Yet Boies sealed his client's future by relying on an arcane argument that couldn't quite pass the laugh test. He compared Napster's file-sharing service to a VCR, invoking a 1984 case, Sony Corporation v. Universal City Studios Inc., which OK'd the taping of copyrighted TV shows for personal use. The ruling maintained that a device cannot be outlawed if a preponderance of its uses is legitimate. The federal Court of Appeals for the Ninth Circuit could see through that whopper. A Napster executive, on the other hand, need simply flick on his computer to realize that the service's raison d'etre is the swiping of major-label property.
Courts tend to look unfavorably upon willful blindness of that magnitude.
This is one of the recording industry's favorite myths, a convenient oversimplification of digital technology. Napster's songs are downloaded as MP3 files, a format that drastically compresses the original's digital information. Laid out on paper, the binary code for an MP3 version of the latest Limp Bizkit cut would appear radically different from the binary code for the album version. He could have summoned a bevy of audiophiles to attest to the format's inferior quality, its tendency to dull the richness of bass and treble tones. At the very least, highlighting the physical differences would have helped Boies elucidate his fair-use argument.