Dear Bands: No Matter How Much You Dislike John McCain, He Can Most Likely Use Your Song

from the can-we-get-this-over-with? dept

Thu, Oct 9th 2008 2:25pm — Mike Masnick

The latest in a long line of musicians complaining about Presidential candidate John McCain for his use of their music at campaign stops would be the band the Foo Fighters. Now, as we've pointed out in the past, there are two separate issues to keep in mind here:

In most cases, there's nothing these bands can do from a legal standpoint. Assuming the venue where the music is being played has paid its standard ASCAP license, they can play whatever they want. So when the Foo Fighters make statements like: "It's frustrating and infuriating that someone who claims to speak for the American people would repeatedly show such little respect for creativity and intellectual property" is somewhat misleading. It implies that McCain is somehow breaking intellectual property laws. He is not. No matter how much a musician dislikes it, they can't stop these kinds of uses, thanks to the way performance licenses work.
That said, it still seems rather dumb, from a PR standpoint, for the McCain campaign to keep doing this. By now, it should be clear that in a highly-charged political campaign, a band will speak up against the use of a song, if they don't like the candidate. That just leaves the campaign open to more negative press coverage in a way in which many people will sympathize with the musician against the politician -- even though the politician may be on the legally correct side.

Since the McCain campaign has so far ignored these requests in the past, I'm guessing it will continue to do so. But, to avoid these sorts of stories, it would be smart to start asking musicians whether or not they support the candidate before using their song. Or, perhaps, just start using public domain music.

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Filed Under: copyright, foo fighters, john mccain, music, performance rights, presidential campaigns, royalities

48 Comments

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Valkor, 9 Oct 2008 @ 2:34pm

Are these bands even complaining about music to which they own the rights? Don't the record labels own most of the music copyrights, rather than the bands that made the songs?
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- josh, 12 Oct 2008 @ 11:25am
  
  Re:
  First of all, you need to know that there are two copyrights here. First, there is the copyright to the actual song, which the songwriter always keeps. Second, there is the copyright to the actual recording of that very song, which is owned by the record label that had it recorded. One copyright it held by the artist. The other is held by the record label. Thus, if I wanted to record my own version of the song, I would only need the artist's permission. It is only when I want to use the RECORDING of that song that I need the record label's permission.
  
  Second of all, as this piece explained, the artist already GAVE their permission for the song to be used (through an ASCAP license), but they did not know that it would be used on McCain's campaign, so now, they are upset about it. But it's too late- they already gave the permission. Get it?
  
  Also I should note that for the copyright in a sound recording (which the labels have), there actually IS no exclusive right of performance. But this is not the place to elaborate.
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Anonymous Coward, 9 Oct 2008 @ 2:37pm

"...just start using public domain music."

Those musicians (or their descendents) will whine about it, also.
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DL, 9 Oct 2008 @ 2:41pm

Political Music usage
Sounds like sour grapes. I don't like Obama but I don't call up and complain because he may use a song I really like. Remember "don't stop thinking about tommorow" from Bill Clinton. I'm sure that band liked his usage but he may have ruined the song for millions.
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- Smart is NOT a perjorative, dum-dum., 9 Oct 2008 @ 3:45pm
  
  Re: Political Music usage
  >Sounds like sour grapes. I don't like Obama but I don't call up and complain because he may use a song I really like. Remember "don't stop thinking about tommorow" from Bill Clinton. I'm sure that band liked his usage but he may have ruined the song for millions. Are you retarded? This is not about some tool like yourself complaining about someone ruining songs they "like." This is about the person who created, wrote, mastered and performed the song disliking it's use for causes they oppose in order to look "hip." For example if I take photos I found from your Flickr account of you waving your flag at a NASCAR rally and used it on a blog about dimwitted Republicans with proper legal credit as my avatar to attract people like you, it would be a bit disconcerting, wouldn't it? Think before you answer, now, as I may insist you put your money where your mouth is...
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  - Mike (profile), 9 Oct 2008 @ 8:39pm
    
    Re: Re: Political Music usage
    For example if I take photos I found from your Flickr account of you waving your flag at a NASCAR rally and used it on a blog about dimwitted Republicans with proper legal credit as my avatar to attract people like you, it would be a bit disconcerting, wouldn't it? Think before you answer, now, as I may insist you put your money where your mouth is...
    
