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thorough search just to convince his unseen superiors that he was doing as much as he could. “He was going through the motions for his partners and the boards,” one candidate said. Presenting a bewildering array of potential CEOs and potential business approaches made it more likely that the board would throw up its hands and keep letting Barry do as saw fit. “Hank enjoyed the job. He enjoyed the profile,” the recruit said.

Inside Napster, more employees were beginning to chafe at Barry’s autocratic style. Barry had a serious temper, especially under pressure, and the edicts emanating from his BlackBerry rubbed the engineers the wrong way. “He was often extremely charismatic and focused,” one employee said. “Other days, he would just be negative and not reasonable.” Eddie Kessler, who initially enjoyed strong support from Barry, said that he was, in “some respects, a breath of fresh air.” But Barry’s topdown style included hiring executives without the input of the leadership team, which “was kind of unheard of in the Valley,” Kessler said. Shawn said Barry turned out as advertised—a solid lawyer. “He took care of the legal stuff very well. But I think the litigation was kind of a losing battle overall. Not because ultimately it went against us but because every time we expected it to go one way, it went the other. It was a roller coaster.”

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For whatever reason, Barry was still interim CEO, and there was still no deal with the record labels, when the U.S. Court of Appeals for the Ninth Circuit finally ruled on Patel’s preliminary injunction in February 2001.

In August 2000, Napster had filed its full appeal. It asked the threejudge panel to revisit nearly every holding by Patel, including those interpreting the VCR case, the DMCA safe harbors, and the Audio Home Recording Act. And the company argued that Patel’s injunction was overly broad and too harsh, in effect a form of prior restraint that would convert the network from a peer-to-peer system to “a centralized source of authorized material.” Hammering on the “substantial noninfringing use” argument from the VCR case, Boies said that seventeen thousand artists had authorized their work to be distributed, at least when it came to concert recordings—even Metallica. The major labels, meanwhile, released only twenty-six hundred albums a year. Boies said Napster would