lessig was appointed "special master" without prior notice to or approval from the company, and that the case poses no "exceptional condition" to warrant the adviser.

Microsoft also argued that Lessig is biased based on an e-mail from July in which Lessig wrote to an employee of Netscape Communications Corp. that his Navigator browser bookmarks were in disorder after he "sold his soul" by installing Internet Explorer 3.0 on his Macintosh.

Microsoft has the right to have research and review in the case conducted by the court and not by a private citizen, the company said in its appeal.

A Justice Department spokeswoman said she could not comment.

Lessig, who refused Microsoft's direct request to step down, has already begun his work on the case. Jackson asked him to report back to the court by the end of May.

In October, the Justice Department asked Jackson to find Microsoft in contempt for violating a 1995 antitrust consent decree that bars the software maker from tying the licensing of one product to the licensing of another product. The Justice Department claims Microsoft violated that agreement by requiring PC manufacturers to preinstall the Internet Explorer browser as a condition for licensing Windows 95.

Jackson issued a preliminary injunction last month ordering Microsoft to stop the practice. Microsoft claims the browser is an integral piece of the operating system. The company also claimed it is complying with the order by offering a choice of an older version of Windows 95 or one that does not work properly without the browser code intact. The Justice Department says Microsoft is not in compliance with the preliminary injunction.