    That would actually be infringement, because there's no compulsory use rights for photos.
    
    For music, however, there is.
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- Anonymous Coward, 9 Oct 2008 @ 3:56pm
  
  Re: Political Music usage
  Well, he may have ruined it for you but you didn't write the song...
  
  These guys wrote the song.
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Mark Regan, 9 Oct 2008 @ 3:01pm

Who Said McCain Gives a Cr*p?
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Mr. Poodles, 9 Oct 2008 @ 3:01pm

The sound of the single-hand clap
It appears that it's difficult to find a single artist that would support McCain and the NeoCon agenda.
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- DS, 10 Oct 2008 @ 5:36am
  
  Re: The sound of the single-hand clap
  Well then, if some rich person who plays music for a living likes Obama, that's enough for me.
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LostSailor, 9 Oct 2008 @ 3:07pm

No Harm in Asking, or Making a Statement
It implies that McCain is somehow breaking intellectual property laws. He is not. No matter how much a musician dislikes it, they can't stop these kinds of uses, thanks to the way performance licenses work.

You're absolutely correct that, assuming the McCain campaign is paying the fees, there is nothing that can be legally done to stop them.

The Foo Fighters statement doesn't actually say that he's breaking the law, and while one might read into the statement the implication you mention, I read it as a public figure, especially a politician, might want to show a little more respect toward artists by at least asking first.

Okay,politicians and respect are not two concepts that naturally go together, and the campaign (and McCain supporters) probably don't really care what the Foo Fighters, Jackson Browne, or Heart think as long as the right mood is set at their rallies.

Reagan was famous for using Springsteen's "Born in the USA" even after the singer asked him to stop. Ronnie and his supporters apparently never actually listened to the lyrics.
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Jesse, 9 Oct 2008 @ 3:19pm

I think it is absurd that a person would create a song, release it, and then object to its use. If you are worried about it getting used in a certain way, then you should keep it in your head.
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- Michael, 18 Oct 2008 @ 1:20pm
  
  Re:
  In many publishing contracts, the writers (not necessarily the performers by the way) sometimes specifically say they do not want their compositions to be used for politics or alcohol ads.
  
  As the article points out, there is nothing legally to be done. But it's not just a case of McCain. Worldwide, politicians piggyback on the popularity of specific songs to build their message and writers are often pissed off.
  
  If I was in that position, I would grumble too. And if I was a campaign organiser, I'd check with the writers beforehand to avoid these silly public spats. I'd imagine there must be songwriters out there that would not mind endorsing McCain indirectly.
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Anonymous Coward, 9 Oct 2008 @ 3:29pm

More than likely the musicians do not own the rights to the music they themselves created, which is just one more reason the big record labels need to die out.

McCain doesn't care what the artists think. I'm sure there are plenty of musicians who would not mind their music being used at McCain's events. Unfortunately it's probably backwoods country bumpkin crap that .05% of America would enjoy hearing.

The funny thing is that if the roles were reversed and someone got public domain photos of McCain and posted them as a border on their super-gay-pr0n-site he would have a tantrum and there would be an uproar. Knowing republicans I wouldn't rule out bloodshed or very creative uses of the "Patriot" Act. After all, they burned effigies of Hillary over health care and hung some of Obama from trees.
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EvilBastard, 9 Oct 2008 @ 3:30pm

Born In The USA
What's even funnier is the Republican Party using Bruce Springstein's Born In The USA! If they stopped and actually read the lyrics, they might not have used the song in the first place.
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Todd, 9 Oct 2008 @ 3:32pm

C'mon, how many musicians do you think actually support McCain? If he had to "start asking musicians whether or not they support the candidate," he wouldn't be able to use any music (well, mabye Ted Nugent, but most of his music isn't really appropriate for a presidential campaign).
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- Anonymous Coward, 9 Oct 2008 @ 4:30pm
  
  Re:
  Todd said:
  "C'mon, how many musicians do you think actually support McCain? If he had to "start asking musicians whether or not they support the candidate," he wouldn't be able to use any music (well, mabye Ted Nugent, but most of his music isn't really appropriate for a presidential campaign)."
  
