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EFFector - Volume 15, Issue 12 - Thank Philips for Standing Up to Hollywood

EFFector       Vol. 15, No. 12,       May 3rd, 2002     editors@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
In the 212th Issue of EFFector:

    * Thank Philips for Standing Up to Hollywood
    *
    * EFF Releases DMCA Three Year Report Card
    * Court Orders ReplayTV to Spy on Customers for Movie Studios
    * EFF Thanks Google!
EFF News Flash

For more information on EFF activities & alerts: http://www.eff.org/

To join EFF or make an additional donation:
  http://www.eff.org/support/
EFF is a member-supported nonprofit. Please sign up as a member today!
ALERT: Thank Philips for Standing Up to Hollywood
Philips CEO Rejects Entertainment-Industry Technology Veto

Issued 05/03/02
Expires 05/17/02

Introduction:

As Hollywood's Broadcast Protection Discussion Group (BPDG) rushes to establish a laundry-list of 
mandatory and forbidden "features" for digital television devices -- including PCs -- one company has 
called on Congress to expose the process to the "sunlight of government." Philips North America CEO 
Lawrence J. Blanford broke ranks with the other BPDG participants when he testified before Senator 
Hollings' Commerce committee on April 25th, blasting the process, calling its direction "not in the 
interest of sound public policy, not in the interest of the affected industries and certainly not in the 
interest of the consumer."

The BPDG mandate is meant to be the kinder, gentler face of Hollywood's bid to win a veto over new 
technology, a "consensus" involving all interested parties (except, of course, the public, the press and 
the small entrepreneurial companies whose technology would be banned under a BPDG regime). While the whole 
world has been blasting Senator Hollings' Consumer Broadband and Digital Television Promotion Act 
(CBDTPA), the secretive BPDG group have been establishing a standard that bans free and open source 
television software and leaves a veto on new technologies in the hands of the studios.

The end result will be a marketplace full of devices with components that have been effectively specified 
by Hollywood; a world where "tamper-friendly" software licensed under free/open-source licenses cannot 
interact with commodity PC components; a world startlingly like the one promised by the CBDTPA.

Mr. Blanford's brave stand marks the first public indication that the BPDG process is anything but a 
consensus. As Philips stands up to Hollywood's self-centered assertion that only they are qualified to 
assess the value of new technology, we need to recognize the risks Philips is taking on our behalf.

What YOU Can Do Now:

* Contact your legislators in Congress and tell them that you oppose technology mandates (see the Links 
section below for details on EFF's campaigns to oppose the Consumer Broadband and Digital Television 
Promotion Act [CBDTPA] and the Broadcast Protection Discussion Group [BDPG], and to repeal the Digital 
Millennium Copyright Act [DMCA]). For information on how to contact your legislators and other government 
officials, see EFF's "Contacting Congress and Other Policymakers" guide at:
http://www.eff.org/congress.html

* Send Philips North America CEO Lawrence J. Blanford a letter thanking him for rejecting the sham 
consensus of the BPDG and standing up to Hollywood's outrageous demand for a veto on new technologies.

http://www.eff.org/support/

Sample Letter:

Here's a template you can use to send your thank-you notes to Philips. Feel free to crib from it or to 
improvise. Note that comments in your own words are usually most effective. Send to:

Lawrence J. Blanford
CEO, Philips North America
64 Permiter Center East
Atlanta, GA
30346

larry.blanford@philips.com, CEO, Philips North America
cc: katrina.blauvelt@philips.com, Public Relations Director
cc: tom.patton@philips.com, VP of Government Relations

fax: 770.821.2250

Dear Mr. Blanford,

I am writing today to thank you for your brave words before Senator Hollings on April 25. The Broadcast 
Protection Discussion Group raises the spectre of Internet piracy and expects us to grant Hollywood a veto 
over new technologies. The film studios that BusinessWeek called "the most change-resistant industry in 
America" cannot and should not run your business for you. You should be free to bring new, innovative 
digital television products to market without depending on Hollywood's goodwill.

