And, having read his blog post that was referenced in the linked article, this sounds about right.

Strategy-to-win is step 1: get a jury trial going.

Step 2: build an argument that the notion of "fair use" is one of those constitutional notions that can be inferred from the constitution even when not mentioned explicitly (eg some notion of privacy being inferred from 4th amendment, etc.)

Step 3: argue that stuff like the "4 factors" test are not definitive but merely illustrative -- they serve to illustrate the considerations that one ought to consider when making a judgement of fair use, but do not define the notion of fair use, which is inferred directly from the constitution and thus precedes any later developments like "4 factors"

Step 4: argue that b/c "fair use" is an affirmative defense (meaning, a defense you can make when you're brought to trial, as opposed to an explicit grant of rights to the "fair user") the meaning of fair use is always and everywhere up to a specific jury in a specific case to decide. Remind jury of step 3 (that stuff like 4 factors is actually only illustrative and not definitive) and that at the end of the day whether or not the defendant is making "fair use" is entirely up to the jury and the jury's conscience.

Step 5: argue from conscience that there's no way the current set of file-sharing penalties are in any sense "fair", and again remind that it is ultimately the jury's responsibility to make a decision as to what is or is not "fair use" and thereby ensure fairness.

This is a better strategy than it sounds in summary, though it only stands a chance of working if Nesson's hopes for a hollywood-type free-ranging trial come about; the threat of such a thing may be all he needs to get this case to settle, which counts as a win for his client, even if it's a sub-optimal way to win for Nesson himself.

The argument for "illustrativeness" is genius if fully developed; it's basically an attempt to transform the restrictions on the grant of authority to Congress to institute copyright and patent laws ("to promote the progress of science and useful arts") from dead letters to the source of a notion of "fair use":

- on the one hand, if such-and-such a use is shown to promote the progress of science and useful arts then laws restricting such a use require scrutiny (to ensure the net effect of the restriction balances out to promotion of progress of science and useful arts)

- on the other hand, if a restriction on a particular use does nothing to promote science or useful arts, then it's perhaps consitutional

...and in this picture the "4 factor" test would just be a useful set of guidelines for determining when a law-as-written is unconstitutional as applied to a particular set of circumstances.

It's also clever for its effect on the judiciary: Nesson's hardest targets there will hail from the right-wing, who typically lean towards strict constructionism (supposedly, only considering the raw language of some law) or an originalist (supposedly only considering the original intent of the writers of some law). However, it'd be difficult for either of those two schools to straightfacedly argue that the constitutional language about the "progress of science and useful arts" is just decorative fluff -- it'd put them in the position of having to argue that "yes, that language does mean something, we just disagree about what", which is in-and-of-itself a huge win.

And, secondly, if he can get this to a jury all he has to do is get done with steps 2 and 3 and then he's converted the trial from a nitpicky study of specific statutes to a general debate on "fairness", and then he's on much stronger ground.

He could, from there, abstract from the specifics of the case at hand to arguing that from the position of someone who isn't that familiar with the law -- eg, a 10 y/o -- it literally would make no sense for copying a cd for a friend or downloading something from the internet to carry fines in the 6 figure range, using argumentation along the following:

- tv ads for isps are always emphasizing download speeds for downloading music and movies etc. and sending files, etc.

- tv ads for computers always talk about how easy it is to send files or burn cds and dvds, etc.

- blank cds and dvds are available at supermarkets and 7-11 and all that

- stuff like ipods or cellphones with music capacity are source-agnostic; even with the itunes store it doesn't stop you from loading mp3s from elsewhere

- youtube, etc is full of music videos and so on, often with hundreds of thousands of views and not uploaded by anyone "official"

- tv and radio and internet radio stream free content over the air and it's legal to record it

- school projects often involve xeroxing stuff and making collages and so on

- there's libraries (run by the government) that loan stuff out for free, it's fine to let friends borrow stuff, and if you're going to loan to friends it's more convenient to just burn a copy than actually loan the disc

...but then wtf? I downloaded some tunes and now my parents are being sued for $150k+?

It's not an airtight argument, but on grounds of pure fairness it's not unconvincing.

I doubt Nesson'll get his day in court to argue this line of reasoning -- and if he does it'll probably be shut down earlier rather than later -- but the apparent strategy (once fleshed-out) is an inspired mix both of legal interpretation and lawyerly strategy.