  What you don't think McCain would want to use "Wang Dang Sweet Poontang"? haha
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Phillip, 9 Oct 2008 @ 3:37pm

Ick
Wouldn't it be a much happier and simplier world if you could play a song wherever you wanted w/o having to worry about all the made up legal mumbo jumbo. It just doesn't make much sense.
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- josh becker, 12 Oct 2008 @ 11:34am
  
  Re: Ick
  That's like saying "wouldnt the world be a better place if i can go into a Walmart and just take anything i want for free without paying?"
  The answer is that no companies or inventors would have any incentive to create and manufacture anything if they knew it would be given away for free.
  There is a common-sense reason why intellectual property (such as 'songs') are protected by what you call 'legal mumbo jumbo.' Without protection that makes sure one can reap the benefits of their labor (spending thousands of dollars and hundreds of hours in a recording studio after years of composing), there would BE no songs.
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blinkdt, 9 Oct 2008 @ 4:22pm

"If your under 30 and not a liberal, you don't have a heart. If your over 30 and not a conservative, you don't have a brain."

How true. So the objectionable music was authored by a bunch of youths who are living vicariously through Obama? I'm voting for a President, not a 'Rock Star' thank you very much. The Rock Stars can go pound sand.
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- Anonymous Coward, 9 Oct 2008 @ 6:18pm
  
  Re:
  "How true. So the objectionable music was authored by a bunch of youths who are living vicariously through Obama? I'm voting for a President, not a 'Rock Star' thank you very much. The Rock Stars can go pound sand."
  
  arent these guys in their 40s?
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- theNick, 10 Oct 2008 @ 9:52am
  
  Re:
  blinkdt,
  
  I groan in agony every time I hear that adage. What a crock. You want to call yourself a Conservative? Well, when you retire you better not take any Social Security or apply for any government assistance.
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republican rock fan, 9 Oct 2008 @ 5:25pm

Ummmmm I really hate it when bands protest so. Is it because they can't stand the thought that there may be some republicans that actually listen to their music. By listen of course I mean buy and use for their own entertainment. Thus the attraction for having it played during rallies.

If there is no law against it, by protesting you are driving your fans who may belong to that party away. For Pete's sake put your business hats on guys. Alienate fans and they'll hit you in your proverbial royalty check. I personally vote with my dollars when it comes to musicians who get political.

If you really are creative and want to protest, do it through your art form, not whining to the press.
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michael dean, 9 Oct 2008 @ 5:26pm

I read 1-15 replys
I was disturbed by how many people blew off the artists concerns. You people who blew off the artists try this:Imagine you created a wonderful song and Hitler played it before during and after every one of his rallies. Do you see how an artist might at the very least feel as though his song had been used by someone for a purpose that is beyond copyright law... more like natural law. It only seems natural that Hitler or McCain would simply disregard whether the artist despised them using it. It also seem natural that most people (who aren't nearly as evil as Hitler or McCain) would respect the artists wishes.
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- Anonymous Coward, 9 Oct 2008 @ 5:40pm
  
  Re: I read 1-15 replys
  Ah, the Hitler reasoning pops up again...moron.
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- Anonymous Coward, 10 Oct 2008 @ 8:47am
  
  Re: I read 1-15 replys
  Goodwin'd.
  
  Good show, old chap!
  
  (If they release their music to the public, in a country that allows compulsory licensing, they have no right to complain. Doing so simply makes them look as though they are unaware of the rules, IOW: stupid)
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  - Michael, 18 Oct 2008 @ 1:26pm
    
    Re: Re: I read 1-15 replys
    Au contraire! They are entirely right to complain as they are powerless to actually stop the use otherwise.
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Adam, 9 Oct 2008 @ 6:09pm

Obama
Nice, a Hitler reference. I wonder what the Obama supporters listened to while they fire bombed buildings and cars during the 60's.
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NeoConBushSupporter, 9 Oct 2008 @ 6:14pm

WAKE UP
Who the hell cares what a bunch of pot smoking slackers from Seatle say. They need to sober up, brush the scone crumbs out of their goatees and take a look at whats really going on. Hussein Obama and his terrorist cronies are well on their way to turning our beloved country into an islamic-state. I guess we'll see how much Barbara Streisand likes wearing a berka around her penthouse. Seriously people, this is getting scary.

