State Of The Net: More Of The Same On Digital Copyright

from the pulling-the-trigger dept

At the Congressional Internet Caucus' State of the Net 2009 conference on Wednesday, there was also a panel discussion on the future of digital copyright that was anything but reassuring in terms of what to expect on the copyright front. Basically, it was a lot more of the same. The Congressional representative on the panel, Aaron Cooper, counsel to Sen. Patrick Leahy on the Senate Judiciary Committee, basically said that Leahy (who pushed through the highly problematic ProIP bill last year) is planning to introduce new laws concerning performance rights this year. This issue was seconded by Daryl Friedman, from the National Academy of Recording Arts and Sciences (and who's also on the board of SoundExchange). Friedman also later talked up the importance of unifying the various collections agencies into a "super agency." Funny that the guy from SoundExchange (who likely would be that agency, and which has a problem historically with actually paying money out) would suggest that...

The real problem, though, is that the entire framework for the whole debate remains the same. It's set up as this big adversarial situation, where content creators go on and on about the need to "protect" their "assets" and the importance of making sure that content creators are compensated. Of course, the problem is that content creators think those two things go together: i.e., you have to "protect" the content to get compensated. As we've seen over and over again, nothing is further from the truth. But it's this adversarial view that leads to troubling policy implications. It got so ridiculous that Alec French, from NBC Universal (and occasional Techdirt commenter), started comparing copyright issues to questions of who pulls the trigger in a murder. Specifically, he was talking about Cablevision remote DVR case, using the analogy that Cablevision set up the gun with a string attached to the trigger and a door -- and if someone opens the door (pushes a button on a remote) and the gun goes off and kills someone, Cablevision should be liable (just as the person who set up the gun would be liable). Of course, there's a huge glaring hole in this analogy. Recording a video for personal time shifting purposes is perfectly legal -- unlike murder.

But just the fact that the conversation is at that level shows what a huge hill there is to climb to have this policy debate actually get somewhere useful. The real problem (which the entertainment industry and, sadly, most of our elected officials refuse to entertain) is that copyright is fundamentally broken. It's a system that was designed for an entirely different purpose, and as each new technology innovation has come around, we've applied a weak duct-tape patch to copyright law to try to deal with that unique scenario. And, we keep patching the law here and there, and with each new innovation, copyright law doesn't quite work right. This was a point raised by Gigi Sohn of Public Knowledge on the panel -- and she's exactly right. But, folks like Alec French dismissed the whole concept with a wave of the hand to talk about stuff that "actually might happen" in Congress. I have no doubt that French is correct that Congress won't take up the real issues, but that's a big problem.

So, in the end, there's probably not much to look forward to when it comes to copyright reform. There are very few Congressional reps who actually understand the issues, and there's little likelihood of them gaining much more interest. Instead, they're going to continue with their superficial understanding of the issue, and rely on representatives of the entertainment industry to tell them what they need. And, so we get more unnecessary compulsory licenses, stricter (more damaging) copyright controls and a bigger mess to deal with.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    :Lobo Santo, Jan 15th, 2009 @ 7:23am

    Usually, about the time a new country is founded, new and innovative laws get made.

    Yep, any minute now... new country being founded...
    any minute.

     

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  2.  
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    Twinrova, Jan 15th, 2009 @ 8:06am

    There's going to be the day when...

    ... the recording industry will demand microphones in showers so they can properly sue those who sing while showering.

    Or worse, I'll be humming a song walking down the road and get tackled for "copyright infringement".

    It's a very sad state to see those who are supposed to represent us have absolutely no clue on what the real issue is. Instead, they'll continue to get emails from the public demanding change, but won't do a damn thing about it.

    Talking with another poster at another site, we had entertained the idea of using the media to push public service announcements regarding the entire copyright issue. We would have to buy those 30 minute blocks to do so, but hey... it may just work.

    I think, until the public is properly educated, this issue will never be resolved. It's nice to see more consumers becoming aware as their products fail to properly work, and they're left wondering why.

    Until the consumer stands up to copyright issues, the blog's correct in that no new changes for reform will happen and will continue to get worse.

    Hence, I'll continue to fight the cause by not buying a product from these idiots, and not giving taxes to my state.

    Spread the message, and together we'll make the difference!

