Independent Musician Explains Why Article 13 Will Be An Utter Disaster For Independent Artists

from the because-they-rely-on-these-platforms dept

A decade ago, when there were still people laughably insisting that the internet was the worst thing that ever happened to musicians, I kept pointing out examples of artists who were creatively embracing the internet to great success — connecting with fans, building new business models, and succeeding. And every time I did that, people would complain that this example was an “exception” or an “anomaly.” And, they had a habit of qualifying any success story — even if the qualifications were contradictory. For example, if I highlighted an independent artist’s success, people would say “well, that’s just a small independent artist, they have nothing to lose, no big rock star could ever succeed that way.” And then, when I’d highlight a big rock star having success embracing the internet, I’d be told “well, it’s easy for him, he already had a huge following.” It got so silly that back in 2008 one of our commenters coined “Masnick’s Law” to describe this phenomenon:

Masnick’s Law states that in any conversation about musicians doing something different to achieve fame and/or fortune someone will inevitably attempt to make the argument that “it only worked for them because they are big/small and it will never work for someone who is the opposite,” no matter how much evidence to the contrary might be readily available.

In 2009, getting fed up with this, I wrote a long article detailing examples of a whole bunch of success stories of artists embracing the internet mixing in ones who were hugely famous with ones who were moderately successful and ones who were small independents… and someone complained in an email that these were all exceptions.

Over the past few years, I thought this kind of “exception” thinking had mostly died out, but it showed up again recently. We posted famed science fiction author Ken MacLeod’s excellent opinion piece arguing that, even though he’s a big supporter of copyright and against anyone pirating his books, he’s absolutely against the EU’s plans for Article 11 and Article 13 in the EU Copyright Directive. The key line: “Far greater than my interest in copyright is my interest in a free and open internet ? or, failing that, in keeping the internet as free and open as it is now.”

And, in the comments… Masnick’s Law reared its ugly head again:

Straw-man argument, since he has a big publisher to both pay him and defend his property rights. He’s not an indie who markets his own work on the internet and has to fight mass piracy on his own. He doesn’t need copyright protection when he has distribution sending his fans to pay for his work (while the same fans might pirate the indies).

He is the one who wants big publishers to continue to dominate and profit, while the indies want direct access to the public and the elimination of the middleman that is this man’s meal ticket.

Of course, that’s nonsense. That comment is based on the idea that you need to “fight” mass piracy, rather than looking for ways to build a successful business model that involves connecting with your true fans.

And, of course, the impact on independent artists will be even more serious than those signed to big publishers/labels/studios/etc. Indeed, Ken’s own Twitter feed pointed me to an independent musician in the UK, Stephen Blythe, who has written about why Article 13 will make life worse for him as an independent musician. After detailing his situation as a musician, he explains that if you want to get your music out there, so that you can build a fanbase, you need to get your music onto the “most popular music” sites. And to do that you have to use a special third party:

If an independent artist wants to get their music out there into the world, to the most popular music sharing sites, they need to use some kind of recognised distributor ? as direct submissions are either impossible, or extremely restricted. A pile of these have sprung up, including Amuse, RouteNote, DistroKid, etc. Some charge a subscription fee per year, some take a cut of any revenue generated, and some of them don?t even have a website ? operating just from an app. The concept is simple: You send your music to them, and they distribute it digitally to the various partners. One of these partners is YouTube.

But it turns out that those services, as part of their “value add” will “enforce copyright” for you:

What isn?t made clear by these distribution networks is that by submitting your music to YouTube, you essentially give the distributor a licence to enforce your copyright on the platform using the ContentID system. This automatically detects any music uploaded along with a YouTube video (including short clips), and flags it up as unauthorised. To many this might sound great. Stop people stealing your stuff!

The problem of course is that there is very often no way to denote authorised uses or channels with these common distribution services.

He then details two separate scenarios of artists being harmed by this kind of “enforcement” including one that happened directly to himself:

An artist (A) is asked by a fellow musician (B) if they would be interested in a collaboration. The process is simple: B will supply A with some vocal samples that A can then chop up and use however they wish. A gladly accepts, and comes up with a whole electronic composition that brings the vocals to life. B loves the track, and asks if they can use it on their upcoming DIY release. A agrees. B?s friend runs a small label who agrees to put out the album, and they use a distribution service which sends the album to all the major partners automatically ? including YouTube?s ContentID system. A few years later, A is producing short video blogs and decides to use one of their old tracks as background music. It gets flagged up as a copyright violation automatically, which A disputes ? but the appeal is rejected by the distributor, who has no knowledge of how the track came about in the first place.

