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After the uproar over the initial lawsuits against 261 music-swappers, the record labels sent out a “pre-litigation” letter designed to prompt a new set of 204 targets to settle up before being sued. The letter reads in part: . . . [H]ere are some things we believe you should consider: • Making copyrighted recordings available for others to download by putting those recordings into your so-called “shared” folder is copyright infringement under the Copyright Act, as is the unauthorized downloading of copyrighted recordings. Ignorance of the law is not a defense. What that means is that it does not matter whether you knew it was illegal. Whether or not you intended to infringe does not matter. . . . • . . . The minimum damages under the law is $750 for each copyrighted recording that has been infringed (“shared”). If a court determines you acted “willfully,” the maximum damage award can be even more. In addition to damages, you may also be responsible for paying the legal fees we incur . . . and are subject to having an injunction entered against you prohibiting you from further infringing activity. . . . • . . . [A]ny destruction of evidence would be a serious matter. If you have an interest in pursuing settlement discussions to avoid litigation or have other concerns you would like to discuss, you or your attorney may contact us . . . . If that doesn’t work, the record labels can go ahead and actually sue. The model complaint reads in part: 15. Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others. In doing so, Defendant has violated Plaintiffs’ exclusive rights of reproduction and distribution. Defendant’s actions constitute infringement of Plaintiffs’ copyrights. . . . Plaintiffs are informed and believe that the foregoing acts of infringement have been willful and intentional, in disregard of and with indifference to the rights of Plaintiffs. As a result of Defendant’s infringement of Plaintiffs’ copyrights and exclusive rights under copyright, Plaintiffs are entitled to statutory damages pursuant to 17 U.S.C. §504(c) for Defendant’s infringement of each of the Copyrighted Recordings. Plaintiffs further are entitled to their attorneys’ fees and costs pursuant to 17 U.S.C. §505. 18. . . . Plaintiffs are entitled to injunctive relief prohibiting Defendant from further infringing Plaintiffs’ copyrights, and ordering Defendant to destroy all copies of sound recordings made in violation of Plaintiffs’ exclusive rights. At least 61 people (not all of whom had been sued) have settled with the industry. The model settlement reads in part: . . . You acknowledge that you have distributed (i.e., by uploading) and/or reproduced (i.e., by downloading) the Recordings via the Internet and/or an online media distribution system without the authorization of their copyright owners. You further acknowledge that such conduct by you is illegal and wrongful. Therefore, you and the Record Companies agree as follows: 1. You shall pay to the Record Companies the total, lump sum of ___ Dollars (US $___) by cashier’s check. . . . 2. You agree to cease infringing each of the Recordings and any other sound recording protected under federal or state law that is owned or controlled by any of the Record Companies, whether now in existence or later created. This agreement not to infringe shall include, but not be limited to, using the Internet or any online media distribution system to upload or download the Record Companies’ sound recordings . . . . You further agree to destroy all copies in your possession of the Recordings and any other of the Record Companies’ sound recordings that you have downloaded . . . . 3. . . . [I]f you breach your obligations under this Agreement at any time, the Record Companies shall have the right to assert copyright claims for infringement against you . . . . 5. You agree not to make any public statement that is inconsistent with any term of this Agreement.

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