     

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  3.  
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    Corey, Jan 15th, 2009 @ 8:24am

    Don't want to get in the same old copyright debate with Mike

    But I have to say that I do find it funny that whenever anybody disagrees with Mike, it because, according to him, they don't understand the issue. It seems he's the one who doesn't understand both sides of the issue if he thinks there's only one and everyone who disagrees with him is just wrong.

     

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  4.  
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    LostSailor, Jan 15th, 2009 @ 9:16am

    Mike, as I've come to realize, is a "free-market" purist, and over the years I've come to be skeptical of purists of any stripe.

    What I find interesting is Mike's line: "So, in the end, there's probably not much to look forward to when it comes to copyright reform." This is interesting because Mike usually is not very much interested in copyright reform, but in the complete abolition of copyright and patent law; I gather he seems to think that there may be some value in trademark, but decries what he sees as frivolous trademark actions (and I'll agree partly that some of the ones he's blogged about are indeed frivolous).

    I've commented on other threads that some kind of reform of copyright is clearly called for. But what Mike and others here don't seem to recognize is that abolition is simply not going to happen, at least not as part of the legal code. Copyright (and patent) is too firmly entrenched in both law and business to get rid of entirely.

    Even reform is extremely difficult. Do you shorten copyright term only for new content? If so you're still "locking up" legacy content. Do you shorten the term and otherwise "loosen" protection for all content? If so what about people who have relied on those rules in the past, aren't you taking away rights from them? Mike has made the argument against term extensions under the guise of protecting "session musicians" that those musicians "made their deal with the public" when they recorded music under the then existing copyright laws, so extending the term of copyright is unfairly taking rights from the public. I've yet to see the argument applied to content creators and publishers who operated under the current terms when it comes to shortening those terms.

    Perhaps the best chance of reforming copyright law lies in the area of expanding and more clearly defining "fair use" (which would allow for expanded remixing of content) and most promisingly in the area of "orphan works" which could allow content to fall into the public domain earlier and more easily. But Mike and others here don't seem to like these ideas much because they are too incremental. They seem to think that because reform is difficult and slow, the better solution is to just scrap the whole thing. Since that's not going to happen, it's difficult to take them seriously.

     

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  5.  
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    Anonymous Coward, Jan 15th, 2009 @ 9:38am

    Re: Don't want to get in the same old copyright debate with Mike

    I've only just stumbled on this blog so I'm trying to work out where he's coming from. I am having trouble wrapping my head around some of the things he writes, mainly because I work with performance rights in Europe but grew up in the US. From my experience, radio here is much more open and diverse than what you get in the states, music wise. Probably because all the payola scams are totally illegal, monopolies are illegal and so smaller players (I'm indie) get a fairer shot at exposure without the Clear Channels buying up all the stations. Things have gotten worse over the last years, but still much better than in the US. But European countries do pay performance rights to license owners and artists and it hasn't come close to destroying the free exchange of art, as the free marketers would have you believe. Under free market models you end up with mega corporations, or the highest bidder, owning too much of the content providers.

     

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  6.  
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    Anonymous Coward, Jan 15th, 2009 @ 10:31am

    I am heartened that copyright remains alive and well despite the efforts of the few who advocate emasculating the law. I am, however, disheartened that so many perceive the need to modify copyright law to tighten it even more than is now the case, but do understand the perceived need given the actions of those very few who do their level best to try and wrest away what are clearly quite valuable assets in the view of content creators.

    The Fox/Warner debacle did bring to light the substantial efforts some content creators must overcome in order to present new content to the market. I happen to believe it is appropriate to recognize this, and copyright law does serve in its own unique way to provide some measure of creation incentive to content creators. Importantly, there is unanimity among legal scholars that copyright does serve a useful and important societal function, though I readily admit that there are significant differences of opinion between such scholars on what should be the metes and bounds of copyright law.

    Quite frankly, if it was within my power I would turn the copyright law clock back to the stucture of the law as it existed prior to January 1, 1978. Whatever its faults may have been, the required formalities did have a very salutory effect of better demarcating content creators' rights and responsibilities under the law. In my view it is a shame that the law was changed in the name of international harmonization to incorporate European views concerning copyright.

     

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  7.  
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    Buzz, Jan 15th, 2009 @ 10:36am

    Re: Don't want to get in the same old copyright debate with Mike

    I've been following Mike's writing for a couple years now. He has never disagreed without having a good reason and objective logic to support his statements. He never outright states, "You're wrong. Goodbye."

    Copyright is an abomination. It claims to be all about rights given to content creators; it is really all about stripping rights from content consumers.