The Betamax decision established the principle that technology companies are free to make any device with 
substantially non-infringing uses -- a principle that holds that it would be improper to punish customers 
for what they *might* do with a technology. It's this principle that permits you to manufacture such 
innovative devices as the TiVo PVR and future devices like DVD recorders.

The law is on your side, sir, and so am I. Hollywood does not deserve oversight of your commercial 
activity. Your freedom to innovate and my freedom to use devices to enhance my life are inextricably bound 
together. I am not a pirate, no matter what Hollywood's suspicious executives say, and I deserve better 
treatment than they would afford me.

Thank you for speaking on my behalf before Congress. Please continue to uphold my interests, fighting all 
attempts to mandate "standards" that presume my guilt.

Sincerely,

[Your name; include full address for maximum effectiveness]

Tips:

Please remember to be polite but firm. Ranting, swearing, or lack of clear focus and resolve will not make 
a good impression. Try to make it brief (1 page or less written, or a few sentences spoken) and clear, 
without getting into nitpicky details. Re-casting the letter in your own words will be more effective than 
copy-pasting our sample.

Activists Around the World

This alert is primarily for U.S. residents. However, this issue is of importance globally, so keep an eye 
out in your own jurisdiction for related matters you can act on. Many countries are considering 
legislation like the US DMCA and SSSCA/CBDTPA.

Background:

What Were They Thinking?

On September 7, 2001, the working text of a proposed bill leaked from Senator Ernest "Fritz" Hollings' (D. 
SC) office, raising a tide of bilious outrage from all corners of the Internet. The bill, called the 
Security Systems Standards and Certification Act (SSSCA), would have required every "digital media 
technology" to be regulated by bureaucrats who would take their marching orders from the entertainment 
industry, taking up to a year to grant permission for each new method and technology that the computer and 
consumer electronics industries wished to bring to market.

A few short weeks later, the Motion Picture Association of America's (MPAA) Copy Protection Technical 
Working Group (CPTWG) chartered a new sub-group, called the Broadcast Protection Discussion Group (BPDG). 
The BPDG's mission was to set out the forbidden and mandatory "features" of all new digital television 
devices and technologies, in order to prevent unauthorized redistribution, such as Internet 
redistribution. The BPDG extended invitations to all the major technology players from the software, 
hardware, and consumer electronics industries to participate in setting the standard.

The message was clear to industry insiders who understood that Senator Hollings takes his marching orders 
from the entertainment giants who fill his campaign-contribution coffers:

"Join the consensus group and get a voice in the standard, or wait for Our Man in Congress to cut your 
orders -- one way or another, your time of freely choosing what products you bring to market is at an 
end."

So they joined. Intel, Philips, Matsushita, Apple, Microsoft -- the technology companies with the most to 
lose from a mandate, choosing the lesser of two evils.

Through the fall and the winter, the process was relatively painless. The Electronic Frontier Foundation 
sent representatives to the BPDG meetings to document and protest against the conspiracy to deprive the 
public of fair use, to put innovation in the hands of Hollywood, and to ban free/open source software. The 
group set out some easy principles:

* Digital TV signals would carry a label that distinguished freely copyable material from material with 
copying restrictions.

* Devices that could touch those signals would be required to look for the mark (or assume its presence) 
and respond to it in some way.

* Approved devices would be tamper-resistant, difficult to be modified by "consumers" (Hollywood-speak for 
"customers") -- this makes software licensed under free-software/open-source licenses illegal, of course, 
since those licenses *encourage* "consumers" to modify the technology.

* Approved devices would be constrained in what sort of recording and output methods they could employ, so 
that only "secure" channels and recording options would be available to a received signal.

* There would be some process by which new outputs and recording methods would be chosen.

The Other Shoe Drops

As spring unfolded, Senator Hollings actually introduced the SSSCA under a new name: the Consumer 
Broadband and Digital Television Promotion Act (CPDTPA). The technologists at the BPDG got the message, 
just as the group was turning its attention to the difficult issues before it:

* Which recording and output technologies would be approved out of the gate

* What process would be used to approve new technologies

* How technologies whose security had been compromised in the market would be addressed

This is where things got ugly. At the EFF's urging, representatives of other civil liberties and consumer 
rights groups began to attend, and the press began to take notice of the BPDG conspiracy.

