From the comments section:

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American Library Ass'n v. Reno, had upheld the requirement that secondary producers maintain records. The Department is not responsible if secondary producers chose to rely on the Tenth Circuit's holding in Sundance and not to maintain records while ignoring the D.C. Circuit's holding in American Library Ass'n v. Reno. A prudent secondary producer would have continued to secure copies of the records from primary producers after July 3, 1995. If those records, which are statutorily required, are not currently available, then the commenters are correct that they will be required to comply with the requirements of all applicable laws,including section 2257(f).
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