VOTE McCain 2008 - . . . . . . . MAVERICK! . . . . .
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- Anonymous Coward, 10 Oct 2008 @ 2:14am
  
  Re: WAKE UP
  Lovely. So you believe Obama associates himself with Terrorists. Please tell more, as I'm trying to understand your logic here.
  
  I think you are just trying to connect dots that just plainly don't exist. I can however, draw a straight line directly to Palin's Husband who was associated with a group that wanted Alaska to succeed from the USA. They downplay it by saying he's ahem... a registered independent voter. The fact is that she's delivering speeches in front of a sign that says "Country First", and it makes me wonder, "Which country? The Country of Alaska?"
  
  But like Neo Con supporters, your primary, superficial focus has always been on personal attacks. This is just sad. The Obama team out here has had several folks with Obama signs in front of their house threatened, as in "I'm going to burn your house down" threatened.
  
  But it's not surprising because watching Fox & Friends this morning kinda projected the level of hate that is coming from this campaign. Steve Ducy is the quintessential Asshat, and it seems only recently did O'Riley learn the word "nefarious", as he had to stop after the letter and say "That's a great word."
  
  So I am left with a few theories about you. Either you've been watching the VP debates with your pants to your knees, or you suffer from this thing called "racism".
  
  Anyways, it just seems it's best to vote for "That One".
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  - Anonymous Coward, 10 Oct 2008 @ 4:51am
    
    Re: Re: WAKE UP
    "But it's not surprising because watching Fox & Friends this morning . . . "
    
    Dude . . . YOUR part of the problem!
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  - HoBoJo, 10 Oct 2008 @ 5:32am
    
    Re: Re: WAKE UP
    So I am left with a few theories about you. Either you've been watching the VP debates with your pants to your knees, or you suffer from this thing called "racism".
    
    I'm surprised it took 28 posts for the race card to come out. If you don't like/vote for Obama, you're a racist (or pervert if you voted McCain/Palin).
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    - Anonymous Coward, 10 Oct 2008 @ 8:48am
      
      Re: Re: Re: WAKE UP
      I'm a racist pervert.... who do I get to vote for? ;)
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      - HoBoJo, 10 Oct 2008 @ 10:47am
        
        Re: Re: Re: Re: WAKE UP
        I'm a racist pervert.... who do I get to vote for? ;)
        
        Both. Just get with ACORN and they'll setup you up. ;)
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Clueby4, 9 Oct 2008 @ 6:35pm

Make a statement a leave it that.
The artist should just take the opportunity the song's use provides to voice their displeasure, while recognizing the evil bastard's right to use it.

Why not release a remix version of the song; My Hero (Cowardly McCain mix)
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Nick Stamoulis, 9 Oct 2008 @ 6:43pm

I have to say I agree to an extent with Michael Dean up there. If you put your heart and soul into song and someone plays it as a "theme" of theirs...someone who you COMPLETLY disagree with what they stand for, you too would stand up publicly and ask that they no longer use it anymore either. Come on... it's common sense.
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- Rushie, 9 Oct 2008 @ 6:55pm
  
  Re:
  someone who you COMPLETLY disagree with what they stand for, you too would stand up publicly and ask that they no longer use it anymore either. Come on... it's common sense.
  Really? For more than ten years Rush Limbaugh has opened his show with a piece done by Chrissie Hynd & The Pretenders, "My City Was Gone", and it's become Rush's theme song. Whenever the then washed-up Pretenders would play that song in concert, the crowd would go wild. It wasn't because of their album, which was released years earlier - it was Rush's playing the song every day that brought it home.
  Maybe Chrissie and the Pretenders don't like Rush, but I'm sure they're not returning any of their royalty checks either.
  You can read about them here
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  - jonnyq, 9 Oct 2008 @ 7:07pm
    
    Re: Re:
    Mike, just want to point out that "Rushie" isn't me =) (I referred to the same thing in response to the last article.)
    
    I'm still of the opinion that it's not "stupid" on the part of the McCain campaign. The only place I'm hearing about this is here, so I don't think they're going to get any bad publicity from it.
    
