UK public gallery threatens Wikimedian

NPG claims

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U.K. National Portrait Gallery threatens U.S. citizen with legal action over Wikimedia images

While the message published by Derrick Coetzee is not a formal letter of claim, it does note four specific grievances of the National Portrait Gallery, in varying degrees of precision: infringement of copyright, infringement of database right, unlawful circumvention of technical measures for restricting image use and breach of contract. According to the message, a formal letter of claim has been prepared and Coetzee will be sued unless all the images he uploaded are removed by July 20.

Infringement of copyright

Following the traditional view of British art galleries, the National Portrait Gallery claims that it has copyright over the digitized images that it publishes on its website:

we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works…

The NPG asserts that the alleged infringement occurred in the UK, as its servers are located there: it also asserts that images hosted by Wikimedia "are clearly directed at (amongst others) UK users". The NPG also claims to have contacted the Wikimedia Foundation over the issue, but to have been "ignored". On the Foundation-l mailing list, Gregory Maxwell characterized one "contact", from April 2009:

[It] was made by a commercial partner (in the US) of the NPG, and was the typically legally uninformed nonsense that comes in often enough to have a boilerplate reply. They were given the standard "Wikimedia and it's servers are based in the US. Under US law such images are public domain per Bridgeman Art Library v. Corel Corp. Therefore no permission is required to use them." response.

Maxwell also noted that "a copyright complaint by the NPG in 2006 where the initial response from our side was 'What we're doing is permitted by US law' was satisfactorily resolved by providing attribution and back-links on the image page." A representative of the NPG stated in an email at the time that the NPG would "allow Wikipedia to use the images available on our site (www.npg.org.uk), providing there is a direct link from the image displayed on Wikipedia to the page it appears on in the NPG website." However, they also stated that such an agreement would be "dependent on Wikipedia displaying correct copyright information" and that it would be "essential that the image was not offered free-of-charge to anyone wishing to use it (under a GNUDFL [sic], Copyleft or similar licence), and that anyone wanting a copy be directed to the NPG website."

Infringement of database right

Database right is a concept in European Union law that is fully applicable in the UK since 1998.^[6] Similar rights have been enacted in some non-EU countries, but not in the United States. The right aims to give limited protection to collections of material that would not otherwise be eligible for copyright.^[7] In particular, the owner of the database right can prevent the extraction of "all or a substantial part of the contents", regardless of whether the database is made available to the public or not,^[8] and the National Portrait Gallery claims that the 3,300 images constitute a "substantial part" of its database of 120,000 images.

To qualify for database right, there must have been a "substantial investment in either the obtaining, verifying or presenting the contents".^[9] However, the European Court of Justice (ECJ) has ruled that the "substantial investment" must have gone into the specific preparation of the database, excluding, for example, listings of sports fixtures or runners in a horse race:^[10]

the expression ‘investment in … the obtaining … of the contents’ of a database […] does not cover the resources used for the creation of materials which make up the contents of a database.^[11]

There are also judgments in other EU countries (apart from the UK) that have denied database right to databases produced by public bodies in the course of their normal functions:^[12] the National Portrait Gallery is a public body charged, among other things, to "generally promote the public’s enjoyment and understanding of portraiture of British persons and British history through portraiture both by means of [its] collection and by such other means as [it] consider[s] appropriate."^[13]

Unlawful circumvention

The NPG website has (or had, Wikimedian Robert Rohde reported that it is currently deactivated) a software feature called "Zoomify", which allows visitors to zoom in on an area of a picture: effectively, to get one screen's-worth of a higher resolution image file. Obviously, it is then possible to stitch the various "screen's-worths" back together to recreate a high-resolution image of the entire portrait, as many patient Wikimedians have done in the past; the images were initially captured and stitched manually, but more recently Wikipedians found automated ways to recover full images through Zoomify.

The NPG's lawyers claim that the purpose of using Zoomify was so "that an entire high resolution image is never made available to a user". However, a FAQ on Zoomify, Inc.'s website states: "we provide Zoomify as a viewing solution and not an image security system."

