At issue is the Recording Industry Association of America (RIAA)'s use of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Nesson, the founder of Harvard's Berkman Center for Internet and Society, has filed a brief in Federal District Court in Boston claiming RIAA's prosecution of online music sharers is "an unconstitutional delegation by Congress of executive prosecutorial powers to private hands."
Nesson is defending Joel Tenenbaum, a Boston University graduate student who has been charged with illegally downloading songs from a file-sharing network.
Arguing that illegal file-sharing of music costs recording artists and related industry interests jobs and billions of dollars, the RIAA has used the 1999 legislation to take thousands of citizens to court. Most of those charged pay up rather than undergo the expense and time of defending themselves.
The situation, however, bothered U.S. District Court Judge Nancy Gertner, who noted that defendants were congesting her court.
"There is a huge imbalance in these cases," Gertner said, according to published reports. "The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals who don't have lawyers, who don't have access to lawyers, and who don't understand their rights."
Nesson, who represented Daniel Ellsberg of Watergate fame and who represented the plaintiffs against W.R. Grace (depicted in the book and film A Civil Action) was scheduled to meet in pretrial sessions this week before start of the trial, which is scheduled for early December.
Nesson has suggested there can be alternate ways of sharing music that would satisfy both sides -- produce income for recording interests and permit consumers to share music without threat of being sued.
The RIAA has sought and obtained some hefty awards against individuals it believes have violated the copyright law. According to some calculations, Tenenbaum could be liable for as much as a $1 million penalty if he is convicted of illegally downloading a few songs.
"What should be clear is that illegally downloading and distributing music comes with many risks and is not an anonymous activity," an RIAA spokesman said, according to The Associated Press.