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DMCA, Boies spent most of the time and pages allotted to him on two new tacks. The first and boldest argument was that Napster's users weren't doing anything wrong. Boies cited the Audio Home Recording Act, which established that noncommercial copying by consumers—in those days, making tapes from purchased record albums or other tapes—was legal. If Napster users weren't breaking the law, then Napster wasn't either. The second major argument harked back to another new technology that at the time had been attacked as ruinous by the entertainment industry—the VCR. Motion Picture Association of America president Jack Valenti said at the time that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone.” In a 1984 decision, by a vote of five to four, the U.S. Supreme Court had held that VCRs were legal because even though some consumers might use them to copy and sell videotapes of movies and television shows, the machines were “capable of substantial noninfringing uses.” Many viewers, the court held, would use VCRs just for “time-shifting,” taping shows to watch at another time. Later, the VCR provided an entire revenue stream for Hollywood as tape rentals soared.

Napster's dire straits also helped Boies and Barry recruit major Web intellectuals to the cause. Along with his opposition to the preliminary injunction, Boies filed statements by John Perry Barlow, Lawrence Lessig, and a handful of musicians, most of whom suggested that the record industry was more interested in maintaining absolute control of the means of distribution than it was in protecting the rights of artists. Barlow brought an unusual combination of credentials to the fight. He had been a lyricist for the Grateful Dead for more than twenty years and was affiliated with Harvard Law School. He was also the first to apply science-fiction writer William Gibson's term “cyberspace” to what was actually happening on the Internet. And in 1990, he had cofounded the Electronic Frontier Foundation, which was to the Net what the American Civil Liberties Union was to free speech in the physical world. The EFF had wrestled long and hard over whether it should give Napster significant legal help. In the end it opted not to, both because Napster already could afford some of the best legal minds available and because the facts were so weak that the suit might end up producing case law that hurt the