Two cliques of technologists, called 5C (five companies consisting of Intel, Hitachi, Matsushita, Sony, 
and Toshiba) and 4C (four companies consisting of Intel, IBM, Toshiba, and Matsushita) had ready-to-market 
"secure" technologies that had the features that Hollywood demanded (and that no sane consumer would ever 
voluntarily buy). It became clear that these cliques had established a back-room deal with the MPAA to 
include these technologies on the list of approved outputs and recording methods from the get-go.

This infuriated Philips, which had seen a great opportunity on the horizon to market DVD recorders that 
could be used to store video from over-the-air, camcorders, and computers, and played back on existing and 
new DVD players. Since the BPDG existed to stop *Internet* redistribution, DVD recorders should be on the 
white-list, too, right?

Wrong. The MPAA companies pointed out that the BPDG charter required the group to stop unauthorized 
redistribution, *such as* Internet redistribution -- the Philips technology would need to institute some 
means of regulating duplication, even if that meant curtailing non-infringing uses, like duplicating home 
movies.

The plot thickened. The MPAA and the 5C companies issued proposals for the approval process for new 
technology that had no objective criteria -- they did not set out some set of technical characteristics 
that forthcoming technologies must meet if they were to be legal.

Instead, the MPAA proposal included only *subjective* criteria, such as:

A technology may be added to Table A by meeting any one of the following criteria:

(1) 3 Major Studios and/or Major Television Broadcast Groups (of which at least 2 must be Major Studios) 
use or approve the technology;

(2) 10 Major Device Manufacturers (including software vendors) have licensed the technology and 2 Major 
Studios use or approve the technology.

In other words, new technologies will only be legal if *we* say so.

Finally, the MPAA reintroduced the idea of revocability, setting out terms that would require any device 
that could be remotely disabled to have this "feature" enabled. The idea was that if your model of VCR was 
found to have a security hole, Hollywood could push a button and shut down every one of the "compromised" 
devices in the world -- reaching into *your* living room and destroying your lawfully purchased property.

Philips Backs Out

Philips has had enough. Mr. Blanford's April 25th testimony (reported at 
http://www.newsalert.com/bin/story?StoryId=CpmD_qbWbqvrusdaYmq) eloquently pleads the consumer electronics 
giant's case: Hollywood wants a veto over our technology. This is bad for us, bad for our customers and 
bad for the country.

Let's hope that Mr. Blanford's bravery serves as an example to other captive technologists at the BPDG. 
Perhaps our combined appreciation for Philips will be enough to convince Apple, IBM, Intel, Microsoft and 
others to stop selling our rights out from under us.

The CBDTPA in Sheep's Clothing

The BPDG mandate extends into general-purpose personal computers. Computers that have hardware peripherals 
that permit them to tune, demodulate, display, store or manipulate digital television must not permit the 
digital TV signal to come into contact with non-approved technologies.

This leaves PC vendors with two choices:

* Include two parallel sets of storage, data and display technologies and ensure that digital television 
signals only interact with the "approved" components

* Include only one set of technologies -- "approved" technologies with Hollywood's seal of approval on 
them -- and restrict what you can do with your computer according to the rules set out in the BPDG mandate

The future is at risk. The entertainment industry's response to every new technology from the player piano 
to the radio to the television to the Internet has been dread and loathing, chicken-little hysteria about 
the certain doom that new technologies will rain down on their business. Time and again, Hollywood has 
demonstrated its temperamental unsuitability to sit in judgement over innovation. We cannot leave our 
technical destiny in their hands -- neither through broad laws like the CBDTPA, nor through mandates like 
the BPDG, which achieve the same end through different means.

