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the use of directory service,” Boies said. The third and least experienced appellate judge on the panel, Clinton appointee Richard Paez, said little.

Russell Frackman had enjoyed Boies’s rough treatment, though he had been through enough proceedings to know it didn't foretell victory. He was feeling more pleased as he stepped to the lectern that Judge Schroeder was in charge: He had argued the flea-market case before her and won. Frackman was glad that for the first time in his career, he had brought his children to hear him argue. But he did little more than clear his throat and begin to praise Beezer for questioning the relevance of Sony when he too was interrupted. “Are you prepared to discuss the knowledge issue?” Beezer asked, thinking of the DMCA protection for Internet service providers that are merely unknowing conduits of information. “I find that extremely troublesome. . . . If this is a service, how are they expected to have knowledge of what comes off some kid's computer in Hackensack for transfer to Guam?” Frackman was prepared. “You start out talking about what they designed their system for. They designed it for piracy,” he said. One last time, he read Sean Parker's smoking-gun e-mail saying that anonymity was important since Napster users “are exchanging pirated music.” And moving quickly to take advantage of Schroeder's presence, he said, “This is no different than the swap meet.”

The advantage immediately proved smaller than Frackman had hoped. “This is different,” Schroeder told him. The flea-market operator could wander through at any time and learn that pirated goods were being sold on its premises. “Napster doesn't have any idea at any point in time,” she said. The judges kept firing questions at Frackman and Boies during their rebuttals. At the end, some observers thought the questioning was tougher on the music industry than on Boies. Perhaps the suave litigator had pulled another rabbit out of his hat.

Neither side expected to wait long for a decision. But the deliberations among the judges and their clerks wore on and on. The longer it lasted, the better Napster thought its chances were and the more nervous Frackman became. In the interim, Patel appointed a mediator to try to broker a settlement: The parties met only once, and the talks went nowhere. On February 12, 2001, four months after the oral arguments, the Ninth Circuit finally handed down its verdict. It was unanimous, with