He then explains that in a world where everything involves a massive ContentID-like filter, you create a terrible situation for independent musicians, who are at the mercy of much larger companies with no flexibility:

  1. Independent musicians are at the mercy of a system which locks them out from negotiating their own contracts without major label backing, and they therefore have to rely on gatekeepers which provide an inadequate level of information and control over their own music.
  2. Artists who are starting out lack the information required in order to make informed decisions about their interaction with such services, and can inadvertently give away their ability to exploit their creations commercially due to how the systems are constructed.
  3. The ContentID approach to copyright enforcement gives huge clout to the first entity to register a piece of work within their system ? which is rarely going to be the artist themselves.
  4. This model has no room for the ad-hoc, informal, and varying ways in which independent musicians create and share their works online.

Or, in short:

The current ContentID system works on a first-come, first-served basis. It puts huge power in the hands of intermediary distribution services which do not provide a service that can ever give artists the amount of control over their licenses they would require to fully exploit their creations. The nature of the beast means that informal collaborations between like-minded folks can unexpectedly tie up their creative expression years down the road. Article 13 will only expand these systems, which will inevitably be less sophisticated on other platforms than ContentID. Independent artists lose the ability to share their work even further.

I’d argue it goes much further than that. First, the major record labels see everything stated in the paragraph above as a benefit of Article 13. Giving huge power to the middlemen gatekeepers puts them back in the position they were in year’s ago, where they get to decide who gets distribution and who doesn’t. That system created a world in which musicians had to hand over their copyright and nearly all of the revenue generated from their works in exchange for a pittance of an advance (which was really just a loan). So, putting more gatekeeper power back in their hands is the goal here.

Second, and even more concerning, is that Article 13 is premised on only the largest platforms being able to comply — meaning that there will be less competition on the platform side and fewer and fewer places for independent artists to distribute their work, should they wish to do so. That gives them fewer options and less ability to build a fanbase, unless they get plucked out of obscurity by a giant gatekeeper (again, going back to the way things were a couple decades ago).

Now, I’m sure that someone will pop into the comments and point out that this example doesn’t count because it’s just a “small, independent artist,” and that his concerns don’t matter to “real” artists (meaning major label ones), but, haven’t we played that game long enough?

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Comments on “Independent Musician Explains Why Article 13 Will Be An Utter Disaster For Independent Artists”

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Mason Wheeler (profile) says:

ContentID causes more harm than it prevents. The only takedown system that makes any sense is to follow the pattern our jurisprudence has laid out for literally everything else: innocent until proven guilty in a court of law. And if publishing interests find this inconvenient, well, too bad. They got the DMCA made law using underhanded means, and they’ve spent 20 years abusing it, and now it’s time to throw it out. This is why they can’t have nice things.

Stephen T. Stone (profile) says:

Re: Re: Re:4 Re:

It’s a funny thing: Rather than debate the indie musician’s arguments on the merits, you take to insulting his appearance as if that should invalidate his point.

[NARRATOR: His appearance does not invalidate his point.]

If you have confidence in any actual counterarguments you could make against his point, you would offer those. That you go “lol he ugly that makes him a dumbass” proves only that you are a coward in that regard.

Toom1275 (profile) says:

Re: Re: Re:5 Re:

It’s just like the supposed "harm" NN causes small ISPs. The existence of real-world examples like Ken MacLeod or the dozens of ISPs that wrote the FCC to say NN was fine tends to undermine the whole-cloth dipshill fantasies like "these five small ISPs’ were so harmed that their investment almost doubled" or "piracy is stealing all the monies."

TFG says:

This example doesn’t count because it’s just a small independent artist talking about how things actually work from the perspective of a small, independent artist, who the articles purport to serve, and what he’s saying would indicate that Article 13 won’t actually help him, which is clearly impossible because people said it would.