    Lyrics from a pop chorus are often used out of context (given a new meaniing) in television ads. It's not that uncommon.
    
    Also, if I like the lyrics (in context) of a song and what they say, then I really don't care what the artist's personal views are. There are a few Beatles songs I'd gladly use, but Paul McCartney would never agree with me on anything.
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Pasta Pete, 9 Oct 2008 @ 8:17pm

McCain should start using Clampdown by the Clash as his campaign theme.
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Moose, 10 Oct 2008 @ 6:14am

Legal recourse
I wonder if the McCain has any recourse against these bands. If he does I hope he pursues it. They are claiming that he is violating the law which seems to me is defamatory
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- Anonymous Coward, 10 Oct 2008 @ 7:27am
  
  Re: Legal recourse
  "They are claiming that he is violating the law which seems to me is defamatory"
  
  Certainly not if THEY believe what they are saying.
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  - Anonymous Coward, 10 Oct 2008 @ 8:54am
    
    Re: Re: Legal recourse
    So...
    
    if I believe you are a clueless tea-bagging ass-hat, and start posting this as a *fact* on every website with a forum on google's top rankings, that's not the least bit defamatory, right?
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Mr. T, 10 Oct 2008 @ 6:38am

Absurd Comments
No matter who you vote for - pay attention to the issues of importance to you and the country. Music is a nice backdrop - but it is just that.

The stereotypes on both sides are ludicrous. As a 60's child, who was also a former cop, a son, a father, a family man, a conservative, a liberal, an independent . . . look, learn and listen - don't buy into the hype.

Vote your conscience.
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Mark Jaffe, 10 Oct 2008 @ 7:01am

re: Valkor's question
Valkor -

The performance right extends only to the composition, and not the recording. The record company usually owns the sound recording copyright, but the songwriters (and, often, the publishers) retain control of the composition. So, in this example, the record company doesn't have an enforceable right. It would be whoever wrote "Hero."

Similarly, if McCain used Prince's version of "Best of You," Prince likely would have no enforceable right. Foo Fighters would.

The original post, and this answer, discusses only the right to perform the song at a live venue. Usage in tv commercials, as the McCain campaign has done, brings up different issues.
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Anonymous Coward, 10 Oct 2008 @ 8:46am

and they are not claiming he violated any law. Next time RTFA!!

"This isn't the first time the McCain campaign has used a song without making any attempt to get approval or permission from the artist. It's frustrating and infuriating that someone who claims to speak for the American people would repeatedly show such little respect for creativity and intellectual property. The saddest thing about this is that 'My Hero' was written as a celebration of the common man and his extraordinary potential. To have it appropriated without our knowledge and used in a manner that perverts the original sentiment of the lyric just tarnishes the song. We hope that the McCain campaign will do the right thing and stop using our song--and start asking artists' permission in general!"
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- Anonymous Coward, 10 Oct 2008 @ 8:57am
  
  Re:
  "show such little respect for creativity and intellectual property."
  
  ...Intellectual Property rights are governed by laws. Disrespecting these rights (abusing them) is against the law.
  
  Try to think beyond the words.
  
  Hell, do you believe every commercial you see?
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stephen miller, 13 Oct 2008 @ 9:33am

McCain's use of music
The artist's recording of the work may also be used because there is no public performance right in sound recordings. The only argument that might fly would be in the case of a song that was itself a political statement that was so associated with the political that its' use would constitiute a false attributuion of sponsorship.
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Alessar, 14 Oct 2008 @ 1:02pm

Implied Endorsement
I think the problem arises because using a piece of recognizable music can imply something of an endorsement by the recording artist for the candidate. I would expect this sort of thing occasionally crops up when a band's song is used as part of an ad campagin for a "questionable" product... but to some extent that's the risk of the standard ASCAP licensing system.

Because politics is such a special case, I think that ASCAP should not be permitted to sell a use license to political organizations/for political uses as part of their normal licensing. (Though if an artist wanted to opt to waive all reviews and let their music be licensed for 'any use' that would be ok.) Political use would then be reserved right for the recording artist, and if they approved then ASCAP could administer the usual licensing fee -- and if they didn't, the request wouldn't go through.
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