Reading this I have to wonder if this Professor even realizes he's advocating for the criminalization of File Trading...

In a major development in RIAA litigation, Prof. Charles Nesson of Harvard Law School is charging that the RIAA’s tactics are an abuse of federal process and that the law on which the litgation rests — the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 — is unconstitutional.

...

In the opposition to plantiff’s motion to dismiss counterclaim (PDF), Nesson charges that the federal law is essentially a criminal statute in that it seeks to punish violators with minimum statutory penalties far in excess of actual damages.

Before getting to my initial point, let me spell out why this doesn't make much sense.

A Criminal Proceeding constitutes more than just "the punishing of an individual" it also involves restitution to society.  Because a crime is something that is committed against society, not against another party. 

That's the very definition of a crime.

The logic Prof. Nesson is using says any law where government sets a restitution amount is automatically a crime.  This in turn would make ALL civil suits a crime.  Since Government actually controls the level of compensation in every civil suit (albeit through the courts which rule on civil cases and not usually congress). 

So really his argument couldn't make less sense.  In fact, it shows how flawed the argument is when even the example he uses (of excessive fines being imposed on speeders) doesn't hold water because again a speeding ticket is paid to the Government not to another party.

Now back to the criminalizing.

The irony in all this is that Prof. Nesson is actually advocating for the criminalization of file sharing.  He's saying the Digital Theft act makes file sharing a crime which is why the fines are excessive.  So, if the court rules in his favor, that would lower the fine amount but would make file traders into actual criminals.

Given Criminal Statutes represent a status change in one's citizenship I don't see that as a good thing.  A felon, for example, can't carry guns and in many states can't vote. The Digital Theft law currently represents no such change but under Prof. Nesson's scheme file traders who lost their case would actually have criminal records.

I'm not sure anyone (even the RIAA) wants that.