Links:

Philips North America:
http://www.gateway.com/home/deals/offers/music/dmz.shtml

Report of Philips CEO Lawrence J. Blanford's testimony:
http://www.newsalert.com/bin/story?StoryId=CpmD_qbWbqvrusdaYmq

EFF Weblog covering the Broadcast Protection Discussion Group:
http://bpdg.blogs.eff.org/

For more information on the future of digital television, see:
http://www.eff.org/IP/Video/HDTV/

Full text of CBDTPA (bill S. 2048):
http://www.eff.org/IP/SSSCA_CBDTPA/20020321_s2048_cbdtpa_bill.pdf

For more information about CBDTPA (and its older "parent", SSSCA), see:
http://www.eff.org/IP/SSSCA_CBDTPA/

EFF's "Frequently Asked Questions (and Answers) About Fair Use":
http://www.eff.org/IP/eff_fair_use_faq.html

Declan McCullagh Wired News article on CBDTPA, "What Hollings' Bill Would Do":
http://www.wired.com/news/politics/0,1283,51275,00.html

EFF alert in support of Intel's Leslie Vadasz's statements on technology mandates:
http://www.eff.org/IP/SSSCA_CBDTPA/20020308_eff_sssca_alert.html

CAFE Campaign:

This drive to support Philips for its brave stand on consumer rights is part of a larger campaign to 
highlight intellectual property industry assaults against the public's fair use rights, and what you can 
do about it.

Check the EFF Campaign for Audivisual Free Expression (CAFE) website regularly for additional alerts and 
news:
http://www.eff.org/cafe/

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights 
in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to 
support free expression, privacy, and openness in the information society. EFF is a member-supported 
organization and maintains one of the most linked-to websites in the world:
http://www.eff.org

Contacts:

Cory Doctorow, EFF Outreach Coordinator
cory@eff.org
+1 415 436 9333 x106

Seth Schoen, EFF Staff Technologist
schoen@eff.org
+1 415 436 9333 x107

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EFF Releases DMCA Three Year Report Card
Unintended Consequences: Rights Undermined

For immediate release: May 3, 2002

San Francisco ­ The Electronic Frontier Foundation (EFF) has released a report collecting cases where 
abuses of the Digital Millennium Copyright Act (DMCA) undermined fair use, free expression and scientific 
research in the three years since its passage.

The report, titled "Unintended Consquences: Three Years under the DMCA," collects reported incidents 
involving the controversial anti-circumvention provisions of the DMCA. These provisions prohibit the 
bypassing of technological restrictions intended to protect copyrighted works. In pressing Congress for 
these provisions in 1998, the copyright industries claimed that the law was needed "to thwart pirates." In 
the three years following the DMCA¹s passage, however, the anti-circumvention provisions have instead been 
used by copyright owners to stifle a range of legitimate, non-copyright-infringing activities.

The report describes how the anti-circumvention provisions have so far been used to: (1) chill free speech 
and legitimate scientific research; (2) undermine the public¹s fair use rights; and (3) block legitimate 
competition and technological innovation. The EFF report represents the first time all the reported abuses 
of the DMCA have been gathered together in one resource.

"The DMCA went too far," said EFF's Senior Intellectual Property Attorney, Fred von Lohmann. "Fair use, 
free expression, and legitimate science have all suffered collateral damage in Hollywood¹s war on piracy. 
How many more scientists, hobbyists, and legitimate competitors have to be threatened or sued before we 
all admit that the DMCA is not working?"

EFF will update the report as new cases arise. The current report is located at:
http://www.eff.org/IP/DMCA/20020503_dmca_consequences.pdf

Links:

EFF's DMCA archive:
http://www.eff.org/IP/DMCA/

EFF archive of DMCA case materials, including:
the Felten case:
http://www.eff.org/IP/DMCA/Felten_v_RIAA/

the 2600 case:
http://www.eff.org/IP/DMCA/MPAA_DVD_cases/

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights 
in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to 
support free expression, privacy, and openness in the information society. EFF is a member-supported 
organization and maintains one of the most linked-to websites in the world: http://www.eff.org

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Court Orders ReplayTV to Spy on Customers for Movie Studios
Entertainment Industry Demands Massive Privacy Invasion

A court has ordered ReplayTV to rewrite its personal video recorder software to include spyware that will 
capture every click from every customer's remote, gathering personal data detailing what each ReplayTV 
owner watches, skips, and shares over the Internet. Once in place, the data gathered with this tool will 
be sent to Hollywood studios and TV networks for use as ammunition in a pending suit against ReplayTV 
concerning home recording rights. The court has determined that providing this information to the 
plaintiffs is more important than safeguarding the privacy rights of lawful ReplayTV owners, despite the 
absence of any ruling or injunction against ReplayTV.

