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Transformative Use of Video Gets Another Win with DMCA Rulemaking

The Librarian of Congress has just released the most recent round of exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act. During prior rulemaking rounds, the Librarian has carved out exceptions for the use of clips from DVDs for educational purposes, initially by film studies professors only but then expanded to faculty from any discipline.  In this most recent round of rulemaking, the Librarian has recognized an exemption “where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.” The Librarian clarified, however, that the exemptions do not apply to the use of motion picture excerpts in fictional films, as the Register of Copyrights was unable to conclude that such use is noninfringing. In the Notice, the Librarian explains:

[The Register of Copyright] noted that such uses fall within the favored purposes referenced in the preamble of Section 107 and, especially in light of the brevity of the excerpts used, are likely to be fair uses. More specifically, the Register determined that the proposed uses tended to be transformative in nature, employing short clips for purposes of criticism, comment, teaching, and/or scholarship, rather than for the works’ originally intended purpose. Despite thecommercial aspect of uses by documentary filmmakers and multimedia ebook authors, the Register noted that when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard. While the Register did not conclude that a court would find each and every one of proponents’ examples to be transformative, she did find that
the record amply supported the conclusion that a substantial number of the proffered examples likely would be considered transformative fair uses.

The Librarian further noted that the Register found no merit to opponents contention that licensing or screen capture technology should be utilized to accomplish the desired uses. Requiring licensing for the use of clips for the stated purposes would be contrary to judicial precedence of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that such transformative uses were fair uses of copyrighted works.


V is for (small) Victory (and for Video)

The idiom “no good deed goes unpunished” has never felt truer. Lately, it seems that libraries and universities have made more hash marks on their legal scorecard in the lose column than they have in the win column. In this past year, the Second Circuit undermined the first sale doctrine rights of libraries, a federal court held a trial in Georgia that could determine the bounds of fair use with respect to electronic course reserves, and several authors groups have now filed a lawsuit against Hathi Trust and others engaged in the preservation of orphan works. However, a small victory came in a California federal court this week in the case against UCLA for its video streaming practices.

Last December, the Association of Information Media Equipment (AIME) filed suit against several UCLA officials and employees, including members of library and media lab staff, for copyright infringement after UCLA digitized and streamed DVDs produced by Ambrose Video. AIME asserted it had standing to file this action as an association representing its members, which includes Ambrose Video. In granting the UCLA officials’ motion to dismiss, the court disagreed. Because AIME is not the holder of any of the copyrights at issue in the case, it lacked standing to bring the action. “Having the rights over a copyright is essential to establishing a copyright infringement claim” the court stated in its order; thus, participation of an individual member who was also owner of one of the copyrighted films at issue in the suit, was required. Additionally, the court determined that the UCLA Regents and other officials were immune, under the 11th Amendment, from suit in their official capacities (although not necessarily in their individual capacities, the court pointed out). These two grounds for dismissal could similarly prove fatal for the recently filed action against Hathi Trust and several state universities. It will be interesting to see if the inclusion of a couple individually named authors (and presumably copyright holders), who are also members of the named author associations, will save that action on the question of standing.

The remainder of the ruling on the motion to dismiss concerned more substantive issues; although by no means was there any legally determinative interpretation of fair use or other elements of copyright law. Hence, why the victory here is a small one. For me, the most curious point of this section of the ruling was the court’s characterization of the license to publicly perform the copyrighted work. The court held, although without much discussion or justification in the existing body of law, that the copying of the DVD onto the UCLA server for streaming was that kind of “incidental copying” permitted by fair use. That is, in order to make use of its license to publicly perform the film, UCLA had to place the content onto its network. Although I have not seen the full text of the license entered into between UCLA and Ambrose, I have, in my time as a collection development director, read, negotiated, and executed many a public performance and streaming license. In nearly all the ones I have encountered, the streaming of a film is treated as a separate license from the one to publicly perform a film. In fact, some public performance licenses (whether it be a separate document included with the DVD purchase or a click through on the online shopping cart when purchasing a DVD) expressly exclude streaming for remote access or distance learning. Further, if the viewing of the streamed copy is done by a student in the privacy of his own home or dorm room and not by a class in a group setting, is this really a “public” performance?  As such, I would caution libraries and universities from relying too heavily upon this court’s interpretation of public performance and instead turn to the language of the institution’s own agreement.

