Recording Industry vs The People: Supposedly Fighting to Keep 70-cents-per-download price "confidential", RIAA files court papers admitting 70-cents is "in the correct range"

Thursday, January 04, 2007

Supposedly Fighting to Keep 70-cents-per-download price "confidential", RIAA files court papers admitting 70-cents is "in the correct range"

Ironically, as the RIAA battles on in its supposed struggle to keep its 70-cents-per-download wholesale price "confidential", in UMG v. Lindor, it has publicly filed court papers, in a discovery dispute before Magistrate Judge Robert M. Levy, admitting that the 70-cents-per-download price is "in the correct range" (See Richard Gabriel Letter, Exhibit A, 7th page) and that "the actual numbers are in the range that you have suggested [approximately 70 cents per download]" (Richard Gabriel Letter, Exhibit A, 6th page):

January 3, 2007, Letter of Richard L. Gabriel (Disclosure of Wholesale Download Prices)*
Exhibit A to Letter of Richard L. Gabriel*
January 3, 2007, Letter of Ray Beckerman responding to Gabriel letter (Disclosure of Wholesale Download Prices)*
Exhibit A to Letter of Ray Beckerman*
Exhibit B to Letter of Ray Beckerman*
Exhibit C to Letter of Ray Beckerman*
January 4, 2007, Letter of Richard Gabriel*
January 4, 2007, Letter of Ray Beckerman*

* Document published online at Internet Law & Regulation

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Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

6 comments:

CodeWarrior said...: Actually, for an RIAA tune, I would humbly suggest that TWO CENTS would be highway robbery.
~Code; January 4, 2007 at 11:23:00 AM EST
rufus said...: In a past article from afterdawn.com, the Allman Brothers and Cheap Trick filed a lawsuit against Sony for underpayment of royalties. The story states that Sony receives 70 cents per download. The article can be read at: http://www.afterdawn.com/news/archive/7515.cfm
UMG states the 70 cent download is in correct range according to papers filed in UMG vs Lindor. It may be interesting to find out if all of the record companies charge this same rate. It could suggest that the various companies got together to set a certain price and therefore there is no need to keep it confidential from competing parties. In my opinion, the matter should be investigated for price fixing, or even price gouging,since the cost of digital music is less costly than pressing CD's and packaging.; January 4, 2007 at 1:58:00 PM EST
raybeckerman said...: Dear rufus

I have read reports that the New York State Attorney General's office is indeed investigating their price-fixing.; January 4, 2007 at 1:59:00 PM EST
rufus said...: I know this is old news, but back in 2002 the record companies were found guilty of collusion in respect to CD sales. A good article is here:
http://www.mndaily.com/article.php?id=36590
It is interesting to note that the RIAA anti-file sharing campaign started four days before the lawsuit settlement was reached. I will let the readers draw their own conclusions about that. But my real reason for expressing my opinion today is to refute the statement from the RIAA attorney on page two of document 129 which states, "the record companies cannot share their pricing numbers with each other, because to do so would implicate very real antitrust concerns." I do not know if the major labels all charge at, or near, 70 cents per song,but if it is found out they do, is it pure coincidence? With the minimal cost of downloadable music, it seems to me, there would be a wide variety of pricing difference between the record companies. Especially with respect to supply and demand, meaning new and popular music would be more expensive than older, less popular music. With the recent past history of collusion between the record companies and, with further investigation, a possible " coincidence" that all downloadable music is sold at similar pricing, one can only come to the conclusion that the record companies are not really competing with each other like most of us know in the business world.; January 4, 2007 at 5:38:00 PM EST
Alter_Fritz said...: "In my view the best possible outcome would be guilty but[...]"

Not if you did not have downloaded any songs or don't even own a Computer like Ms. Lindor in this case!

"But what is to stop the RIAA from some sort of dismissal motion if it looks like its going to set a bad precedent for them?"

Absolutely nothing. And infact this is exactly what RIAA do routinely in cases where the noncopyrightinfringers stand up against the evil RIAA.; January 5, 2007 at 11:21:00 PM EST
raybeckerman said...: There were some posts from "anonymous" which have been deleted. There are not supposed to be anonymous comments on "Recording Industry vs. The People".; January 16, 2007 at 12:59:00 PM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove