Challenging RIAA subpoenas can be costly, and not just because college kids have to dig deep into the sock drawer to pay lawyers of their own. Ars has learned that the RIAA's legal campaign against students is now built on escalating penalties; if you force the RIAA legal team into action, then end up settling, you could end up paying more than that initial $3,000. A lot more.

When college students are fingered by the RIAA's "pre-litigation letters," most schools pass the letters along and let students make their own decision about challenging the issue in court or settling for around $3,000. That's not cheap, but the RIAA has recently been making it far more expensive for students who try to fight. If a student doesn't respond to a pre-litigation letter and the RIAA has to go to court to get the name, the settlement fees goes up to about $4,000. And if a student decides to challenge the RIAA's subpoena or otherwise delay a trial, the price jumps dramatically to $7,000 or $8,000.

Of quashing and consequences

We spoke with a legal consultant for the RIAA who handles much of this litigation, and he explained that the music trade group has always seen legal challenges to its tactics. In the last year, though, RIAA lawyers have seen a serious uptick in the number of students who have attempted to quash subpoenas that would allow them to learn the students' identities. In some cases, this takes the form of filing a motion to quash, then waiting for the RIAA to file a counter-motion, then filling a motion to suppress the counter-motion, then waiting for the RIAA to respond, then... well, you get the idea.

When you're paying the RIAA's rates for legal help, this sort of thing costs serious money, and it leads to delay. Over the last six months, the RIAA has begun a concerted campaign to limit what it sees as frivolous litigation of this kind, as it says no defendant in the history of the RIAA enforcement campaign has successfully battled such a subpoena (although it should be pointed out that there are some motions to quash that are still pending).

In order to strike fear into the hearts of students everywhere, the RIAA has adopted a sort of anti-Wal-Mart model where it passes the costs on to you. In fact, the RIAA tells us that it is actually acting in everyone's best interests through this escalating costs approach. Because most students end up settling anyway, fighting the subpoenas generally just raises the amount of the fee they end up paying. It also costs them more in legal fees, it ties up the courts, and the whole process appears to bore RIAA lawyers to tears.

The legal consultant tells Ars that this has nothing to do with bullying people into staying silent and paying up. "We have no qualms with individuals exercising their rights to litigate real issues," he says. "[But] the issues being raised in these motions to quash are issues that have been resolved time and time again in the RIAA's favor."

Students sometimes think they can simply fight the subpoena and the case as hard as humanly possible, then simply drop it and settle down the line. The RIAA wants to get the word out, though: those choices have consequences that can be measured in beer money. Lots and lots of beer money.

Meet the scapegoats

We weren't surprised to find that the Electronic Frontier Foundation has a different perspective, but the gulf between the two sides is positively Grand Canyon-like in size. I spoke to EFF attorney Corynne McSherry, who argued that the copyright infringement claims at the basis of these lawsuits aren't always as strong as the RIAA would have people believe.

McSherry points to recent court decisions that cast doubt on the idea that simply making a file available is the same as actually distributing it to the public, and she points out that the MPAA has been wildly misguided in its own analysis of collegiate file-swapping. Given these issues and more recent questions about the limits of automated P2P enforcement, McSherry argues that it is "especially inappropriate and unfortunate" to punish people for trying to defend themselves in court. The "judicial process is important, and it's particularly important now when there seems to be real questions for the factual basis for these claims," she says.

And taking a bigger-picture look at the entire issue, McSherry says that there's "no reason to believe that any of this is stopping file-sharing or helping the RIAA or the artists that it represents to get paid."

Colleges are simply "scapegoated because they're easy targets," she says, pointing out that schools do far more to educate their network users about copyright, fair use, and file-swapping than any commercial ISPs in the US. The schools are easier to pursue than individuals because they are uniquely vulnerable to government pressure (in the form of grants and aid money), while at the same time they possess unique punishment powers that commercial ISPs lack.