For UCLA, the ruling is certainly a victory. AIME has until the 17th of October to refile the case, and I predict that unless they have an individual copyright holder to join in the matter as well as substantial evidence to make a case against the named defendants in their individual capacities such a refiling will not occur. For the rest of us who have been sitting patiently waiting for a ruling in this matter, the case is neither a victory nor a loss, for there still remains unanswered questions regarding the fair use of streamed media in distance education.

Scholasticus: When is showing a film a public performance?

I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?

Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class.  So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.

Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.


(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)

Scholasticus: On streaming video

May a faculty member who is teaching online digitize and stream documentary and Hollywood produced films in their entirety in order to illustrate a theme being covered in that class?

Earlier this week, I gave a presentation at Electronic Resources & Libraries on the rise in demand at colleges and universities for streamed video and how libraries can best address this need on the part of teaching faculty. Part of my discussion addressed the challenges copyright compliance presents in meeting this need. The Copyright Act at §110(1) addresses the performance of films in a face to face classroom. The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. And then there is still the application of fair use in the event the requirements of TEACH are not met. Oh, and let’s not forget, there is the DMCA, prohibiting the circumvention of technological prevention measures (TPM) on DVDs and other media for the purpose of copying and distributing their content. Thus, what may a professor do?

Digitizing and streaming an entire DVD is likely not permissible. Recently, an exemption under the DMCA was expanded to permit faculty of any discipline (as opposed to the previous extension to only film studies professors) to circumvent TPM in order to make clips of films for use in teaching and research. Under TEACH, there is the express limitation on quantity, and it is unlikely that an argument can be made that an entire film constitutes a reasonable and limited portion. In the Congressional Research Report prepared in connection with TEACH, it is stated:

Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal; however, the likelihood of an entire film portrayal being “reasonable and limited” may be rare. [emphasis added]

A fair use argument for streaming an entire film also is flawed. Factors two and three weigh against fair use given the creative nature of film making and the quantity used.  Recently, it has been suggested that because the purpose of the use is for other than entertainment, that it is transformative and under factor one fair use is favored. Whether there is a substantial effect on the market under factor four has been raised as an issue in the complaint against UCLA.

But faculty are not without alternatives should streaming an entire film not be permissible under current copyright law. There are many sources for streaming video content available that students can access on their own. For instance, the subscription service Netflix offers thousands of documentaries and mainstream film titles on a streaming basis for an affordable monthly fee that most students likely already pay. Additionally, sites like Amazon and iTunes offer inexpensive streaming video rental. Further, many commercial distributors of films offer licensing of streaming content, although the cost varies across vendors and is dependent upon a variety of factors.

Immunity, Contracts and Copyright: An update on AIME vs UCLA

A little more than a month after being sued for copyright infringement, UCLA has responded with a motion to dismiss the action on the grounds the court lacks subject matter jurisdiction by virtue of the Eleventh Amendment’s grant of immunity to UCLA’s Board of Regents and chancellor and for failing to state a claim against any named individual who was personally responsible for the alleged infringement. UCLA’s attorneys also claim that neither AIME nor Ambrose video have standing to sue and that certain of their state law claims are preempted.

Eleventh Amendment jurisprudence has a long and complex history. Generally, under the 11th Amendment, and in the absence of a State’s consent or waiver or Congressional abrogation, a State may not be sued in a federal court. For purposes of the 11th Amendment, the term “State” includes not just the State in name, but also its agencies and, in some narrowly defined instances, its officials. Here, UCLA contends that the State of California has not consented to suit and Congress has not acted to abrogate immunity in actions under the Copyright Act. As such, the Board of Regents and Chancellor enjoy 11th Amendment immunity as State actors in their official capacities. The unfortunate situation of States and their legal entities escaping liability for copyright infringement has been debated for years, most notably in 2000 when the Register of Copyrights requested Congress to seriously consider the implications of extending immunity to States in actions involving intellectual property.  (See also GAO Report on State Immunity in Infringement Actions.) Because higher education has been the target in recent legislation concerning protection of intellectual property, I am not convinced that abrogation of immunity would be the best solution to this situation. The TEACH Act, the DMCA,  and the HEOA, for example, impose stringent limitations on educational institutions aimed at preventing infringement by their employees and students. Failure to comply with the requirements of these acts pose sufficient burdens upon universities without opening them up to litigation. For further discussion on immunity and academic institutions, read this short piece from Information Today.

UCLA’s attorneys contend that AIME lacks constitutional standing to file suit because it is not the owner of any of the copyrights alleged to have been infringed.  Further, AIME has not satisfied the requirements of demonstrating it could bring a lawsuit on behalf of its members, including Ambrose Video. The crux of UCLA’s argument rests upon a failure of the complaint to allege sufficient facts to support standing. I do think, however, that a properly drafted complaint could support AIME’s claim it has standing to represent its members. If this was the singular ground upon which dismissal was sought, I would hope the court would grant the right to amend the complaint. However, the immunity claim is meritorious enough that an amendment may not save the suit.

