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tle but pirated music, and that rampant infringement of the most commercially popular music in the world is the very foundation of its system," the lawyers wrote. Once more, the filing tarred Napster with the now-regretted exuberance of its youthful promotional copy, since replaced: "You'll never come up empty handed when searching for your favorite music . . . and you can forget about wading through page after page of unknown artists!" Even Napster's more recent "sanitizing of its Website" and its addition of boilerplate warnings about copyright misuse, the record industry said, were accompanied by winks and nudges about the anonymity of the service.

A preliminary injunction is nearly as hard to come by as a summary judgment. In order to win one before a trial, a party to a suit must show that it is likely to win at trial and that either it will suffer irreparable harm in the interim, or that it will suffer more without an injunction than the other side would with one. So the well-funded record-industry team now trotted out a raft of studies showing that it was already suffering serious losses. Compact-disc sales, while increasing nationwide, were falling among college students, one reported. And near campuses with higher-than-average Napster use, sales were declining even faster. The most damaging study was that by Ingram Olkin, a Stanford statistics professor. The industry hired Olkin to find out what proportion of Napster users was offering music illegally. Olkin picked 1,150 Napster subscribers who were offering files and downloaded all of their available MP3s. Any percentage above 50 would have presented a big problem for Napster, showing that the majority of its users were violating the law. Any figure above 90 would make it hard for the company to talk about any substantial noninfringing use. Olkin's study found 100 percent were offering pirated music—every single one of the 1,150 users in the survey. And while some probably had at least a few files that were authorized, a minimum of 87 percent of the songs weren't kosher.

If the facts were bad for Napster, the law wasn't much better. Judge Patel had already ruled that the biggest safe harbor in the DMCA didn't protect Napster, in part because its policy for banning users wasn't tough enough. The labels now made a strike against the smaller exemption, the one for indexing and search services that steered users to inappropriate