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Napster's hired gun

Attorney David Boies made his name during the Microsoft trial. Now Napster fans hope he'll be their savior to keep music downloads free.


Music fans hope attorney David Boies can keep downloads free

By Cecily Barnes
Staff Writer, CNET
February 20, 2001, 4:00 a.m. PT

He's not terribly handsome, he's certainly not the best-dressed man in the world, and while he has a strong record, his score is far from perfect.

So what is it about David Boies that makes him one of the most sought-after attorneys in the United States, again at center stage in the defense of Napster? The answer, friends and colleagues say, begins with a combination of disparate personal attributes rarely associated with high-powered lawyers of national repute.

There's the near-photographic memory, which allows him to argue the most complicated of cases without notes. There's the tireless work ethic, instilled in him as the son of two schoolteachers and the oldest of five children in Marengo, Ill.--a tiny city (approx 5,000 residents) lacking even its own movie theater some 70 miles outside Chicago. And, despite his celebrity and intellect, there's the courtroom manner that's surprisingly humble and straightforward.

But perhaps what makes Boies most attractive to his high-profile clients is his willingness to take risks, which often leads him to take on the most difficult cases without hesitation. Nowhere is that quality more appropriate than in the lawsuit against online music company Napster, considered one of the most important technology cases ever--and one in which victory might be a long shot for even the best of attorneys.

"His odds on the whole are not particularly good. It's a high-risk matter for him," said William Kovacic, a professor at George Washington University Law School who has followed Boies' career. "The legal framework he's dealing with and the facts he's having to deal with at the moment present some serious obstacles for him."

In other words, it's exactly the kind of challenge that Boies relishes.

Last week, three judges He showed he can handle ... from the 9th Circuit Court of Appeals dealt the online music-swapping company a huge blow, largely confirming a lower court's ruling that Napster should be prevented from letting people trade copyrighted music on its networks. The plaintiffs in the case, the five major record labels, declared the ruling a major victory.

That has done little to weaken the resolve of Boies, dubbed the "Michael Jordan" of law by the National Law Journal, in no small part for his all-star performances in tough situations.

While he may not look like a risk-taker--with his off-the-rack suits, Casio watch, unkempt hair and black tennis shoes often worn in the courtroom--those who know him can point to his strong character since boyhood, beginning with a battle with dyslexia that kept him from reading until the third grade. (Some attribute Boies' simple speaking style to this early impediment.)

At Northwestern University School of Law, before he transferred and graduated from Yale, Boies worked nights as a bookkeeper in a motel to help support his first wife and two young children, according to longtime friend James Fox Miller. Always the gambler, Boies later left the safety of a well-paid partnership at the well-established law firm Cravath, Swaine & Moore to launch his own practice.

Whether it was luck or talent, success followed him. In 1997, despite describing himself as a computer illiterate at the time, Boies was retained by the Justice Department in its historic antitrust case against Microsoft, albeit for far less than his usual fees. "You can't be a trial lawyer and not want to take on a trial like that," he once said in a published interview.

Not long afterward, Boies, who declined to comment for this article, elevated his public profile even further by leading Al Gore's legal quest for the White House--a crusade that many attorneys saw as doomed from the beginning. Here again, like all great masters of their craft, Boies was even more drawn to the case because of its daunting prospects.

"When you're a great lawyer, you get hired to do these impossible cases," said Steven Hetcher, professor of law at Vanderbilt University Law School.

Swimming with the big fish
Although most people know Boies for his recent cases, he has practiced law for more than 30 years and has handled other highly charged cases.

In the 1970s, he successfully defended IBM against a monopoly charge by the Justice Department. In the 1980s, he defended CBS News against a $120 million libel suit filed by Gen. William Westmoreland. But it was the Microsoft case that made David Boies a near-household name.

Napster's day in court His association with the government, large corporations and important issues may have provided additional incentive for his hiring by Napster, which may well be trying to change its image as a renegade start-up linked to massive copyright violation. Boies lends a sense of legitimacy to the company that few other attorneys could, without compromising an aggressive legal strategy.

"When Napster had its back to the wall, facing extinction, and they sat around in the room saying who can save us, they thought of him," Kovacic said.

