This article approaches the well-publicized Joel Tenenbaum copyright case through an analysis of its highly-charged trial rhetoric. In particular, it argues that the case as tried was not really about Joel Tenenbaum or his actions. Rather, the trial was about whether, and to what extent, peer-to-peer (“P2P”) file sharing is “theft,” and the P2P sharer a “thief.” So approached, the case provides a captivating, perhaps unique, academic case study on the power of theft rhetoric in a copyright trial as advanced before a jury.

It first introduces the Tenenbaum litigation generally, and its place in the recording companies’ broad attack on P2P file-sharing. Next, it shows how the rhetoric of theft pervaded the trial to such a degree that the file-sharing-as-theft metaphor itself became the central figure in the drama. By closing arguments, the parties were effectively asking the jury to decide not whether Tenenbaum was liable for copyright infringement, which was not even in dispute, but whether Tenenbaum’s infringement amounted to copyright theft. Then, working off of the framework for defining “theft” of intellectual property developed by Prof. Stuart Green in his recent theoretical treatise on theft law, 13 Ways to Steal a Bicycle, the article asks expressly the question implicit in the Tenenbaum case. Namely, did plaintiffs succeed in showing that Tenenbaum “stole” the copyright in the thirty songs at issue? It finds that while the plaintiffs shaped their arguments in such a way as to justify the conclusion that P2P file-sharers, working in the aggregate, could effectively steal a copyright, they failed to make such a case as against Tenenbaum individually.

The article then observes that whatever theoretical flaws there might be in the theft narrative and Tenenbaum outcome, the trial provides confirmation that the industry’s long campaign to promote the file-sharer-as-thief metaphor gained traction with the public. It at least primed the jury for the rhetoric advanced in the case. As between the two narratives on trial — theft and not-theft — the former best explains the jury’s verdict. Nevertheless, in the final analysis, the plaintiffs “won” little of value in the Tenenbaum case. It was ultimately a symbolic litigation that never should have happened in the first place.





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New England Law Review

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Paper Symposium: Thirteen Ways to Steal a Bicycle