DECLARATION OF SPECIAL MASTER
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 Communications 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 4,000 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 lawsuit. 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's 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.
Executed on January 14, 1998.