The suit began last October when several film and TV studios sued ReplayTV, charging that the company 
engaged in contributory and vicarious infringment when it shipped the Replay 4000, a device that allows 
individuals to record and share television programs and to easily skip commercials. ReplayTV users 
exercise fair use rights to home recording, a legal principle established in the watershed 1984 Betamax 
Supreme Court case when Hollywood unsuccessfully attempted to outlaw VCRs under the same legal theory -- 
that home recording was a violation of copyright.

In a discovery motion, the studios demanded that ReplayTV turn over all of its information about end-user 
activities, including lists of what individuals are recording and sharing, and what commercials they skip 
past. When ReplayTV answered that its does not collect personal information about its customers, 
Magistrate Eick ordered ReplayTV to change its software within 60 days to accommodate the studios' demand. 
ReplayTV requested that the spyware be implemented on an "opt-in" basis, so that its customers could 
choose whether their personal habits would be gathered and turned over to the studios, but the Magistrate 
denied the request.

Here is the relevant text from the court order: "[ReplayTV must] take the steps necessary to use their 
broadband connections with ReplayTV 4000 customers to gather all available information about how users of 
the ReplayTV employ the devices, including all available information about what works are copied, stored, 
viewed with commercials omitted, or distributed to third parties with the ReplayTV 4000, when each of 
those events took place, and the like."

This is an unprecedented turn of affairs -- the courts *requiring* spyware in technology, without any 
regard for users' privacy rights. Of course, the court is ordering this invasion at the behest of the 
entertainment industry. These are the same entertainment companies that are demanding a veto over new 
technology through bills like the Consumer Broadband and Digital Television Promotion Act (CBDTPA) and 
mandates like the Broadcast Protection Discussion Group (BPDG) "standard." If there was any doubt 
remaining that Hollywood's disregard for the public makes it unfit to govern new technology, then surely 
this outrage will eradicate it.

Links:

The San Jose Mercury story on this issue:
http://www.siliconvalley.com/mld/siliconvalley/3186191.htm

Slashdot on the San Jose Mercuiry story:
http://slashdot.org/article.pl?sid=02/05/03/0425240

Metafilter on the San Jose Mercury story:
http://www.metafilter.com/mefi/16864

SonicBlue's product site for the ReplayTV 4000:
http://www.sonicblue.com/video/replaytv/default.asp

The ReplayTV Technological Emmy for the Advancement of Television (press-release)
http://www.sonicblue.com/company/press.asp?ID=501

EFF Weblog covering the Broadcast Protection Discussion Group:
http://bpdg.blogs.eff.org/

For more information on the future of digital television, see:
http://www.eff.org/IP/Video/HDTV/

Full text of CBDTPA (bill S. 2048):
http://www.eff.org/IP/SSSCA_CBDTPA/20020321_s2048_cbdtpa_bill.pdf

For more information about CBDTPA (and its older "parent," SSSCA), see:
http://www.eff.org/IP/SSSCA_CBDTPA/

Contact:

Cory Doctorow, EFF Outreach Coordinator
cory@eff.org
+1 415-436-9333 x106

Fred von Lohmann, EFF Senior Intellectual Property Atty.
fred@eff.org
+1 415-436-9333 x123

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EFF Thanks Google

In early March, popular search engine company Google proved its commitment to its users by opting to 
provide information about attempts at censorship to EFF's Chilling Effects Clearinghouse.

