There’s a new development from yesterday’s story on wholesale download pricing. While the record labels are still unwilling to divulge their wholesale pricing structure for online music sales in UMG v. Lindor without strict confidentiality provisions, an attorney for UMG has told opposing counsel Ray Beckerman that the 70¢ per track figure is in the ballpark.
The revelation comes from an e-mail exchange between Richard Gabriel, counsel for UMG, and Marie Lindor’s attorney Ray Beckerman that occurred in December, but was just made public today. In a December 19, 2006 e-mail to Beckerman, Gabriel said that the wholesale prices paid to the labels by the likes of Apple, Real, Napster, and others are not uniform, but "cover a range, with 70¢ being in the correct range."
The pricing information could be crucial for defendant Marie Lindor as she makes the argument that the $750-per-song damages sought by the RIAA are excessive and unconstitutionally severe. Lindor argues that the actual damages suffered by the RIAA are in line with the wholesale price per song, and if that is indeed the case, damages should be capped accordingly—between $2.80 and $7.00 per song—if infringement is proven.
A proposed order filed yesterday would force the recording industry to divulge closely-held details of their wholesale pricing arrangements. The record labels are fighting Lindor’s attempts to gain access to the pricing information. They have argued that it shouldn’t be divulged, and if it is, it should only be done so under a protective order that would keep the data highly confidential. The RIAA regards the wholesale price per song as a trade secret.
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