The anti-MS side could say "Mr. XXX uses MS products every day at work,
and at home... he has invested significant time and money towards
learning and purchasing MS software.... the fact that he/she hasn't
expressed negative opinions about MS, and continues to use the products
shows he/she is a 'MS supporter.' "
While the MS side can continue to argue the opposite.
> From: Joseph M. Reagle Jr.[SMTP:firstname.lastname@example.org]
> Sent: Wednesday, January 07, 1998 3:37 PM
> To: FoRK@xent.ics.uci.edu
> Subject: FC: Microsoft's fax to Larry Lessig: Bill Gates as
> Wow... pretty amazing. I had lunch with Larry last week, and he was
> cautious about talking about this subject (he wouldn't basically).
> Goes to
> show that anyone that ever posted to FoRK is not likely to be
> appointed a
> master expert. <smile>
> Forwarded Text ----
> Date: Tue, 6 Jan 1998 20:26:57 -0500
> To: email@example.com
> From: Declan McCullagh <firstname.lastname@example.org>
> Subject: FC: Microsoft's fax to Larry Lessig: Bill Gates as Satan?
> Important point: If you were subscribed to f-c-a, you are now
> subscribed to
> Date: Tue, 6 Jan 1998 18:32:38 -0500 (EST)
> From: James Packard Love <email@example.com>
> This is the fax that Microsoft sent to Professor Lessig, asking that
> remove himself as special master. Microsoft complained about Lessig
> earlier "equating Microsoft with the devil," among other things. =
> email messages that MS refers to are displayed on the MS web page at
> January 5, 1998
> BY FACSIMILE
> Professor Lawrence Lessig,
> Harvard Law School,
> Griswold Hall 502,
> 1525 Massachusetts Avenue,
> Cambridge, Massachusetts 02138.
> Re: United States of America v. Microsoft Corporation
> Dear Professor Lessig:
> Microsoft is now in possession of the document referred to by the
> government at the conclusion of our meeting in New York on December
> 1997. (See 12/30/97 Tr. at 127-28.)
> The document appears to be a collection of three electronic mail
> messages exchanged between you and employees of Netscape
> Corporation ("Netscape"), the third of which bears a date of July =
> 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
> Explorer 3.0. You begin by stating, "OK, now this is making me =
> angry." You go on to state that you have discussed your complaint
> someone named "Charlie Nesson," and that he is of the view that the
> 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
> In his responsive message, Mr. Harter advises you that he has passed
> your complaint along to another Netscape employee, Eric Bradley, as
> as to Netscape^=D2s general counsel, Roberta Katz. Mr. Harter offers =
> introduce you to Ms. Katz, whom he describes as a person "interested
> matters concerning" Microsoft Internet Explorer.
> In the third message, which you received a copy of, Mr. Bradley,
> although acknowledging that he has never "actually installed
> Internet Explorer] of any flavor on my Macintosh," proceeds to
> what can only be described as a diatribe against Microsoft, accusing
> company of a variety of anticompetitive practices. Mr. Bradley
> his message, which he himself labels as "ranting," by proclaiming, =
> really do hate that company [Microsoft]."
> As a special master appointed to discharge important judicial
> 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. =
> 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 =
> officer is required, under 28 U.S.C. =A7 455(a), to disqualify =
> when, as an objective matter, his "impartiality might reasonably be
> questioned." See Liljeberg v. Health Servs. Acquisition Corp., 486
> 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
> improper for a judicial officer to proceed with a case if he has
> an adverse opinion about a litigant based on information obtained
> an extrajudicial source^=D7such as your experience with Microsoft
> technology on your Macintosh, your discussions with "Charlie Nesson"
> your communications with employees of Netscape. See Liteky v. United
> States, 510 U.S. 540, 552-55 (1994).
> Needless to say, Microsoft regards the sentiments expressed by you
> 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
> a complaint about Microsoft with an acquaintance in the Netscape
> department, expressing the views you did, indicates that you =
> certainly, may reasonably be perceived to be^=D7a partisan of =
> thus that you cannot be seen to be impartial in this case.
> It is an aggravating factor that the subject of your complaint to
> Netscape and the responses you received from Messrs. Harter and
> are so closely related to the subject matter of this case. It would
> bad enough if you had voiced a complaint about Microsoft in general,
> 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
> proceeding before you.
> 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 =
> their implications^=D7stated that it had a copy of an electronic =
> message from you to Netscape. (See 12/30/97 Tr. at 127-28.) Nor did
> disclose at the outset of this proceeding that you have a
> with a senior lawyer at Netscape. Given that you have been less than
> forthcoming about these matters, Microsoft is reasonably concerned
> what other communications may have occurred between you, Mr. Harter,
> Katz or others at Netscape.
> In a similar vein, and exacerbating the already grave concerns
> has about your impartiality, Microsoft has learned that you were a
> participant in a public forum at Harvard University entitled
> and the Internet: Strategy, Law and Policy." One of the coordinators
> that forum was Professor Charles Nesson of the Harvard Law School,
> presumably the person referred to as "Charlie Nesson" in your
> mail message to Mr. Harter of Netscape as suggesting a lawsuit
> 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 =
> including Internet Explorer in Windows 95, the precise issue now
> before you. One of the two speakers at the session was Gary Reback =
> 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 =
> decree resulting from a hypothetical government enforcement action
> against Microsoft. (See
> As you are no doubt aware, summaries of views expressed by
> at various sessions of the forum are archived on the Harvard Law
> School^=D2s site on the World Wide Web. (See
> Inexplicably, the summary relating to the session at which
> inclusion of Internet Explorer in Windows 95 was discussed is no
> available on the Internet. Such a summary plainly existed at one =
> because it was assigned a Uniform Resource Locator
> (www.fas.harvard.edu/~jbmarks/notes.html); the question is why it =
> been removed and what it would have revealed.
> Microsoft requests that you promptly supply the parties with a copy
> 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
> have had with Mr. Reback or other lawyers representing Netscape.
> Microsoft requests that you provide the parties with all other
> in your possession concerning Microsoft that might reasonably be =
> bearing on your partiality.
> In light of the evidence that has now come to light demonstrating
> 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
> impartial arbiter in any matter in which the company is involved.
> Microsoft therefore requests that you disqualify yourself
> If you are unwilling to do so, this matter should be referred to the
> Court so that appropriate steps can be taken to safeguard
> rights. Given that there is a conference call scheduled for 4:30 =
> Eastern Standard Time on Tuesday, January 6, 1998, Microsoft needs =
> know as soon as possible how you intend to proceed.
> Respectfully submitted,
> Richard J. Urowsky
> cc: Hon. Thomas Penfield Jackson (w/ attachment)
> A. Douglas Melamed, Esq.
> Phillip R. Malone, Esq.
> James Love
> Consumer Project on Technology
> P.O. Box 19367, Washington, DC 20036
> firstname.lastname@example.org | http://www.cptech.org
> 202.387.8030, fax 202.234.5176
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> End Forwarded Text ----
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> Joseph Reagle E0 D5 B2 05 B6 12 DA 65 BE 4D E3 C1 6A 66 25 4E
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