📸 Photo

before the hearing began. Napster’s top leaders didn’t seem too worried about losing, especially right away. Fanning sent an e-mail saying that even if Patel ruled against the company eventually, the order would be stayed during an appeal. He estimated there was only a 10 percent chance the higher court would also rule against Napster. Barry sent a cheery all-hands message the day before that began with the word “Greetings!” and reminded the staff to avoid speaking to the press. “We are having the hearing tomorrow. Shawn and I will be attending for the company, and we’ll call you guys immediately after and let you know how it came out. There is a good possibility that nothing will happen,” Barry wrote. Statistically, he was making a good guess. Preliminary injunctions, especially those likely to be appealed by one side or the other, are rarely issued in open court, before the judge has had time to digest the paperwork and craft a written ruling solid enough to withstand further challenges.

The forty-seat courtroom was so mobbed with attorneys for the various parties that many had to watch on closed-circuit television next door. Barry and Shawn, who wore a blue blazer and tie, sat behind their lawyers in the stifling room. Record-industry attorney Frackman, confident that his brief had shown his side would probably win at trial, focused his oral argument on the other half of the test for an injunction: the likelihood of irreparable harm. And now, Napster’s soaring popularity was the strongest ammunition against it. “Since the court walked in several minutes ago,” Frackman began, “30, 40, maybe 50,000 recordings have been downloaded using the Napster system; 14,000 recordings are downloaded a minute . . . if we take the six months that Napster has posited it will take to get to trial, there will be 3.6 billion separate recordings downloaded using the Napster system. And 90 percent of those, Your Honor, are copyrighted.” By then, he said, Napster would have 75 million users, and no royalties would have gone to anyone. “The longer this goes on, Your Honor, the more impossible it will be for us, and we believe for the court, to do anything realistic.” In addition to hurting CD sales, he said, the industry’s efforts to get its own system of online distribution in place wouldn’t stand a chance. Music publishers’ attorney Carey Ramos offered a short rebuttal to Lessig’s argument against stifling new technology. “All we request is that Napster be required to comply with the law, to follow the same rules of the road that other media businesses have followed for