     

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  8.  
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    LostSailor, Jan 15th, 2009 @ 10:51am

    Re: Re: Don't want to get in the same old copyright debate with Mike

    I didn't say, nor never meant to imply that Mike doesn't have his reasons for his opinions, and while he can be sometimes dismissive of contrary opinions, he has generally been quite gracious with his time in responding to critics.

    But like Mike, you seem to value the rights of content consumer vastly over content creators. The founding fathers here in the U.S. seemed to think that copyright was important enough that they didn't just write statutes about it, they put it in the constitution. And they put it in the constitution before putting in such other "rights" as freedom of speech, assembly, and religion. Are those "abominations"?

     

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  9.  
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    LostSailor, Jan 15th, 2009 @ 10:57am

    Re:

    I assume you mean the "Fox/Warner" debacle over The Watchmen film. That is only tangentially related to copyright and is more of a contract dispute, given the project's lengthy and tangled history (not to mention overly complicated and poorly constructed contracts).

    But I agree with you that the pre-1978 laws, especially the terms of copyright and the requirements to take active measures to register and enforce those rights, were better than the current law. However, some harmonization internationally was clearly needed (and would be even more important today). I doubt that would satisfy Mike or other anti-copyright purists here, since it wouldn't really do much to limit litigation.

     

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  10.  
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    Mike (profile), Jan 15th, 2009 @ 12:07pm

    Re:

    Mike, as I've come to realize, is a "free-market" purist, and over the years I've come to be skeptical of purists of any stripe.

    Just to clarify: I am not a free market purist (nor am I a "libertarian"). I am simply interested in what will best encourage innovation, and am open to all ideas that might do so. However, I have yet to see a better system than the free market in encouraging such things.

    What I find interesting is Mike's line: "So, in the end, there's probably not much to look forward to when it comes to copyright reform." This is interesting because Mike usually is not very much interested in copyright reform, but in the complete abolition of copyright and patent law; I gather he seems to think that there may be some value in trademark, but decries what he sees as frivolous trademark actions (and I'll agree partly that some of the ones he's blogged about are indeed frivolous).

    Again, this is not quite true. While I do feel that in the end, we'd probably be better off without copyright law, I do not think it's practical or reasonable that it will be aboloshed. So I'm more than willing to hope for reforms that take it in the right direction, and lead those who rely on it as a crutch that they need not to so.

    Even reform is extremely difficult. Do you shorten copyright term only for new content? If so you're still "locking up" legacy content. Do you shorten the term and otherwise "loosen" protection for all content? If so what about people who have relied on those rules in the past, aren't you taking away rights from them? Mike has made the argument against term extensions under the guise of protecting "session musicians" that those musicians "made their deal with the public" when they recorded music under the then existing copyright laws, so extending the term of copyright is unfairly taking rights from the public. I've yet to see the argument applied to content creators and publishers who operated under the current terms when it comes to shortening those terms.


    Actually, you have misrepresented my position again. I have said that it does not make sense to remove copyright from those who had a specific copyright term when they created their content. I hope they recognize they can do better not relying on the crutch, but it was the deal they made with the public, and I do not believe it wise to retroactively change that deal.

    Perhaps the best chance of reforming copyright law lies in the area of expanding and more clearly defining "fair use" (which would allow for expanded remixing of content) and most promisingly in the area of "orphan works" which could allow content to fall into the public domain earlier and more easily. But Mike and others here don't seem to like these ideas much because they are too incremental. They seem to think that because reform is difficult and slow, the better solution is to just scrap the whole thing. Since that's not going to happen, it's difficult to take them seriously.

    Actually, I am all for both reforms, and have stated so repeatedly on this site.

    So... I'm not sure why you have attributed to me positions I do not hold, but hopefully this clarifies.

     

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  11.  
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    Doug, Jan 15th, 2009 @ 12:50pm

    Copyright

    Enforcement is the key, and currently original producers (large and small) have to jump through hoops in a long battle to have their content removed from any site that displays.

    The easy solution is to stop the flow of revenues to the sites that routinely steal content. If only it were youtube life would be easy, but the amount of websites now making significant revenues by simply posting someone elses content on their sites is massive.

    If you as the producer contact them (including youtube) you are asked to go through a detailed process of proving the content is yours, rather than them proving it is theirs.

