Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and co-Founder of the Berkman Center for Internet & Society. Together with a group of his students, he is defending Joel Tenenbaum, accused in federal court of sharing seven songs some years ago through KaZaA. Due to the intense public interest surrounding the case, we have offered Professor Nesson the chance to lay out what's at stake in his own words. His views do not necessarily reflect those of Ars Technica.

Earlier this month my students stood in the rain for nearly seven hours in the heart of Harvard Square, raising money for and awareness of a lawsuit that has captured international attention.

My client is Joel Tenenbaum, a 25-year old physics graduate student at Boston University, and he's being sued by the music companies for sharing seven songs back in 2003 using KaZaA, a file-sharing network comprised of millions of his peers doing likewise. The case has probably spent more time being discussed among the public than it has spent before judges. And, quite frankly, that is the point.

The Recording Industry Association of America (RIAA), which directs these lawsuits, will seek to prove that Joel downloaded those songs willfully and must therefore pay up to $1,050,000 to the record labels.

Joel has already been interrogated for nine hours straight in a forced deposition; has been made to endure the depositions of his mother, father, sister, and friends; and will be compelled to submit his current computer and his privacy to an "expert" of the RIAA's choosing so they can make a mirror image of the hard drive for forensic analysis.

All this for seven songs?

I believe that the RIAA litigation campaign against Joel and the millions of his generation like him is an unconstitutional abuse of law. Imagine a law which, in the name of deterrence, provides for a $750 fine [the lower threshold for statutory damages] for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew she was speeding.

Raising awareness

Credit: D. Yvette Wohn

Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put into the hands of a private, self-interested police force that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs on the order of $3,000 to $7,000 in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that almost every single one of these fines goes uncontested, regardless of whether they have merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in a federal courtroom.

The intersection between technological norms and law that governs social norms is one of the most academically interesting and practically frustrating issues professionals have grappled with in a long time. Tenenbaum is representative of his born-digital generation in every way. A problematic tension remains between our antiquated copyright laws and the social reality of "digital natives," a term my colleagues John Palfrey and Urs Glasser coined to describe the generation that grew up immersed in digital technologies and for whom a life fully integrated with digital devices that are by design free and open is the norm.

Surely, just because the laws of copyright have not yet fully acknowledged and addressed the ubiquity by which protected information is readily—and freely—available on the Internet, does not make good law moot. But this case illustrates a civil sea change rooted in the transformative nature of technology, of code as law.

Joel's case is indicative of a far greater trend. Better understanding of how today's generations interact with digital media will help us shape our regulatory and educational frameworks in a way that advances the public interest and better promotes "the Progress of Science and useful Arts."

Goliath always wins

Joel, who was a teenager at the time of the alleged file-sharing, is like the 35,000 other individuals who have been sued and cannot afford an attorney to defend themselves. Justice demands, however, that one man not be pilloried without the process due him as a civil right, without good counsel, and without the most rigorous proof that he has committed the wrongs alleged.

The situation speaks to one basic failing of the US legal system: it treats the plaintiff and the defendant as though they are equally powerful entities, regardless of the actual resources each may have. It disregards the fact that the cost of preparing a legal defense for a trial is prohibitively high—unthinkable for any entity other than a wealthy individual or a good-sized corporation. In most of the cases the RIAA has filed, the matter is resolved by the powerful organization threatening to press the suit into court unless individuals agree to their terms unconditionally. The powerful crush the weak. Goliath defeats David every time. This is not the justice for which I live and fight.

Many have argued that if we want to challenge the status quo, changing the law is better pursued via the legislature, not the courts. So why do we choose to fight in court when we could potentially affect policy in other ways? The answer is simple. We did not choose the courts as a venue; the RIAA did when it waged its massive litigation campaign. In that decision, I believe it also chose to abuse our legal process by using courtrooms and judges as small claims courts. Surely the Congress never imagined it would authorize a litigation campaign against pro se noncommercial defendants. In short, Joel is merely fighting back.

Charles Nesson

Academics and professionals have described my style as unconventional and have accused me of creating an unnecessary circus around this case. But just as Joel is David in his battle against the recording industry's Goliath, so too am I, in the fight against traditional legal norms. Hordes of professors and professionals vehemently disagree with the position I take when it comes to "fair use" in copyright law. I have also raised more than a few eyebrows with my untraditional approaches in court and the openness on my blog and Twitter feed.

Justice demands that those who are treated unfairly take a public stand. After all, David would never have beaten Goliath if he had not taken a chance with his slingshot while all Israel looked on.

By the end of the day, my students raised $156 dollars, which is not even enough money for us to purchase the depositions we need to adequately defend our client in court. But that day—and every day we fight—my students educate hundreds of individuals about the fundamental unfairness that underlies Joel's case. If I can teach my students to educate others about justice and fairness, then we are on the path to winning a much bigger battle.