Around the time that the NPG implemented the Zoomify feature, they also began embedding hidden digital watermarks in the images on their site. The watermarks include the NPG's Digimark ID and a notice stating "Restricted Use, Do Not Copy".^[14]

Breach of contract

The breach of contract claim is the least developed in the message published by Derrick Coetzee. The NPG states that there are clear links from each of the image pages on its website which, if followed, make it clear that they prohibit copying without permission. The NPG's lawyers go on to claim that Coetzee should have known that his copying was "in direct contravention of the clear rules" and that this amounts to a breach of contract.

Reactions

News of the legal threats to Derrick Coetzee has generated lengthy discussions on the Commons Village Pump and at the Administrators' noticeboard on Wikipedia. It was also quickly picked up on the blogosphere and on Slashdot. As of Sunday night, July 12, it has not featured in any "mainstream" media, although Wikimedia Norway announced that they had notified local media.

Concerning the Wikimedia Foundation itself, general counsel Mike Godwin said "We're in contact with Derrick. We're looking at ways we may be able to help." Godwin also stated that "while discussing the general theory of copyright as it relates to this case is fine, I don't think it's a good idea to talk about specific responses here just yet." Executive director of the Foundation Sue Gardner stated "we have no plans to send out a press release on this issue." Other Wikimedians on the mailing list and elsewhere have urged restraint on the part of the community, in order to preserve the possibility of a mutually acceptable agreement with the NPG and avoid exacerbating Derrick Coetzee's legal situation.

On Wikimedia Commons, a template used to provide links to National Portrait Gallery sources has been updated to include the Copyright claims disclaimer, which explains the nature of "sweat of the brow" copyright claims and warns users that "You are solely responsible for ensuring that you do not infringe someone else's copyright." On July 12, citing potential conflict of interest, Larry Pieniazek, a Wikimedia steward, temporarily removed Derrick Coetzee's administrator status on Wikimedia Commons, so preventing him from deleting any images. Coetzee responded on his Commons talk page, stating "No insult is taken and I understand the need for the project to take this action under the circumstances."

Precedents for cooperation

Friction between Wikimedia projects and other online content suppliers is nothing new, but such disputes are usually solved amicably without the need for threats of court action. Wikimedia Norway described how a similar (though less acrimonious) argument with Galleri NOR was resolved through respectful discussion once the public image library realised that 60–80% of the traffic on its website was coming from Wikimedia Commons. A recent Signpost article described an agreement between WikiProject Chemicals and the Chemical Abstracts Service over access to the latter's database.

While the New York Public Library has also donated many thousands of images, perhaps the most significant recent collaboration was announced last March, with an agreement between Wikimedia Germany and the Deutsche Fotothek which will result in 250,000 images being uploaded to Wikimedia Commons. The Deutsche Fotothek hopes that the greater diffusion of these images will help to put them in context, with any additional information aiding its own curational work.

For the time being, and despite having instructed lawyers, the National Portrait Gallery states that it "remains willing to enter into a dialogue with the Wikimedia Foundation to discuss terms upon which low-resolution images of paintings in its collection can be made available on the Wikipedia website".

References

^ The NPG online collection claims to have 120,000 portraits, but many of these are still under copyright in the original.
^ Jimmy Wales: Ten Things That Will Be Free. Wikimania 2005 keynote, August 2005. Section 5: Free the Art!. Video (164MB, 1:07:51 / section starts at 0:11:40)
^ University of London Press v University Tutorial Press [1916] 2 Ch 601 at 610 (Peterson J).
^ See, for example, the Museums Copyright Group.
^ See, for example, Walter v Lane [1900] AC 539 (copyright in a speech belongs to the reporter who wrote it down), University of London Press v University Tutorial Press [1916] 2 Ch 209 (copyright in standard examination questions).
^ Copyright and Rights in Databases Regulations 1997 No. 3032.
^ Recitals 1, 4–8, 14–17, 41–52 & 60, Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJEC L77 of 27/03/1996 pp. 20–28. See also Database Directive.
^ r. 16, Copyright and Rights in Databases Regulations 1997.
^ r. 13, Copyright and Rights in Databases Regulations 1997.
^ Fixtures Marketing Ltd v. Oy Veikkaus Ab (Case C-46/02, judgment 9 November 2004); The British Horseracing Board Ltd and Others v. William Hill Organisation Ltd (Case C-203/02, judgment 9 November 2004); Fixtures Marketing Limited v. AB Svenska Spel (Case C-338/02, judgment 9 November 2004); Fixtures Marketing Ltd v. Organismos prognostikon agonon podosfairou AE -“OPAP” (Case C-444/02, judgment 9 November 2004).
^ para. 49, Fixtures Marketing Ltd v. Oy Veikkaus Ab.
^ See, for example, Republic of Austria v. Compass Publishing Company, Supreme Court of Austria, 9 April 2002 (official company register); De Telegraaf v. NOS and HMG, Nederlandse mededingingsautoriteit, NMa, 10 September 1998 (programme listings of the public television networks).
^ s. 2(3)(d), Museums and Galleries Act 1992 c. 44.
^ National Portrait Gallery UK embedding hidden watermarks on Commons Village Pump.

