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tice of the Supreme Court to leave to Congress the task of redrawing an appropriate balance.”

As the preliminary injunction hearing loomed, Napster CEO Hank Barry went on a public-relations and political offensive. He echoed Boies’s radical contention that swapping MP3 files was legal, and he testified in Congress on July 11, 2000. Appearing before the Senate Judiciary Committee, Barry reported that Napster had amassed nearly 20 million registered users in a single year of operation, a milestone that took America Online ten times as long to reach. He stressed that the users were acting out of the love of music, and that the biggest draw for them was the chance to sample music before buying it. Barry was surprised at how appreciative his audience was. But senators know how to count votes. Napster’s determination to grow no matter what—designed to keep its advantage over competitors, to prepare for potential ad revenue, and to entice the record industry—now had borne unexpected fruit. Napster’s users now could amount to a major political force, one that could lobby elected officials, vote them in or out of office, and participate in mass civil disobedience if they thought the law was wrong. “We should not brand as thieves the 20 million Americans that enjoy the Napster services,” Barry declared, striking an unaccustomed pose as a corporate lawyer and fledgling venture capitalist turned populist crusader.

Napster had been generating as many as ten thousand e-mails a day to Congress, and the record industry was on the defensive. But the RIAA’s Hilary Rosen was still optimistic. Among other reasons, in terms of star quality, Hank Barry was no Shawn Fanning. “The more vocal they became, the clearer it was that these guys were talking out of both sides of their mouth,” Rosen said. “They started talking about promoting artists, but they didn’t want the artists to get paid. Then they said they did want the artists to get paid, but they didn’t have the mechanism. Clearly it was about money, not consumer rights.”

Rosen’s inside information also suggested that the Napster camp wasn’t as confident as it used to be. She heard from an executive at AOL Time Warner, Jonathan Sacks, that Hummer Winblad was soliciting a