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years, by obtaining permission before enabling the copying,” he said. “Napster doesn’t want to do that. It doesn’t want to have to engage in clearances. It doesn’t want to have to hire people to determine whether they need to get clearance and to seek permission. It’s too much effort. It requires them to work before they become Internet billionaires.”

Appearing for the first time before Patel, Boies pursued the same points laid out in his brief, starting with the language in the Supreme Court’s VCR ruling that allowed technology to come to market if it could have substantial noninfringing uses. Boies handed up his charts and case citations, cleared his throat, and got out three full sentences. The last of them was: “We have at tab No. 2 of the book that the court has, a reference to a whole series of substantial noninfringing uses of which Napster is capable. And as the court is aware—” Patel cut him off. “What does that mean, ‘is capable’?” she asked. “As opposed to ‘is in fact’ or ‘has in fact been performing’?” From that moment on, Boies was crippled. Unlike in the VCR case, there was a wealth of real data about how Napster was being used right then.

It didn’t get any better from there. Boies said that various courts had held service providers and others not responsible for the actions of their users. But Patel had been immersed in the early memos and e-mails from Parker and the others, and they were still staring up at her. “Isn’t that the guts of what Napster was all about?” she asked, interrupting Boies for the fifth time. “ ‘Pirating be damned,’ I think, was pretty much the sense one gets in reading some of the exhibits from some of these early meetings or memos, et cetera. I mean, piracy was uppermost in their mind, right? Free music for the people, right?” Boies had little left to say, except that the facts about present-day Napster and the law were more important than the previous writings of a clever nineteen-year-old. In everything Boies brought up, from the Audio Home Recording Act to the prior year’s decision allowing sales of the Rio MP3 player, Patel kept after him. The toughest jab may have come when Boies said that the VCR case permitted home copying that wasn’t commercial. “They weren’t sharing it with the world,” Patel interjected.

Boies’s sidekick from Pulgram’s firm, Daniel Johnson Jr., then tried to fit Napster into the remaining DMCA exemption, the one for objective search services. To be denied that exemption, he said, you “have to have