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In this issue

13 July 2009 (all comments)

Copyright threat

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== Coverage ==

FYI, I'm maintaining a list of external websites covering this event. Also, if you discuss the circumvention angle, I encourage you to consider the counterargument raised by the Zoomify FAQ. ("we provide Zoomify as a viewing solution and not an image security system."). Dcoetzee 13:24, 12 July 2009 (UTC)[reply]

If there's no copyright, there's no circumvention ;) Physchim62 (talk) 20:01, 12 July 2009 (UTC)[reply]

Thanks. We'll definitely note the Zoomify FAQ bit, and your list will be handy too.--ragesoss (talk) 00:49, 13 July 2009 (UTC)[reply]

Other related resources

U.K. law

Actually, as now to be found in Bridgeman Art Library v. Corel Corp., there is relevant U.K. case law whose decisions address some of the issues, including Neuberger J in Antiquesportfolio.com v Rodney Fitch & Co. and Oliver J in Interlego v Tyco Industries. There is also legal opinion from Hugh Laddie, Justice Laddie, in The Modern Law of Copyright (London: Butterworths, 2000). Uncle G (talk) 16:02, 12 July 2009 (UTC)[reply]

Even Farrers admit that there is no direct precedent in English law, so it seems pointless speculating in that direction. Physchim62 (talk) 19:59, 12 July 2009 (UTC)[reply]
- This is not speculation. Read and learn. Uncle G (talk) 22:34, 12 July 2009 (UTC)[reply]

Note about initial complaint

Currently the article somewhat mischaracterizes the initial complaint to WMF in April - the complaint that Farrer & Co. is referring to is probably not the same as the complaint issued by their U.S. partner. However, since these complaints were directed at WMF and WMF has elected not to disclose any further details I am hesitant to say more. [editing anonymously due to technical issues] Dcoetzee 01:05, 13 July 2009 (UTC)[reply]

Good point, I wondered the same myself. Otherwise, Farrers' remarks don't quite seem to fit. Greg's comments are, well, typical Greg really! I've been trying to add rather than subtract (and I must get some sleep soon), but I hope someone will come along and copy edit all of this! I will say, as someone who was closely involved in the CAS negotiations (and not always helpfully), that these collaborations need individuals to bring them to fruition, not corporation talking to corporation. Physchim62 (talk) 02:38, 13 July 2009 (UTC)[reply]

Note about another collaboration

Since there's a section of collaboration, I wanted to note that I've participated in at least two positive collaborations with collectors - the most notable is my collaboration with the New York Public Library, in which they cooperated in supplying information on over 84,000 vintage public domain stereographic photos from their collection for upload. These images are still in the process of being uploaded and are found in Commons:Category:Robert N. Dennis collection of stereoscopic views. Dcoetzee 02:51, 13 July 2009 (UTC)[reply]

Is there a page, or press release or something which describes this collaboration? Physchim62 (talk) 14:23, 13 July 2009 (UTC)[reply]

The closest thing is Commons:Batch_uploading/NYPL_Digital_Gallery, which however only briefly discusses this, as the conversation was conducted primarily via direct e-mail with myself and I was hesitant to republish that correspondence without permission. Dcoetzee 17:42, 13 July 2009 (UTC)[reply]

Ethics and realities

I suggest finding a spot to link to http://www.dlib.org/dlib/november05/hamma/11hamma.html it's a most excellent short paper discussing the underlying challenge with collecting institutions.

