Under Bill Gates' Skin

By John F. Dickerson

When he was appointed "special master" last December in the Justice Department's closely watched antitrust suit against Microsoft, Lawrence Lessig expected that by spring he'd be the most important person in the court--the expert telling Judge Thomas Penfield Jackson how to sort through the legal and technological issues underlying the complex case. Instead, he's the one being judged. A federal appeals court will decide this week whether he is, as Microsoft claims, too deeply biased against it to make an impartial recommendation.

It's a bizarre twist in what is already one of the most tangled tales in the history of antitrust. Lessig, 36, a Harvard professor of law, is primarily a constitutional, rather than an antitrust, expert. Nevertheless, he is widely recognized as a leading thinker on how to adapt ancient legal principles to the new digital age. When the Supreme Court struck down the Communications Decency Act last year, Justice Sandra Day O'Connor repeatedly cited his article "Reading the Constitution in Cyberspace" in her separate opinion. He has written famously about the "tyranny of code," how seemingly insignificant details of software design can have far more impact than any law. "With respect to the architecture of cyberspace, and the worlds it allows," he once wrote, "we are God."

Metaphysical expressions come easily to the cerebral Lessig, who holds a master's degree in philosophy from Cambridge and often retreats for solo reading vacations to such places as Vietnam and Central America. Perhaps too easily. "Sold my soul and nothing happened" was how he chose to describe the trouble he was having installing Microsoft's Internet Explorer to a lawyer friend at Microsoft archenemy Netscape. The line was from a Jill Sobule song, a bit of pop-music whimsy from an opera fan who often wears stereo headphones while he works. It was a joke.

Not to Microsoft. See! its lawyers said, Lessig has already set his heart against our company. But Gates' gray suits were gunning for the professor even before they unearthed the smoking E-mail. They argued from the start that Judge Jackson had no right to give such power to an outside adviser, especially one they hadn't vetted. Jackson dismissed their complaints as "trivial" and "defamatory," but the appeals court found them more credible and in February ordered Lessig to stop working until the matter could be argued in court.

What has Goliath so worried? Some of Lessig's past writings could be interpreted to suggest he might have an interventionist bent. But those who know him say Lessig is not so easily pigeonholed. For example, Lessig lost a lot of friends in the computer community when he argued against their push to establish a software standard for filtering pornographic images. Such software, he argued, limits the speech of its users without their even knowing it--a result nearly as pernicious as direct government censorship. It was an interesting insight, and many legal scholars were looking forward to hearing what Lessig would have to say about Bill Gates. Now it's up to the appeals court to decide whether they'll get that chance.