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enable secured-format distribution as soon as it became available. The record industry filed its own brief in response, and amicus friend-of-the-court briefs rolled in on both sides from the ACLU, the Digital Media Association, the Motion Picture Association of America, and a troupe of eighteen copyright-law professors. Even federal officials weighed in, hurting Napster when they stated flatly that the Audio Home Recording Act, which permits private noncommercial copying, didn’t apply.

The climactic oral arguments came October 2 in the appeals court’s ornate hearing room in downtown San Francisco. Carter-appointed circuit judge Mary Schroeder, the most senior of the three judges, sat between the two men on the panel and said the lawyers for each party would get just twenty minutes to make what could be the defining arguments of their careers. As CNN transmitted the proceedings live, Boies approached the lectern and told the judges that the record industry was asking them to make a series of rulings unprecedented in the history of copyright law. For Napster to be found liable for contributory or vicarious infringement, he said, its users would have to be found liable for direct infringement. Yet the users were deriving no financial benefit from their actions, and Napster had no financial relationship with them.

Just minutes into Boies’s presentation, the judges began firing questions. Since Napster users were sharing music with millions of anonymous strangers, “you can’t characterize that as personal and private use,” like that allowed under the Sony VCR decision, Schroeder said. Boies shifted to the legitimate uses of Napster, which he said could be a minority but still “significant” enough to qualify the technology for protection under Sony. That protection “is particularly important in a changing technology,” Boies said, and more and more artists were permitting the use of their music on Napster. Judge Robert Beezer, a Reagan appointee, jumped into the fray with questions about how Napster worked. Napster’s computers might be devices with legitimate uses, he said, but the programming that linked users together was an ongoing service. That implied it didn’t qualify for protection of the sort accorded the VCR, which Beezer said was “clearly, from beginning to end, a device.” Boies tried dodging again, arguing that Napster’s directory should be protected as free speech. “The First Amendment has never been held to prohibit