Some colorful quotes from other writings on this subject:

"Other museums see their function more narrowly, i.e. to show their works, to protect them, of course, and, in addition, to protect their reputation and to project their significance. They do this, in part, because the reputation of the museum bathes in the reputation of its collection. For this reason, among others, access to images and permission to photograph images tend to be highly restricted. In these cases the museums are prisons and the pictures are prisoners serving to bolster the self image of the museum."
Making the Public Domain Public -- Robert A. Baron

"The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public. They ignore the public's ownership interest in our holdings, may be legally unenforceable, and, depending upon the implementation, may actually be criminal."
Archives or Assets? -- Peter B. Hirtle

I think the core story which must be well covered is how could this dispute exist in the first place. It's somewhat shocking to those familiar with the purpose and methods of copyright that the public domain could be subverted. This is an issue far larger than Wikipedia, our community (and Dcoetzee) have only be caught up in one little piece of it. --Gmaxwell (talk) 05:21, 13 July 2009 (UTC)[reply]

I agree, we must call upon the moral obligation of the NPG, their mission for the public at large. Under English law, they may have these Bold text rights, but that does not mean they NEED to do something with those rights. —TheDJ (talk • contribs) 10:40, 13 July 2009 (UTC)[reply]

I'm not sure that this page is the place to do that, although a lot depends on how long we have until the Signpost comes out this week. So far, I've tried to concentrate on facts and let the reader decide. I still need to add references for many of my assertions, and the text needs a good copyedit. If anyone has time before "publication", then feel free to add a section: I'll look into it once I've consolidated what we've got already. Don't forget as well that there are plenty of blog threads on which points can and should be made. Physchim62 (talk) 11:22, 13 July 2009 (UTC)[reply]

Well, you're not letting the reader decide if you allow them to labor under the impression that copyright is some kind of natraul right and not a social compromise... or that we're somehow alone in this... --Gmaxwell (talk) 12:28, 13 July 2009 (UTC)[reply]

"...a lot depends on how long we have until the Signpost comes out...". The goal is to publish by 23:59 UTC at the latest, hopefully a few hours before.--ragesoss (talk) 14:03, 13 July 2009 (UTC)[reply]

I agree that it serves Signpost readers to point to arguments like these that support the way our projects deal with copyright claims and explain why cultural institutions ought to be okay with, even enthusiastically supportive of, the Wikimedia efforts to make more stuff easily accessible and usable. I think it makes more sense for this type of thing to be in the open letter that others are developing off-wiki which will hopefully be ready for this issue to run alongside this article.--ragesoss (talk) 16:08, 13 July 2009 (UTC)[reply]

Dicta

The source for the dicta is unclear? Only if one's only research tool is Google Web and web logs. I've fixed it for you. I've also corrected the dicta to the actual, original, words. We also already had a (stub) article on Walter v Lane. Uncle G (talk) 12:23, 13 July 2009 (UTC)[reply]

"Unclear" meant I had better things to do than look it up, just as I have better things to do than respond to your other insinuations. If you wish to improve this piece, please go ahead, but without the arrogance. Physchim62 (talk) 13:24, 13 July 2009 (UTC)[reply]
- The arrogance is of your own imaginging. The only arrogant comment here is, ironically, your "better things to do" comment in response to simple pointers to cases and articles being given, and corrections being made. Uncle G (talk) 15:34, 13 July 2009 (UTC)[reply]
  - I point you to your "read and learn" comment above. If you want to improve this piece, edit it! This is a wiki after all. Physchim62 (talk) 17:59, 13 July 2009 (UTC)[reply]

Slight copyedit

While the page is editable by all, this is such a high-visibility page, that I wanted to announce my change first. I want to change the parenthetical "(among them the famous Chandos portrait of Shakespeare and other 400 year old paintings)" to "(among them the famous Chandos portrait of Shakespeare and other 400-year-old paintings)".—C45207 | Talk 04:07, 14 July 2009 (UTC)[reply]