Finally, the motion for dismissal contends that the claims of AIME and Ambrose Video are preempted because they are grounded in state contract law. In the complaint, AIME and Ambrose state nearly identical claims under both the Copyright Act and state contract law. In the event the federal Copyright Act claims are dismissed on immunity or other grounds, UCLA argues, the state law claims cannot go forward because they are preempted by the Copyright Act. The contract giving rise to these claims is the license agreement entered into between Ambrose Video and UCLA when UCLA purchased DVDs from Ambrose. Under the terms of the license agreement, UCLA was prohibited from duplicating and broadcasting the content on the DVDs. UCLA contends, quote novelly, that this prohibition addresses conduct that is also addressed in the Copyright Act and as such is preempted. As Duke University’s Kevin Smith aptly notes, this argument has the potential of changing the way universities, and more notably their libraries, do business with providers of licensed content. If contracts that seek to control conduct that is otherwise covered by fair use or other provisions of the Copyright Act are preempted, the negotiation and effect of license agreements will radically change, perhaps for the better for libraries and their patrons.

“Beyond Fair Use” – A Proposal for the Digital Age?

As part of my daily diet of copyright cuisine, I sample the tables of contents of various recent law review issues to see if anyone has something interesting to say about fair use. The other day I came upon an article in the November 2010 issue of Cornell Law Review entitled “Beyond Fair Use.”  The authors, University of Pennsylvania law professor Gideon Parchomovsky and U.S. Deputy Assistant Attorney General Philip Weiser, aptly explain how the Digital Millennium Copyright Act (DMCA) has depreciated the balancing effect of fair use in our copyright system by chilling the creativity of users of copyrighted content. When enacting the DMCA, the “Congress made a conscious decision not to recognize fair use as a defense in circumvention cases” and thereby “significantly limited the scope of fair use for copyrighted works in digital media.” (p. 93-94)

In response, several scholars have proposed solutions that purportedly  enable creators to access legally those works protected by Digital Rights Management or other types of technological protection measures. But, the authors point out, these solutions suffer from certain fatal flaws. For example, two scholars have separately, but similarly, proposed the creation of an administrative agency within the Copyright Office or as an independent office that would be granted the authority to promulgate regulations and issue rulings on what types of uses constitute fair use. The costs of time and money that would be faced by an agency handling the volume of inquiries render this proposal unlikely of success. Other proposals noted by the authors include the call to grant users “the right to hack” and the development of a reverse notice system whereby content users would alert copyright owners of their intent to use copyrighted content and the failure of the owners to respond within an allotted time would constitute a grant of permission. The authors contend that these proposals are also flawed on account of the average citizen’s tech savvy precluding their ability to hack or circumvent protection mechanisms and access the protected content.

Although the authors recognize that these prior proposals have some merit, the inherent flaws in each mandate, in their minds, the offering of yet another proposal, which in my mind is also fatally flawed for some of the same reasons they cited when critiquing the earlier offered solutions.  Drawing upon real-life examples whereby content owners voluntarily permitted users to create copies of digital works (e.g. Apple’s FairPlay), the authors propose a “two-stage regulatory regime” that largely is reliant upon the competitive nature of business (p. 126-136) The creation of competition would come, suggest the authors, from the requirement by the Federal Trade Commission (FTC) that digital content providers (1) include in their products a conspicuous statement of access and use standards for consumers and (2) devise innovative technological ways of implementing that use and access. The authors hypothesize that this notice system will create competition amongst providers and encourage experimentation in access methods. As a result, users will be afforded privileges they do not presently enjoy. While the authors expect this system to be successful through this initial step, they nevertheless offer a “second” step to be used in the event the desired result is not achieved. The authors assume that competition and experimentation will have occurred and a wealth of data about what worked and what didn’t will become available. Should an extra nudge be needed, then, Congress should take this data and use it to draft a scheme of user accommodation, which the FTC would then be charged with enforcing.