Real artists would support the article because clearly it says it helps them out and of course they are constantly hemorrhaging money from massive amounts of piracy that can only be stopped by passing an article that will put all the control back into the hands of organizations like the RIAA. They obviously know best, and would never ever lie.

Anonymous Anonymous Coward (profile) says:

Re: Re:

At what point in your brainwashed adolescence did you get trained to believe everything any government tells you?

So far, the government has failed to provide any logical evidence of what they say Article 13 will do, and what it will actually do. For that reason your otherwise unsupported acceptance of their doctrine means nothing to any person who has some critical thinking capabilities.

James Burkhardt (profile) says:

I find it interesting how a writer with a big publisher talks about how the Articles will hurt smaller creators, and the trolls are like: well that’s easy for him to say, hes got a big publisher!

Like, that’s the point. He has a large publisher with money and clout. He benefits in a world where all websites have to be Youtube, with automated filters and every incentive to ignore the concerns of smaller creators. His publisher means his content will stay with him. He is concerned with smaller artists without that clout, who would be hurt.

Stephen T. Stone (profile) says:

Article 13 is premised on only the largest platforms being able to comply

There is a certain irony in this statement: For all the whining from the usual troll brigade about the major platforms (e.g., YouTube) and their corporate overlords (Google) being too powerful and requiring real competition to prevent monopolies (real or virtual), they are also the ones who come out in support of measures such as Article 13, which would give those major platforms more power and destroy their smaller competition for the sake of “strengthening copyright”. I have to wonder which one they ultimately want more: stronger copyright or a weaker Google.

Stephen T. Stone (profile) says:

Re: Re: Re:

And therein lies my point: The troll brigade can’t have it both ways.

The positions of “Google must be broken up to protect small artists/companies” and “Article 13 must exist to strengthen copyright” are mutually exclusive; they cannot pretend to support them both without some serious cognitive dissonance.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"…they cannot pretend to support them both without some serious cognitive dissonance."

Copyright in itself invites cognitive dissonance to begin with, assuming you actually profess belief in human nature, history, or market values.

Once you’ve trained yourself to ignore that two "truths" you are aware of can not be reconciled, it gets easier every time you have to do so.

As Galileo found out.

Anonymous Coward says:

There becomes a point with all the crying and doom that the world will end if some small group does not get its way.

As far as I am concerned the musicians and labels created this situation.

They can solve it any way they like.

All I know is that I am NOT going to pay for it with money in any form.

I may have to listen to commercials on my radio but I rather enjoy then as they keep repeating the same words which allows me to learn another language rather easily. As you should guess the radio program is not in English.

As far as the old TV I could only get programs in English so I turned it off with no plans of turning it back on.

David says:

A strawman on the other side is still a strawman

Of course, that’s nonsense. That comment is based on the idea that you need to "fight" mass piracy, rather than looking for ways to build a successful business model that involves connecting with your true fans.

If that were so simple, copyright law would never have been created. Copyright law was created exactly because the creative people were not identical with those who were most successful at marketing their creations. Forcing the marketing specialists to contract with the artists was helping artists survive.

Now arguably in the age of humongous media corporations, copyright should be less strict and less necessary than when it was created because the marketing specialists are best equipped to monetize on being first to market, and having the ability to syndicate artists for creating events and unique experiences.

Instead, copyright has divested itself of the creators. The majority of a copyright’s marketing time is when the artist is deceased and has no voice for shaping their creation any more. Artists have to sign stranglehold contracts with collection societies that essentially don’t allow them control over their creations any more, to the degree where the collection societies collect royalties on the works of "anonymous" artists on the theory that those are under contract and just trying to escape their contractual agreements not to distribute outside of the copyright society.

"You force us to make contracts with you? Let’s see who is more adept at making contracts."

Making a deal with the devil rarely turns out quite as expected.

Scary Devil Monastery (profile) says:

Re: A strawman on the other side is still a strawman

"If that were so simple, copyright law would never have been created. Copyright law was created exactly because the creative people were not identical with those who were most successful at marketing their creations. "

Pure unadulterated bullshit, as history proves quite easily. Copyright, in it’s early inception, was easily recognizable as a completely unnecessary legislation primarily meant to consolidate the grasp over the market owned by publishers.