    Worse yet, contact the advertisers on these site, they claim ignorance, even in the face of obvious evidence. Example send google adsense the url of stolen content on another site - send them the corresponding url on the original site with watermarks, copyright etc. and they simply ask you as the producer to go through expensive and time consuming process of proving each individual item is yours.

    So the answer - advertisers (the agencies, networks etc.) must be responsive to copyright infringement (because they aren't) - and should face stiff penalties and fines if they do not take swift and appropriate action in removing aany advertisements from illegal material on rogue websites (youtube included).

    What's the old saying "cut off the head on the snake"

     

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  12.  
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    LostSailor, Jan 15th, 2009 @ 1:04pm

    Re: Re:

    Mike:

    I appreciate your response: I am not trying to misrepresent your positions and definitely want to be corrected if I'm wrong about them, but what I wrote are my impressions of your positions.

    And my impression from your many posts on the subject is that an "open, free market" is the best thing going, which strikes me as a pretty "purist" position. I understand that you say this in the context of encouraging the maximum innovation, and while innovation is a great thing, it's not the only thing and is not necessarily the most efficient thing. While you've been antipathetic to intellectual property, protection of intellectual property remains, at least in many people's opinion, an important part of the market and can positively contribute to innovation.

    I'm heartened to see you acknowledge that abolition of copyright is impractical, but over the past year or so I've been visiting your blog (and I was visiting long before I started commenting), you seem quite critical when any suggested reforms fall short of effective evisceration of copyright protection. Indeed, even now, you post that you "hope" for reforms that will lead people away from this "crutch." Might I suggest that instead of just deriding copyright as a crutch and hoping for change that using your considerable advocacy position for copyright reforms that are practical, even if they don't go as far as you'd like. If change is going to happen, it has to start somewhere and is likely to be incremental. This is one of the points I've raised from time to time here regarding existing publishers/record labels adopting or experimenting with different business models. Frequently around these parts the rhetoric is that if these companies or content creators don't change their business models drastically and almost immediately, they're doomed, doomed!. But any business that made such an abrupt change to it's basic business model would either have a stockholder revolt or go under. Most smart businesses will keep trying to wring as much revenue out of current models while experimenting with new models and seeing which ones work for them.

    I have said that it does not make sense to remove copyright from those who had a specific copyright term when they created their content. I hope they recognize they can do better not relying on the crutch, but it was the deal they made with the public, and I do not believe it wise to retroactively change that deal.

    I don't intend to misrepresent, and I may have missed a post or two, but I've usually heard this argument made against extensions of copyright (as proposed in Europe); I'm glad to hear you now make the argument against changing the term of copyright by retroactively shortening as well.

    Actually, I am all for both reforms, and have stated so repeatedly on this site.

    So... I'm not sure why you have attributed to me positions I do not hold, but hopefully this clarifies.


    Again, I posted my impressions and, obviously incomplete, understanding of what you've posted. I'm glad we're in agreement that sensible reforms to copyright that might have a chance in actually being enacted (fair-use expansion/clarification and action on orphaned works). Actually, the orphaned works issue is likely to be addressed by Congress first as it has substantial advocacy from the library community.

    Hopefully we'll see more encouragement of positive reforms such as these here.

     

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  13.  
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    CrushU, Jan 15th, 2009 @ 1:12pm

    Re: Re:

    So... I'm not sure why you have attributed to me positions I do not hold, but hopefully this clarifies.

    Because a straw man is much easier to defeat.

     

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  14.  
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    Buzz, Jan 15th, 2009 @ 2:33pm

    Re: Re: Re: Don't want to get in the same old copyright debate with Mike

    Correct. I do value the rights of the consumer more. The reason I do so is having seen the consequences of granting rights to the content creators. DRM? Licensing? Selling stuff multiple times to the same customers? Dictating what consumers are allowed to do with the content? Operating like the Internet does not exist? Pretending it is still 1989?

    Sorry, but I do not approve of that society. I refuse to pay for something I can do myself. The entertainment industry wants to make it illegal to rip movies into other formats (even for PERSONAL use). Even though I am fully capable of obtaining the tools necessary to rip a Blu-ray Disc onto my computer, I am not allowed to because the content creators do not approve. This is like lawn-mowing businesses insisting that people not be allowed to cut their own lawns. "How else can we feed our children??? If everyone mows their own lawns, we won't make any money!" I know! FIND ANOTHER JOB!

