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and expressed little enthusiasm about the asset sale: They would get nothing from the deal, and they questioned Hilbers’s loyalty. But they allowed Hilbers and Napster general counsel Jonathan Schwartz to keep trying, and the pair presented a finished deal document for the board to vote up or down on Friday, May 10, with the expiration on the offer three days away. Barry and Hummer hemmed and hawed, objecting that they wanted to see how Fanning’s legal case played out and that they wanted to reserve Napster’s right to sue BMG, along with the other record labels, on antitrust grounds.

As it became increasingly clear that the board would not meet to vote on the offer before it expired, Schwartz wrote a long e-mail on Saturday to Barry, Hummer, and Hilbers, warning them that they were coming close to breaching their fiduciary duty to get as much as possible for Napster’s creditors. “Given that the company is faced with the most severe financial constraints imaginable, I do not believe that, consistent with its fiduciary duties, the board can simply reject the asset purchase agreement—either by affirmatively deciding to reject it or by not acting on it by the Monday expiration date,” Schwartz wrote. “The company is insolvent.”

Barry and Hummer responded that they would stick with their plan—no action by Monday, then a meeting of shareholders and creditors to discuss it later in the week. “Let’s move forward with that process as the board directed,” Barry wrote. And they didn’t respond to Schwartz’s increasingly desperate pleas that they spell out any remaining demands for him to take to Bertelsmann. Hilbers then weighed in, backing Napster’s top lawyer and threatening to resign. “This is not a game,” he wrote to the Hummer Winblad directors. “I am not going to abandon this buyout deal for no obvious reason and then move forward with layoffs and a road towards Chapter 7.” For good measure, Napster’s outside bankruptcy lawyer, Rick Cieri, the head of that practice at big firm Jones, Day, Reavis & Pogue, e-mailed an echo of Schwartz’s warning about fiduciary duty.

The escalating disillusionment with Napster’s leadership, which began among millions of fans who realized the game was all about money, then spread to once-supportive musicians and even to early Napster employees, was now complete. The company couldn’t even keep its own CEO and general counsel on the reservation. But Barry and Hum-