The Church of Scientology (CoS) threatened Google with a lawsuit, citing violation of the Digital 
Millenium Copyright Act (DMCA), because certain Google searches provided links to a site that opposes CoS. 
Operation Clambake (www.xenu.net), [link] located in Norway, posts some documents that CoS alleges violate 
their U.S. copyrights. The xenu.net site came up under Google searches for "scientology," along with CoS 
copyrighted leaflets in other locations on the xenu.net site. CoS, which has often been criticized for 
filing lawsuits to silence its critics, sent a cease and desist letter [make word "letter" a link to the 
letter, http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=232] to Google demanding that they 
remove their link to the xenu.net site, which, according to CoS lawyers, "contains literally hundreds of 
our client's copyrighted works and federally registered trademarks."

Google removed some of the links in order to comply with the DMCA. Google also decided to use the incident 
to educate other about the law by turning the CoS letter, along with all other cease and desist notices it 
receives, to the EFF-sponsored Chilling Effects Clearinghouse (www.chillingeffects.org) [link] site. The 
previous location of the leaflet links now points to a new Google page explaining the removal in response 
to DMCA-related complaints. [link "a new Google page" to http://www.google.com/dmca.html]

A joint project of EFF and the Harvard, Stanford, Berkeley, and University of San Francisco law school 
clinics, the Chilling Effects Clearinghouse catalogues cease and desist notices and presents relevant 
legal information to help recipients resist the chilling of legitimate activities, as well as understand 
when their activities are unlawful. "We're very happy Google is providing this vital information to 
Chilling Effects," stated EFF's legal director, Cindy Cohn. "We hope this will inspire more companies to 
help us track the number and types of cease and desist letters sent, as well as give greatly needed legal 
information to Internet users."

The original premise behind Google was to create the largest collection of web links, someday possibly 
reaching a googol (ten to the hundredth) of pages. Google's search technology mines the web, collecting 
and ranking all pages objectively and without censorship. This type of threat seriously undermines 
Google's efforts to provide a view of the web judged by relevance and popularity only; therefore, it put 
Google in a tough spot.

Links:

New York Times article, "Google Runs into Copyright Dispute":
http://www.nytimes.com/2002/04/22/technology/ebusiness/22NECO.html

Chilling Effects article, "Google Asked to Delist Scientology Critics":
http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=232

Google DMCA page:
http://www.google.com/dmca.html

Internet.com article, "Google Airs Scientology Infringement Demand":
http://boston.internet.com/briefs/article/0,1928,2371_1009321,00.html

About the Electronic Frontier Foundation:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights 
in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to 
support free expression, privacy, and openness in the information society. EFF is a member-supported 
organization and maintains one of the most linked-to websites in the world: http://www.eff.org/

About Google Inc.:

With the largest index of websites available on the World Wide Web and the industry's most advanced search 
technology, Google Inc. delivers the fastest and easiest way to find relevant information on the Internet. 
Google's technological innovations have earned the company numerous industry awards and citations, 
including two Webby Awards; two WIRED magazine Readers Raves Awards; Best Internet Innovation and 
Technical Excellence Award from PC Magazine; Best Search Engine on the Internet from Yahoo! Internet Life; 
Top Ten Best Cybertech from TIME magazine; and Editor's Pick from CNET. A growing number of companies 
worldwide, including Yahoo! and its international properties, Sony Corporation and its global affiliates, 
AOL/Netscape, and Cisco Systems, rely on Google to power search on their websites. A privately held 
company based in Mountain View, Calif., Google's investors include Kleiner Perkins Caufield & Byers and 
Sequoia Capital. More information about Google can be found on the Google site at http://www.google.com.

About the Chilling Effects Clearinghouse:

The Chilling Effects Clearinghouse is a unique collaboration among law school clinics and the Electronic 
Frontier Foundation. Conceived and developed at the Berkman Center for Internet & Society by Berkman 
Fellow Wendy Seltzer, the project is now supported by clinical programs at Harvard, Berkeley, Stanford, 
University of San Francisco, and University of Maine law schools and the EFF.

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EFF News Flash

News on the Electronic Liberty Front that you should know about even though EFF is not directly involved. 
See the latest story below:

BarkingDogs.org is given cease and desist order by Dallas Morning News over deep linking. See:
http://www.BarkingDogs.org

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Editor:
Katina Bishop, EFF Education & Offline Activism Director

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