When the music labels unearth a file-sharer to prosecute, they apply the thumbscrews gently at first. The accused infringer receives a letter asking him or her to settle, usually for $3,000 to $4,000. That's a lot, but those who don't settle face much worse.

Now, exposing oneself to certain kinds of new music might actually be worth that outrageous fee, but the people that the RIAA fingers generally turn out to have truly execrable taste in music—or perhaps the lawyers simply pluck out horrible songs on purpose to make the legal process as embarrassing as possible.

Case in point: Shaun Adams, a resident of Nebraska, who has just been named in a file-sharing lawsuit filed in an Omaha federal court this week. Adams is accused of sharing nine songs, including "I Want Action" by 80s hair-metal band Poison, "Drug Ballad" by Eminem, and "I'm Real" from an album that someone actually had the temerity to call J To Tha L-O!: The Remixes. (And the less said about the song "Thuggish Ruggish Bone" the better.)

But, musical taste aside, what's going on here? The RIAA said last year that it was abandoning its mass lawsuit strategy, focusing instead on inking voluntary graduated response deals with US ISPs. It may have dropped the "mass" from its mass lawsuit strategy, but the music industry is still filing federal cases and still asking for statutory damages that have no necessary connection to real losses.

Rank hypocrisy? Evidence that the music business is stuffed to the gills with lying liars?

Not quite; reality has an unfortunate habit of being complicated, and the wind-down of this lawsuit campaign is no exception. Let's take a closer look at what's going on.

Anatomy of a lawsuit

File-sharing lawsuits generally begin with someone being identified by an investigator like MediaSentry. That's what happened in the Adams case. The complaint tells us that "plaintiffs identified an individual using LimeWire on the P2P network Gnutella at IP address 75.163.64.246 on March 8, 2007 at 09:59:25 EST distributing 901 audio files over the Internet."

For McSherry, the worries about pursuing and then abandoning lawsuits sound more like PR problems than legal ones. Courts, she says, will look at each subpoena request on its merits, and won't simply refuse to grant future subpoenas because the RIAA had failed to fully act on one issued in a previous case. Instead, she thinks the issue may be that a wholesale pullback from cases might make the RIAA look bad.

With that IP address in hand, the RIAA then shoots off an "evidence preservation notice" to the ISP controlling the assignment of that IP address. The notice warns the ISP that a lawsuit is coming and that information on the IP address in question should be kept.

Music industry lawyers at this point still have nothing but a number, and ISPs won't generally supply any information without a court order. So off the RIAA goes to court. Music industry lawyers file a John Doe lawsuit with a federal court and ask the judge for approval to subpoena the ISP. Such permission is generally granted, and a subpoena is sent.

The ISP, which has probably retained the necessary data, looks up the user account assigned to the given IP address at the time in question. The name is finally turned over the music industry. (Note that this process has raised plenty of questions about accuracy.)

This process takes time, so the alleged infringement detected on March 8, 2007, may not have a name attached to it for months. Once the RIAA has a name and address, it sends out the dreaded settlement letters that promise a lawsuit if the accused doesn't pay up.

This can also take time. In some cases, people will call the settlement hotline, talk about the issue, make counteroffers, and in general keep the settlement process open. As long as that's the case, the RIAA generally doesn't press the issue in court. But once the settlement process breaks down, a complaint is prepared and filed in federal court. This time, though, it's not a John Doe complaint but a case filed against a named individual.

At this point, plenty of time has passed since the alleged infringement was detected, but from the RIAA's perspective, the group is not filing a "new" lawsuit here. It has simply converted an ongoing John Doe lawsuit into a named suit.

That's what happened in the Adams case this week, and it's why the RIAA says that it's no hypocrite for continuing with the legal process (remember that the group had always said it would continue litigating cases in progress, rather than dropping them).

So the interesting question here isn't about whether the group "lied" but about why it continues to press ahead with such cases. Given that the music industry has collectively decided that the sue-'em-all approach wasn't working, and given that it costs money at a time when the RIAA is suffering layoffs and budget cuts, why bother with cases against individuals in Omaha? Surely the group could simply not file the newly-named case; and while it's at it, why don't the labels just drop the drawn-out cases against Jammie Thomas in Minnesota and Joel Tenenbaum in Massachusetts?

The RIAA speaks

We put that question to the music trade group. Spokesperson Jonathan Lamy says that new cases were in fact no longer initiated after the summer of 2008, but cases like the Adams one—which have been in process since early 2007, remember—need to continue.

He casts the issue as one of fairness. "We're obviously pleased to transition to a new program going forward but that doesn't mean we can give a free pass to those who downloaded music illegally in the past," he told Ars. "How fair would it be to the thousands of individuals who took responsibility for their actions and settled their case while others are let off the hook? We're still in the business of deterrence and it must be credible."

Well... okay. Maybe. But how fair is it to the thousands of individuals who took responsibility for their actions and settled their cases while everyone else in the country was let off the hook after the summer of 2008? In essence, many people paid up because they happened to infringe copyright at one particular time, while plenty of others who did the same thing at a later date faced no penalty. For that matter, if fairness is the criteria, was it "fair" for 30,000 people to be put through the wringer while millions and millions suffered no penalty at all? And was it fair for the one court case that actually reached a verdict to award the labels more than $200,000 for a few songs?

We'll leave such questions to the ethicists and philosophers. But more may be at play in the RIAA's continuance of these cases than just a concern with treating everyone fairly. Are there any legal principles that might make it problematic to drop cases that are already in process?

The lawyers weigh in

Ars checked in with Ben Sheffner, an IP attorney who has done work for FOX, NBC Universal, and the John McCain campaign. Sheffner agrees that no legal principle prevents the RIAA from dropping cases like the one against Adams, but he does think the labels "have a legitimate fear that if they abruptly drop actual ongoing suits, the courts will get annoyed at them, and could be sympathetic to motions for attorneys' fees, counterclaims for abuse of process, malicious prosecution suits, and the like."

Those sorts of countersuits aren't just a possibility; numerous defendants have raised issues of process and malicious prosecution, including defendant Tanya Andersen back in 2007.

It's also not great form to seek subpoenas, use them to unmask people, and then not proceed with a trial. As Sheffner puts it, "courts could then be less sympathetic to them in the future when they seek subpoenas—the courts may think that they're using the subpoena process for something other than actually litigating a lawsuit through to its conclusion (settlement or otherwise), and they won't like that at all. These are debatable points, but the labels' position is definitely grounded in legal reality."

EFF attorney Corynne McSherry, on the other hand, isn't buying what the RIAA is selling. "I'm not seeing it," she tells Ars. Dismissals happen all the time; Tanya Andersen's case, for instance, had actually been dismissed by the music labels before Andersen filed her own lawsuit against them.

If a defendant has not yet responded to a complaint, the plaintiff can dismiss the case voluntarily and simply; if a defendant has responded, their permission is needed to dismiss. It's hard to see how people like Adams wouldn't be willing to provide that, and why courts wouldn't sign off on it.

For McSherry, the worries about pursuing and then abandoning lawsuits sound more like PR problems than legal ones. Courts, she says, will look at each subpoena request on its merits, and won't simply refuse to grant future subpoenas because the RIAA had failed to fully act on one issued in a previous case. Instead, she thinks the issue may be that a wholesale pullback from cases might make the RIAA look bad.

Whatever its reasons for continuing to litigate these cases, the RIAA at least appears to be sticking by the letter of the terms of its announcement last year; the labels described what they were going to do and are sticking with it. Whether that strategy is good, necessary, or fair is another question, and one that will probably keep Shaun Adams up at night through the course of his federal trial.