No problem, thanks for the improvement. Regards, HaeB (talk) 12:01, 14 July 2009 (UTC)[reply]

Indeed. This piece was written to a very tight time schedule (for obvious reasons), so it hasn't had as much calm copy-editing as most Signpost pieces. Thanks for your help! Physchim62 (talk) 12:16, 14 July 2009 (UTC)[reply]

NPG Copyfraud

The NPG claims copyright over carte de visites published by companies in the 1870s. There were probably hundreds of these produced, and several still in existence today. How on earth can they claim copyright on something that they never produced in the first place (wouldn't this apply for all paintings too? Copyright belongs to the artist, not the owner of the picture). See Commons:File talk:Julius Benedict.jpg. Mjroots (talk) 07:19, 15 July 2009 (UTC)[reply]

The argument is that if the NPG take a new photograph of an object in their collection then the new photograph is copyright of the NPG. Selling copies of these images funds the photography. Racklever (talk) 11:37, 15 July 2009 (UTC)[reply]

I wouldn't call it copyfraud. Under U.K. copyright law, a photograph is a new "work" entitled to full protection. I recently ordered photocopies of some archival documents from the British Library. Their position is that each new photocopy creates a protectable "work," for copyright purposes. This would clearly not be the case under U.S. law, but under U.K. law it appears to be. Marc Shepherd (talk) 22:46, 15 July 2009 (UTC)[reply]

That's the NPG's argument, and it's a respectable one. However, it's not the only reading of UK copyright law, by any stretch of the imagination. It's the one that suits the NPG, and so they are murmuring it around wherever they can – the Head of Rights and Reproductions at the NPG is also Chairman of the Museums Copyright Group, the leading UK lobby on these matters. Personally, I would say that these images are not "works" they are "copies", and hence ineligible for copyright even in the UK. Physchim62 (talk) 23:25, 15 July 2009 (UTC)[reply]

That is how I would like it to turn out, too. But their reading of the law is not frivolous. It is at least possible that a U.K. court would agree with them. Unfortunately, the only way to know for sure is to test the waters and get sued. That is precisely what Hyperion Records did: they lost and were nearly bankrupted. The disputed legal issue was not the same one under discussion here, but it illustrates the risk that one faces in a copyright setting where the particular question has never before been litigated. Of course, there are also such cases where the defendants have won, so I don't want to portray it as all one-sided. But generally defendants have more to lose, because they are liable for damages if they are found to have infringed, whereas plaintiffs have only their attorneys' fees to lose. Marc Shepherd (talk) 00:32, 16 July 2009 (UTC)[reply]

Today's The Metro

(London edition), 15 July, has a piece on the dispute.

'A number of museums and historic sites' have arrangements for 'photography for personal use upon signing a permission document' (and sometimes payment of a nominal charge): as this situation is likely to arise again in the future, could something similar be set up with regards to WP? Thus permission would be granted for 'a specific batch of images' to be used with specific articles, possibly at the lowest viable resolution, with embedded copyright symbols etc?

Would it be possible for images where museums, galleries and other bodies have a copyright involvement to be 'rendered non-downloadable' (ie so everything else on the page can be saved for personal reference)?

Museums and galleries are there for the people - and are not there to make a profit.

However - we only hear of those cases where the organisation 'creates a fuss' rather than comes to an arrangement. —Preceding unsigned comment added by 83.104.132.41 (talk) 08:40, 15 July 2009 (UTC)[reply]

Online article here Mjroots (talk) 08:56, 15 July 2009 (UTC)[reply]

Update on representation

FYI for any future update on this story: As noted at Commons:User:Dcoetzee/NPG_legal_threat, I have secured representation for my legal conflict with the National Portrait Gallery. I will be represented pro bono by Fred von Lohmann, a senior intellectual property attorney for the Electronic Frontier Foundation. Dcoetzee (talk) 20:19, 15 July 2009 (UTC)[reply]

NPOV? Wikipedia?