While I agree with the authors about the powerful effect of competition, I also feel that their proposal suffers from the flaws of cost and of user savvy. Although the FTC is accustomed to regulating and enforcing a system such as that proposed (the authors analogize it to the FTC’s involvement in the privacy notice regime), the addition of this new and potentially larger task will be taxing on the present resources. Further, users may be stymied by constantly changing access modes to digital content, which may be the end result of the “experimentation” envisioned by the authors. Finally, I am left wondering if these notices of user privileges are necessary in light of the availability of Creative Commons licensing, an already established and simple to use system for notifying users of how digital content may be used. While the Creative Commons system lacks the technological component for controlling access, it may be more worthwhile to explore ways which this already developed notice system can be utilized rather than draft additional lengthy click-through notices that most users don’t take time to read.

Taking AIME at UCLA

The Association for Information and Media Equipment (AIME) made good on its threat earlier this year by filing a copyright infringement lawsuit this week against the University of California system and the chancellor of the UC Los Angeles campus (UCLA). The challenge levied both in January 2010 and in the Dec. 7th filing contends that UCLA infringed upon the copyrights of Ambrose Video, one of the institutional members of AIME, by copying (in violation of the DMCA), digitizing and streaming full length Ambrose Video DVD content via a password protected on-demand technology delivery system. Specifically, the complaint alleges that UCLA digitized a DVD series of BBC Shakespearean productions and streamed them more than 130 times to students and faculty.

Ambrose Video, like many film distribution companies including Films for the Humanities, New Day Films, and California Newsreel, provide by license, which is assented to upon purchase of their DVD products, that digitization and streaming of DVD content is prohibited and that a separate license must be purchased. Ambrose and these other film distribution companies offer, as part of their services, streaming video on-demand from their own servers or by license from an institution’s servers. AIME contends in its complaint that the actions of UCLA are not only a violation of license (hence, a breach of contract) but also, by digitizing and streaming its members’ DVDs, colleges and universities are unfairly preempting this emerging market and great harm will be sustained by the educational video business.

UCLA’s stance is that its actions fall within three exemptions of the Copyright Act, 17 U.S.C. § 101 et seq. First, UCLA claims that the streaming of full length DVD content constitutes a public display under § 110(1). Second, the University claims that the TEACH Act exemption at § 110(2) applies. Finally, UCLA resorts, as a fallback position, to the fair use exemption at § 107. In its complaint, AIME addresses each of these assertions of exemption. AIME contends that the streaming of content is not a public display because the attendant requirement of “face to face” teaching is not present. Rather, students and faculty can access the streamed content on-demand, at any time and at any place, and not necessarily simultaneously. The TEACH Act exemption does not apply, according to AIME, because the Ambrose Video DVDs are separately marketed as available for “mediated instructional activities” through its on-demand streaming service. The TEACH Act expressly excludes from its exemptions those works explicitly produced and sold for distance learning. The TEACH Act also, albeit ambiguously, limits its exemption to “limited and reasonable” portions of fictional or dramatic works. In this case, entire DVDs were streamed.  Finally, the result of a balancing of the four factors of fair use likely would not extend protection to the actions of UCLA, argues AIME, because of the aforementioned harm to the market and the streaming of entire DVDs.

The AIME suit against UCLA, unlike the copyright litigation instituted by journal publishers against Georgia State for its e-reserves practices, seeks monetary damages in addition to injunctive and other relief. My sincere hope is that the budget crisis faced by the UC system will not lead it to enter into a quick settlement of the dispute and thereby deny us the opportunity to have these pervading questions answered by a court of law. I also hope that the new Copyright Czarina, members of Congress, and the Library of Congress will note the important issues raised by this case and take steps to update the Copyright Act through amendment or design of further exemptions to address the opportunities technology offers educators and students so that pedagogical goals in the online classroom can be met same as in the physical classroom.


Most persons who are aware of the Higher Education Opportunity Act (HEOA), enacted in August 2008, consider the legislation as applicable primarily to the federal student assistance programs. Few persons realize that copyright compliance regulations targeted toward reducing illegal file sharing (aka Peer-to-Peer or P2P) were promulgated during the negotiated rule-making periods after the enactment of the HEOA. Effective July 1, 2010, institutions participating in those federal student assistance programs must comply with these  regulations in order to continue offering federal financial aid to their students.

The new regulations (see 34 C.F.R. § 668.14(b)(30) and 34 C.F.R. § 668.43(a)(10)) impose three primary responsibilities upon colleges and universities.

