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most-searched-for term on the Internet by users of one engine that tracks such figures, ending a thirty-week run by "Pokemon." In a sign that Napster's understudies were ready in the wings, "Gnutella" jumped from beneath the cutoff for Lycos's Top 50 all the way to number seven.

Fortunately for Napster, the three-judge panel of the Ninth Circuit that was on duty to consider emergency motions included one Alex Kozinski. A Romanian immigrant who had turned fifty earlier that week, Kozinski had been appointed by President Reagan fifteen years earlier as one of the youngest appointees to the appeals court. A forceful intellect and even more forceful personality, Kozinski loved taking cutting-edge cases and was known for his aggressive interpretation of the First Amendment. He had ruled that abortion foes had the right to publicize the names of doctors who performed the operation, and he had held that a lawyer was free to criticize a judge. Kozinski was also an early fan of the Internet, having penned columns for Microsoft's online magazine Slate as far back as 1996. To many working at the court's offices in San Francisco when Napster's request for an emergency stay came in, the question was open-and-shut. Such emergency requests are almost always turned down with little fuss.

But Kozinski was excited about the prospect of a debate on the issues, which he argued were so important and so new that they merited a full airing. After some effort, Kozinski was able to convince one of the other two judges on duty, Barry Silverman, to vote with him to grant the stay. None of the parties in the case ever learned it, but Kozinski also tried to have the three-judge motions panel retain control of the case through the briefs and oral arguments, a step that would have kept him involved in the final ruling. The other judges didn't agree, and arguments were instead set for October, when Kozinski was unlikely to hear it.

As Napster's management spoke with Boies by conference call late on Friday afternoon about how to comply with the injunction, word came that the stay had been granted. Napster could remain online. The brief order said that the case raised "substantial questions of first impression," and noted that the appeals court would consider not just the merits but also the sweep of the injunction. In order to sway Silverman, Kozinski