Isn't Wikipedia supposed to maintain a neutral point of view? I thought that would be especially important in a legal issue which actually concerns Wikipedia. I can't understand how the Wikimedia Foundation can for one minute defend this user's actions or refuse to remove the offending images. Wikimedia has no problems instantly removing photos of a TV show produced by a billion dollar US company for example yet a cultural centre of art is another matter. I would love to see Wikimedia have its arse kicked in the courts especially after comments about how UK law doesn't apply to Wikimedia (in the same month as the USA government requests the extradition of a UK national simply for hacking into a few computers).--Xania ^talk 23:57, 18 July 2009 (UTC)[reply]

Well, we certainly tried to give both sides of the argument in this piece, although it was a little hectic for the time scale so I apologise if it still comes across as biased.

The reason that Bridgeman v. Corel has been followed on Wikimedia projects is because many users believe that it is good copyright law, not simply good U.S. law. The case was extensively argued, twice, and with some of the leading English-speaking copyright lawyers as amici curiae at the second hearing. The judgment only cites a small selection of the arguments available to a defendent in an E.U. country – it doesn't even cite all the relevant English cases – and, personally, I've no doubt the National Portrait Gallery would lose if they choose to pursue the case through the English courts. Physchim62 (talk) 01:08, 19 July 2009 (UTC)[reply]

Are you generalizing the US court's ruling to all of the EU now? There is absolutely no doubt that every kind of photo is copyrighted in Sweden and in the other Nordic countries. /Pieter Kuiper (talk) 07:21, 19 July 2009 (UTC)[reply]

There does not seem to be any sense in turning this into a transatlantic pissing contest, particularly as the European argument would be "nuh-uh, our copyright law is worse than yours!" For the record, I quite disagree with P. Kuiper about Swedish copyright law: a photograph does not constitute an independent work of art if it is nothing but a faithful reproduction of a different work of art. This is accentuated by the 1994 legal revision harmonizing photograph copyright with other artistic copyrights, as it means photos-as-art are subject to precedent that demands that they be unique, non-replicable works - something that a derivative work obviously cannot be. 80.221.34.183 (talk) 08:23, 19 July 2009 (UTC)[reply]

In Swedish law, any image made by a photographic process is protected for 50 years. There is no threshold of originality whatsoever. See 49 § of the copyright law. Absolutely any photographic image. /Pieter Kuiper (talk) 08:47, 19 July 2009 (UTC)[reply]

You mean 49 a § - incidentally, 49 § apparently covers the EU directive on "catalogues" the NPG also seeks to implement. You are correct in that there is a 50-year statute on "photographic images" (fotografisk bild), but this is markedly different from the death-plus-seventy-year statute on "photographic work" (fotografisk verk). It means a gallery does retain copyright on images it itself produces of its works, but I can't see this right extending to photographs others produce of those same original works, since the two are derivatives of the original rather than each other. I found no case law on lagen.nu that would suggest a different interpretation, though that's not to say it may not exist - I am not really a lawyer, let alone of Swedish law. And anyway, all this does not really pertain to the case at hand for a substantial number of reasons. 80.221.34.183 (talk) 09:10, 19 July 2009 (UTC)[reply]

§ 49a is not copyright, which is why it is in Chapter 5 of the Law and not Chapter 1. The threshold of originality for copyright in photographs in Sweden is "that they are the author's own intellectual creation" (Art. 6, Directive 93/98/EEC), and the copyright term is 70 years from the death of the author.

Related rights such § 49a are subject to different rules regarding their application outside the country of origin, which is why it is important to distinguish them from copyright. The UK has no similar right to that in § 49a, so § 49a is fairly irrelevant in the current discussion. Physchim62 (talk) 11:19, 19 July 2009 (UTC)[reply]

There is likely to be a permanent conflict between those who control the copyright in information/images/writings etc and those who have the means of reproducing said information - from tape recorders and the checks on typewriters in [Nicholae Ceausescu]]'s Romania to Napster and beyond.

The persons, commercial legal entities and institutions have a case in protecting their resources, and there is a case for arguing that museums, galleries and other such institutions are merely custodians of objects - and the only copyright they have is in the text and images produced by the persons officially employed by those bodies - the objects themselves are in the public domain. —Preceding unsigned comment added by 83.104.132.41 (talk) 09:38, 20 July 2009 (UTC)[reply]

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