Which is why the parliament at the time voted the toxic proposal down multiple times until the Guild of Stationers managed to bribe enough MP’s to finally shove the damn thing through.

Some 95% of what humanity describes as culture was created entirely outside of or before copyright and indeed could arguably only have been created without copyright preventing a better rewrite or derivative of what had come before.

Ninja (profile) says:

It doesn’t matter if it’s small creators or huge, rich ones or the public. If it is bad for one it’s bad for all. If it’s good for most and average for a few then though luck. Giving a limited control to creators is average for the public but it should benefit creators. If only the elite few are greatly benefiting then it’s wrong.

This shit follows the same logic many governments do: they keep doing things that benefit a few rich people in detriment of the great majority.

We should all get average to good benefits. If just a portion is heaping all the good things then it’s time to start over.

Anonymous Coward says:

Re: Re:

I’ve made well into five figures off of my work without ever selling it to a “rich” corporation, all from direct marketing over the internet. That revenue was all but gutted by piracy websites to the point where I have to shop my work through Hollywood to ensure it will be protected properly. If anything gets picked up I’ll make more in a day from the “evil” people than in years from the masse, and piracy of my work will be irrelevant because it will be supported by advertising.

Many “pirated” works are left out intentionally to be stolen, because they are disguised marketing materials for expensive seminars that are often true scams. Look up internet marketing techniques sometimes: they compile an e-book that doesn’t really say anything, give it away or sell it cheaply to collect valuable names that the internet markters then target. The “how to make money online” books are the worst. People get a free e-book not realizing that their name as a “hot lead” is worth several dollars per shot to the internet marketres, who then charge thousqands of dollars for seminars which cannot be pirated, and which contain information that could have been sold to the masses through an e-book, had proper copyright protection existed.

Social media celebrities have big tech backing them up and protecting both their distribution and copyright, which is wh you see guys making millions on YouTube or Instagram, while those who attempt traiditional marketing starve. It’s literally impossible to pirate someone like Michelle Phan.

Anonymous Coward says:

Re: Re: Re:

"I’ve made well into five figures off of my work without ever selling it to a "rich" corporation, all from direct marketing over the internet. That revenue was all but gutted by piracy websites to the point where I have to shop my work through Hollywood to ensure it will be protected properly."

[citation needed]

If you’re going to give personal examples, give actual examples. Which works?

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

…and, apparently, is convinced that if copyright were only respected he’d be a rich man because all that stands to obstruct his inevitable success is the fact that people can press ctrl-C on their computers.

Basically the entitled fuckwit who believes he should have a pair of extra digits in his paycheck if the world only had the good sense to stay in the 18th century.

He’s wrong, of course. In the society where his arguments might fly he would be carried out on a rail wearing tar and feathers or have been quietly shanked and slipped into some mass grave on the outskirts of town.

Kalean says:

Re: Re: Re:

It’s literally impossible to pirate someone like Michelle Phan.

Michelle Phan’s content is all available for free on the most accessible streaming website in the world, YouTube.

There are sites where I could illicitly download her content to my heart’s content right now. But it takes less effort and time to just watch them on Youtube, so why would I?

It’s not that it’s impossible to pirate Michelle Phan’s content; it’s that noone wants to.

Anonymous Coward says:

Once again the horse iss being led to rink from the piracy fountain, that includes trade publication, college textbooks (many of which have been pirated into oblivion), and a lot else. The implication is that because some indie can market their work, those who prefer traditional protection just have to eat dirt becauase the internet needs to eixst. This doesn’t wash.

With proper copyright protection, the only ones who need a new business model are ISPs and websites that don’t protect copyright. It’s not even established that ContentID will lock anyone out, since there are ways to appeal it. In fact, wouldn’t YouTube be the “copyright troll” if its ContentID system harms innocents?

There is no set of circumstances under which piracy is acceptable, nad lack of enforcement is one such circumstance. Internet companies cannot say it’s “too expensive” to block revenge porn or child pornography, and they should not be able to use that excuse to skirt copyright law in general. Whether it’s Article3 or some alternative, the burden is on those who enable the pirates to stop piracy. The indirect defense of piracy by calling to disable anything that will stop it is not legitimate.