    The Internet is proving time and time again that people are adjusting to a world where information moves freely. You CAN make money (and a lot of it) without copyright/patent-enforcement. You CAN make money while still allowing digital products to be freely copied.

    THAT is why I oppose content creator rights. They refuse to acknowledge mine.

     

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  15.  
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    LostSailor, Jan 15th, 2009 @ 3:20pm

    Re: Re: Re: Re: Don't want to get in the same old copyright debate with Mike

    Buzz:

    I refuse to pay for something I can do myself.

    A better analogy, though still imperfect, would be to not just mow your own lawn, but to build your own damn lawnmower. Or make your own movies. Or write your own books. Or record your own music. What you are calling "doing it for yourself" is not creating the content, it's copying and perhaps distributing the content.

    I know! FIND ANOTHER JOB!

    No, find other content whose creators and distributors don't mind. Mike says frequently as you do here that "over and over again" content creators are making "a lot" of money allowing free copying and distribution of digital content, but that's not quite true. What we're seeing is growing, though still somewhat isolated, numbers of examples of the model being experimented with and showing some promise. That process will continue alongside the current model.

    But when you buy a movie or even a song in digital format, you enter into an agreement about what you can do with that content. If you don't like the restrictions, don't enter into the agreement and don't use the content. If Mike and you are right, soon those content creators won't be able to make anything at all because no one will buy their content.

    If you want content creators to acknowledge your "rights" shouldn't you acknowledge theirs? Why should content creators have fewer rights with regard to their work than you do?

     

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  16.  
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    Buzz, Jan 15th, 2009 @ 5:59pm

    Re: Re: Re: Re: Re: Don't want to get in the same old copyright debate with Mike

    Ah, but I DID buy the lawn mower. However, when I went to install a larger gas tank, the mower makers freaked out that I modified my own unit instead of buying a whole new one.

    My original analogy holds up just fine. I BOUGHT the movie. I wasn't talking about distributing it to other people. I was talking about making it more useful for myself. That being illegal is a ridiculous protection of profits. Why should I have to buy the same movie for my TV, my computer, and my iPod all separately?

     

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  17.  
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    SomeGuy, Jan 16th, 2009 @ 5:37am

    Re: Re: Re: Don't want to get in the same old copyright debate with Mike

    And they put it in the constitution before putting in such other "rights" as freedom of speech, assembly, and religion.

    It's important here to note that when drafting up the Constitution it was understood that they were granting powers to the Government, and that anything not granted was by default denied. With that perspective, there's no need to talk about the rights of the people (speach, religion, assembly) because that wasn't the point of the contract. Putting something in say the Government was allowed to grant temporary monopolies, however, fits in perfects because it articulates a power given to the government which would be denied otherwise.

    The Bill of Rights came about a bit after the fact because The People were concerned that some of their basic rights were less-than-clearly stated and they wanted to be assured, in righting, that certain rights wouldn't be infringed. It wasn't necessary to express those rights of the people because the Constitution was about outlining the powers turned over to the Government rather than all rights and powers for everyone everywhere.

     

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  18.  
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    gene_cavanaugh, Jan 16th, 2009 @ 8:02pm

    Copyright

    I don't agree that Congress "doesn't understand". They clearly understand that lobbyists will help them be reelected if they help the industry.
    Transparency, and a public that CARES would be the only long term solution.

     

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  19.  
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    alec french, Jan 19th, 2009 @ 2:47pm

    response

    Mike,

    Hello again.

    Just wanted to respond to your take on my comments on the Cablevision case. You say there is a huge, glaring hole in my booby-trapped gun analogy because recording a video for personal time-shifting purposes is perfectly legal, whereas murder isn't. Alas, you have missed the point of my analogy, and thus the fundamental point at issue in the Cablevision case.

    Despite the fact that Cablevision outsources the ultimate button-pushing (door opening) to the home TV viewer, Cablevision, not the home TV viewer, actually makes the copies through its Remote DVR service (effectively pulls the trigger by setting up a booby-trapped gun it has knowingly designed to fire when the door is opened). If Cablevision is making the copies (pulling the trigger), it is exercising the exclusive rights (reproduction and public performance) of the copyright holder as part of a for-profit, commercial service (committing murder - OK, a wee stretch on the severity scale!!!), not for its own personal time-shifting purposes. In other words, the actual identity of the copier determines whether the copy is being made for personal, time-shifting purposes or in order to establish a for-profit, commercial service built on the exercise of copyright holders' exclusive rights.

     

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