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And when Napster did terminate users before Patel’s May ruling, it did so by changing their passwords, not blocking their computer IP addresses. An expert witness didn’t have much trouble erasing the traces of his past Napster account and creating a new one on the same computer. Napster’s claim that it couldn’t easily block infringers’ IP addresses didn’t carry much weight, since the company had managed to shut out the IP addresses of bots like those used by NetPD to search for songs mechanically.

Summary-judgment fights are always an uphill battle. The party trying to end the case on the spot must show that there’s no disputing its essential version of the facts, and that the law is on its side. But that was little consolation when Patel declined Napster’s request for summary judgment in its favor. More than just rejecting Napster’s argument, Patel had highlighted the ineffective copyright policy. And now the labels could conduct much deeper discovery of evidence through sworn interviews and demands for paper and electronic documents. New Napster CEO Hank Barry had no idea what the discovery process would turn out, having done less-than-exhaustive due diligence into the legal mess before investing. If he had done more, he might have paused in his rush to embrace the company. Among other things, he would have seen the e-mail discussions among Napster’s chat-room moderators, where the outwardly poised Shawn had shown himself to be less than innocent. After one of the volunteers wrote that “we might not want to actually say that we know” that users were breaking the law, another chimed in that at least some of the MP3s were legitimate. Shawn then urged the parties to “try to avoid discussions similar to this . . . you should all be very aware of what you say.” Sean Parker’s words were far worse, Barry would soon learn.

Napster was up against a team of serious lawyers who were relative novices in Internet law. In a way, it was fitting that both the record industry and its attack dogs belonged to another era. Russell Frackman, the fifty-five-year-old Los Angeles attorney leading the suit against Napster, had until then never used e-mail, learning only during the course of the case. Frackman didn’t even use a word-processing program, instead dictating his legal papers to a secretary, herself the last holdout from the days when shorthand was required of the firm’s assistants. Like many label bosses, Frackman retained the essence of a Brooklyn accent, which faded

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