Boies demonstrated a gambler's fearlessness with his now-famous deposition of Bill Gates. In the highly publicized videotaped session, Boies grilled one of the richest men in the world, confronting evasive responses and refusing to let up--a performance that cast him as something of a modern-day Robin Hood.

While this earned him praise from many attorneys and the public at large, some were outraged. Gates said publicly that Boies was "out to destroy Microsoft."

Others criticized him for making a "spectacle" out of the trial. "In my opinion Boies did not address the substantive matters but focused on the ridicule of Microsoft's chief executive," said Robert Levy, a senior fellow in constitutional studies at the Cato Institute. "I'm also talking about the press conferences after each courtroom hearing, pandering to the press, courtroom histrionics with the deposition to the exclusion of any serious issues."

But to those in need of a good lawyer, Boies' calm demeanor in the face of Gates' wrath only looked appealing. If Napster needed to subpoena the most fearsome Hollywood executive, for example, Boies would hardly shrink from the task.

"He showed he can handle cases where the stakes are enormous and the pressure is crushing," Kovacic said

Fawning praise from peers
In several interviews, not a single attorney offered a weakness in Boies' legal skills. He is so well respected that even his adversaries speak highly of him. Russell Frackman, who argued opposite Boies on the Napster case, remembers what many people have referred to as Boies' photographic memory.

"My memory is that he went up to When you're a great lawyer... the podium with nothing more than a pencil and I had an entire library in my arms, because that's the way that I do it," Frackman said. "I couldn't tell you any weaknesses. If you have any you want to share with me I'd be happy to use them."

Even judges have appeared smitten with Boies. Judge Thomas Penfield Jackson, who presided over the Microsoft case, was quoted in a recent New Yorker article saying that Boies was the best attorney that ever appeared in his courtroom. Others have made similarly glowing remarks.

One judge, who ran into Boies at a Manhattan restaurant, introduced the attorney to her friend as "a remarkable talent, the finest lawyer that's ever appeared before me in court," recalls Boies' friend Miller, who was with him at the time of the encounter.

Fred von Lohmann, a copyright attorney with the firm Morrison & Foerster, offers this explanation: "If you're an appellate court judge you wish every attorney that appeared before you was David Boies. He's reasonable, he wants to talk about the law, and he doesn't defend his clients' unreasonable positions."

That's good news for Boies, because he may well need to muster all his charms when he returns to the ring with Judge Marilyn Hall Patel, whose hard-line approach and original injunction against Napster set the tone for the case.

Media darling
Regardless of how he is received inside the courtroom, Boies is sure to draw on his skill with the news media outside the trial as well.

"Notice how often he gets interviewed, and when he steps outside of the courtroom, and notice how often he's got a nice message to offer people," Kovacic said. "He explains why a case makes sense in a way that people can understand, instead of in a lot of arcane legal mumbo-jumbo."

Boies first showed his media acumen during the Microsoft trial, when he would regularly brief reporters outside the courtroom and even join them for drinks after trial at the local pubs.

His media-friendly persona was further employed during Gore's bid for the presidency, when Boies was regularly interviewed on national TV and by print reporters--an invaluable asset to any political campaign obsessed with public opinion polls.

In the Napster case, Boies will once again bridge the very different worlds of Washington officialdom and the wilds of the Internet, this time by way of Hollywood. The one-time rogue Web site is thrusting itself into the political arena as it becomes known increasingly to mainstream America, urging the estimated 51 million people who use its file-swapping software to lobby their congressional representatives and form "advocacy chapters" nationwide.

Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, said he will call for congressional hearings. Lobbyists are turning up the heat for Congress to rewrite the Digital Millennium Copyright Act, a federal law that is central to the Napster lawsuit.

Both sides have enlisted Washington veterans to bolster their ranks. Napster has hired a former Hatch aide as its policy director, and the Recording Industry Association of America has recruited former GOP presidential candidate Bob Dole.

With players like these on all sides, and stakes piled high in both dollars and political capital, Boies is right in his element. And the long odds of winning probably make the contest even more appealing to the gambling side of the attorney, who is known to shoot craps in his spare time--placing multiple bets on the longest shots at the table.

If trial handicappers are to be believed, he may need all the luck he can get.