Indies don[‘t need a “new business model.” They need pirates to stop breaking the law. If anything, these articles are proving that pirates do incredible damage to internet companies, to the point where they should be jailed as cyberterrorists.

New business models are fine as long as they are not forced under threat of piracy on people who make rather than take. Thre is definitely a concern among corporations that indies will bypass the middleman by communicating directly with their audience, but even those indies need strong copyright protection, or they wind up feeding the beast.

Part of the reason “legacy copyright” companies appear to be dinosaurs is they’ve had their financial guts ripped out by twenty years of piracy, to the point whre it is not financially feasible to produce new music. This reduces it to hourly label in promoting etc. A musician whose work is taken by a pirate has already “connected” with them, just not been paid. If the work is lousy, or the corporation evil, there is the option to just ignore their work. There is no justification for taking it.

The underlying argument here is that copyright protection is just too difficult for big tech to bother with, and that it, rather than big tech, needs to adjust. I disagree, and the law is still on my side here.

One thing which is true, however, is that with so many creators, the market is flooded to the point where it is very difficult to make money even with strong copyright protection. When people are willing to do professional-level work as a hobby they will dilute the market, just like if someone opens up a restaurant that ives away food because they love to cook, it will be difficult to make money in the restaurant business. These, however, are completely separate concerns.

Much of my work was pirated into oblivion: I’ve had my titles and cover art changed, and the author’s name changed to others, which is actually a criminal offense, for books which have been downloaded tens of thousands of times. Obviously, the work has value or people woldn[‘t go to such great lengths to steal it. When the thieves ar4e mobbed up or based in Russia, suing them is not a practical matter. I will not grab the bait and give specifics here because doing so compromises my anonymity. Even if one doesn’t believe me there are others in the same boat whose existence should at least be acknowledged.

My “new business model” involves patronage and converting books into scripts that are shopped to Hollywood, forcing me to deal with the very “evil corporations” that strong copyright protection would have freed me from. Many whno pirate e-books still go and shell out $24.95 for some book they saw marketed by its author on a talk show on a major network because they believe that author is legit while some internet author is not, even when the mainstream author has literally stolen the work of the indie.

I have seen college textbooks which sell for $59.95 offered for $3-4 on auction sites, which eliminates the resale value that used to make it cheaper to buy from college bookstores, who in turn lose business from those who don’t pay full price to begin with.

Coming out against Article 13 is akin to coming out in favor of a status quo which makes piracy unstoppable. That is not acceptable unless we want to just abolish copyright altogether, something big tech wouldn’t want to do because it would eliminate their piracy edge, as everyone would be able to market everything and marketing and distribution would wind up determining who succeeds rather than quality of content.

Artists will adjust to whichever reality prevails. Whether or not they should have to is the basis for my support of strong copyright protection.

Anonymous Coward says:

Re: Re:

You can have strong copyright, with corporations controlling culture, or weak copyright where everybody can partake of culture. Given where TV has gone, I will take the weak copyright that allows YouTube to flourish. While this may mean few creators make a fortune, it does mean that many more can make a living, and many many more gain the satisfaction of gaining a small audience that they can interact with.

Stephen T. Stone (profile) says:

Re: Re:

Coming out against Article 13 is akin to coming out in favor of a status quo which makes piracy unstoppable.

I have some shocking news for you, sir, and I think you may need to brace yourself for it: Piracy already is unstoppable.

Napster came and went; piracy stayed. Limewire and its ilk came and went; piracy stayed. The Pirate Bay came and went (and came again and went again and so on), as did a number of similar public and private trackers over the years; piracy stayed. If the biggest corporations in the world and the bought-off legislators who made laws favorable to said corporations could not wipe out piracy despite having the ostensible power to do so, what makes you think Article 13 can do the job?

Matthew Cline (profile) says:

Re: Re:

There is no set of circumstances under which piracy is acceptable, nad lack of enforcement is one such circumstance.

Should copying machines be prohibited, because they can be used to pirate printed works? What about burnable CDs/DVDs and USB memory sticks? Those can also be used to pirate materials.

Email with an attached file can be used to distribute pirated material. Should email providers be required to do content ID on attachments to block piracy? If so, why not make this requirement of snail mail? Also, wouldn’t this require that email can’t be encrypted, since that would prevent content ID?

as everyone would be able to market everything and marketing and distribution would wind up determining who succeeds rather than quality of content.