  1. Annual Disclosure. Institutions must issue an annual disclosure to students describing copyright law and the school’s policies and sanctions for dealing with violations of the law and policies. The disclosure should detail the nature of the penalties imposed for copyright infringement. To assist with disclosures about federal law, the Department of Education produced a standardized disclosure and inserted this document in the handbook for federal student aid. However, colleges and universities still must issue an institutional statement about their policies and penalties for unauthorized or illegal distribution of copyrighted materials using the campus IT system.
  2. Infringement Combat Plan. The HEOA regulations require institutions to write and implement a plan to effectively combat on-campus network copyright abuse by using one or more specified technology deterrents: (a) bandwidth shaping, (b) traffic monitoring, (c) prompt attention and response to DMCA notices of infringement, and (d) use of any of a variety of commercial products designed to reduce or block illegal file sharing. This policy must be reviewed with some defined regularity, but campuses are afforded discretion with regard to determining what criteria should be applied and what methods to implement.
  3. Offer Alternatives. Colleges and universities must provide students with alternatives to illegal downloading. This requirement can be accomplished by simply posting a list of legal alternatives. The organization EDUCAUSE has compiled a list of these legal alternatives, which institutions may direct students to. Libraries can also play a helpful role by providing information about licensed streaming video content. Additionally, the Motion Picture Association of America (MPAA) notified college and university presidents in a letter issued to them today that it has launched a new website entitled “Respect Copyrights” and therein it has compiled a comprehensive list of legal video streaming sites.

While the above-referenced letter from the MPAA to college and university presidents is intended to be a kindly extended  hand of cooperation in preventing the “theft of creative materials,” the underlying message is also a warning. The MPAA does not hesitate to inform its addressees of the consequences of not complying with the HEOA and notes, courteously, that it will send notices whenever illegal activity involving its members’ copyrighted content is detected.

The Terms that Bind

Accompanying nearly every item of electronic technology, whether it is software, database, or digital media device, is a document that dictates how that technology may be used. These documents, known more commonly as “terms of use” or “license agreements,” are contractually binding on both the provider and the consumer, even if that consumer is an academic institution and its constituents. A common misconception amongst users of electronic technology in an academic context is that these terms of use can be eschewed on grounds of educational fair use or academic freedom.

One example of such misconception is the use of Netflix subscriptions by academic libraries. Following the publication of an article in Library Trends detailing the workflow created at a community college library to manage a Netflix subscription, how the subscription was used as a tool for collection development, and the limitations of a subscription compared to library ownership of media, several libraries spoke out about their own experiences utilizing Netflix on an institutional basis. In response, several publications, including the Chronicle of Higher Education and American Libraries, reflected upon the legalities of this practice. The author of the Library Trends piece indicated that the library’s Netflix subscription complied with federal copyright law because teaching faculty were permitted to display legally obtained films in a face-to-face classroom situation. While her interpretation of copyright law is correct, whether or not the films were obtained “legally” is doubtful. Per the Netflix Terms of Use agreed to by any one subscribing to their service, “use of the Netflix service … is solely for your personal and non-commercial use.” This indicates that use of the Netflix service by an institution to circulate videos to their service population is a violation of these terms, which in essence is a breach of contract. Academic copyright expert and attorney Kevin Smith agrees. As quoted in the Chronicle, Smith states: “My personal opinion is that the risk of a contract problem makes it not worthwhile for us to have a program to lend discs that we borrow from Netflix.  It’s not a copyright issue. It’s an issue of the contract between the user and Netflix.”  Further, Netflix does not offer institutional subscriptions and “frowns upon” libraries loaning Netflix DVDs or video stream to faculty members to share with students.

Another common misunderstanding arises in the use of full text materials accessible through licensed databases. While libraries and universities strive to include the most liberal of usage terms when negotiating licenses for scholarly databases, oftentimes use is curtailed in the interest of access. Institutions are forced to not only pay high subscription costs but also bargain away certain uses in order to secure convenient and complete electronic access to full text scholarly journals for faculty and students. Yale University maintains an excellent web site dedicated to promoting the creation of agreements with publishers that assure access to knowledge. The site also provides links to many of the most common scholarly content publishers and hosts licenses. As an example of the challenge faced by libraries and academic institutions when trying to serve the needs of their community and at the same time comply with the legally binding terms of the publishers’ agreements, review the Terms and Conditions of Use of JSTOR. Paragraphs 2.1 and 2.2 specify the permitted and prohibited uses of content found on JSTOR. Pursuant to paragraph 2.1 “Authorized Users may search, view, reproduce, display, download, print, perform, and distribute Licensed Content” for a variety of purposes, including research activities and classroom instruction; however, such uses will be deemed in violation of the terms of the license should they appear to be any of the practices detailed in paragraph 2.2, such as the reproduction or distribution of content in bulk in course packs or electronic reserves. As stated previously, this reality is a reason why the academic community should champion open access.

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