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David vs. Goliath, as Told By David

David.goliath Harvard Law Professor Charles Nesson's defense of alleged file-sharer Joel Tenenbaum against a lawsuit brought by the Recording Industry Association of America has been nothing if not controversial. This is the man, after all, who tape-recorded a telephone conference with the federal judge presiding over the case and posted it to his blog and who then posted a series of e-mails from experts explaining whey they believed his legal theories in the case to be flawed. As we noted in an earlier post, even some lawyers who are on his side of the aisle in the case consider his tactics to be crazy.

Nesson readily acknowledges this. "Academics and professionals have described my style as unconventional and have accused me of creating an unnecessary circus around this case," he writes in an op-ed published yesterday on the blog Ars Technica. "I have also raised more than a few eyebrows with my untraditional approaches in court and the openness on my blog and Twitter feed."

But this is a case of Davids vs. Goliath and, as such, it warrants risky tactics, he argues. Yes, that is Davids, plural, because Nesson believes that both he and his client are both underdogs, each in his own way. "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."

No one can disagree with Nesson when he says that this is not a fight in which the sides are evenly balanced.

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. ... 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.

So let others question his tactics, Nesson suggests. In a legal world in which Goliath has the upper hand, unconventional tactics are the only options for the Davids of that world. "After all," Nesson says, "David would never have beaten Goliath if he had not taken a chance with his slingshot."

Posted by Robert J. Ambrogi on May 26, 2009 at 02:10 PM | Permalink | Comments (0)

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