This would be a big surprise to all of those successful Open Source projects.

Scary Devil Monastery (profile) says:

Re: Re:

"Coming out against Article 13 is akin to coming out in favor of a status quo which makes piracy unstoppable."

"Piracy" became unstoppable the very second DARPA created the first up/down link. It remains that way for as long as an internet backbone exists and people can own computers which they can program. No legislation short of prohibiting electronic communication altogether will stop that.

I suggest you stop trying to win the race by dragging the dead horse which keeled over at the gate.

"That is not acceptable unless we want to just abolish copyright altogether…"

Actually sounds like a very good idea because that way we could start focusing on building the internet further rather than try to dismantle it into a pair of cups and a string, the way you want to.

"…something big tech wouldn’t want to do because it would eliminate their piracy edge…"

Oh, you crack me up. Big Tech doesn’t give two hoots about "piracy" nor do they have or gain an "edge" from it. This is where you just turned into a medieval priest blaming the latest famine on the lack of churchgoers.

In fact, in case you missed the memo, the last time you could even claim "Big Tech" had an even tangential interest in piracy would be in the early 80’s.

These days Google’s "interest" in piracy – i assume you mean Google, as that’s where your big hate-boner keeps pointing – isn’t even akin to a pair of fuzzy dice they basically forgot to take off the rear-view mirror. It’s not a part of their business, nor do they require it to work.

Except in your personal little world, I assume, where factual reality holds no writ.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"It became unstoppable as soon as copying technology made it into the hands of the general public, open reel tape recorders, cassette recorders, etc. "Piracy" has it roots in the good old sneaker net."

I’d argue that the "roots" of piracy can be tracked down to when Gutenberg invented the printing press. The furor and uproar around that invention fully rivals what we’re seeing now.

And ever since 1451 we’ve seen a repeat performance of the same tired old conflict, where the vested interest in power at the time tries to control who gets to copy and distribute information using protectionist law backed by doomsaying about how all those scribes will be out of a job…

And it always boils down to a cadre of fanatics trying to hold back the ocean with pails and shovels until the rising tide leaves them quietly drowned and forgotten. Article 13, SOPA, ACTA, CETA, TPP, the Berne convention to begin with…no legislation proposed or carried out will be able to enforce and secure copyright. Nothing will, for as long as technology in general is allowed to exist.

And the more savvy copyright enforcers know this full well and are in the game merely to try to keep getting highly paid for tilting ineffectively at windmills while harping to artists about how not paying the lawyer and lobbyist will have them all starving in the streets.

bobob says:

Even if “big rock stars” couldn’t make “big” money, that would not be an argument. Big rock stars who make big money did so by virtue of a system that excluded the many in favor of a few that record companies thought were marketable in some way. (Seriously, do “bands like n’sync count as musicians?) Even some of the very successful real bands ended up being screwed by the big recording business, (e.g., Badfinger and many others).

The internet has made it possible for many more musicians to work as musicians and be paid as if it were a regular job like the jobs the rest of the world has. It’s now possible for there to be many more working musicians as opposed to a lot of starving musicians and a few big rock stars.

Anonymous Coward says:

I propose a general pricipal ,any law that is lobbied
for by legacy companys like the riaa,mpaa, disney, film companys or record companys is likely to be bad for
indie artists, small creators and the general public.
If you look back in the 60,70,s 80s, it was well
known that even big artist,s were ripped off,
eg sign this dodgy contract if you want a record deal.give up the rights to your master recordings etc
The filter on youtube to take down content is there because youtube was maybe at risk of being shut down by record companys taking legal action for copyright
infringement on music uploads .
IF youtube was not owned by a big company which can afford to build a complex audio/video filter and dmca takedown process it would not
exist today.
The internet has paid it possible for 1000, s of
small indie musicians to make a living without
being under the control of the big music companys .

Scary Devil Monastery (profile) says:

Re: Re:

"t’s sublimely ironic that copyright, originally conceived to protect authors from publishers, has been twisted by centuries of lobbying to be the exact opposite."


Because the original concept of copyright was always about the protection of the publishers, the authors be hanged.

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