Author Claims Copyright Over Interview He Gave 20 Years Ago

from the that's-not-how-copyright-works dept

Mon, Oct 21st 2013 8:55am — Mike Masnick

A bunch of folks have alerted me to this bizarre story of author Bill Bryson, known for his "humorous books on travel," along with his publisher Transworld (a division of Random House), who are apparently claiming that Bryson holds the copyright on an interview he gave 20 years ago to Mike Gerrard, who published it in the literary magazine Passport (where Gerrard was the publisher). Thinking people might be interested in that interview, Gerrard (smartly) dusted it off and republished it as a Kindle e-book (it sounds like a Kindle Single, but that's not made clear anywhere). Amazon has since taken the book down. No one seems to have published the actual takedown letter from Transworld, but the initial story on it does say it's a copyright claim:

According to Bryson's publishers Transworld, a division of Random House, you may not. Transworld wrote to Gerrard stating that Bryson did not authorise additional publication of the interview, or sale as an e-book beyond the contemporaneous interview for the magazine.

Furthermore, Transworld's lawyers argue that Bryson remains the owner of the words spoken by him.

That last line is not true. As plenty of people have pointed out, if that were true, it would basically make journalism impossible, because anyone who didn't like a quote could demand it be taken down. That's not how copyright law works.

Furthermore, Gerrard has been pointing out repeatedly that many of Bryson's own books involve him quoting others, and jokingly wonders what would happen if one of those people sought to claim copyright on one of Bryson's books. From the initial story in World Travel Market (linked above), it appears that Gerrard is willing to fight back over this claim. He's talking to lawyers to better understand what he can do.

Of course, Gerrard oddly quotes a US legal precedent against having a copyright in your own words, but it appears that both he and Bryson are based in the UK, so I'd imagine that any legal discussion would be under UK law which, tragically and stupidly, doesn't have fair use like American law has. Still, it does have fair dealing, though that should only come into play if Bryson has a legitimate copyright interest in his spoken words, and that seems unlikely -- though, having some UK copyright experts chime in would be nice. From a quick glance, it looks like there's no legitimate copyright interest here, and even if there was, there would either be a fair dealing defense for the purpose of journalism, or an implied license or some sort in the granting of the original interview.

Either way, it seems like yet another attempt to abuse copyright law for censorship, rather than any legitimate purpose.

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Filed Under: bill bryson, copyright, interviews, mike gerrard
Companies: amazon, random house, transworld

42 Comments

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Reader Comments

The First Word

“

Bill Bryson Interview

As the author of the interview I've seen this reported in several places but this is the most interesting discussion thread I've seen.

Just to explain things further, I am now a resident alien of the USA, the ebook was published in the USA by Amazon, but is available in the UK. Now, Amazon in the USA accepted a communication from Bryson's lawyers in the UK telling them that the ebook was in breach of copyright (I'm assuming this as I didn't see the communication) and on the basis of that communication removed the book from sale without consulting me or give me or my lawyer a chance to reply. Obviously Amazon assumes that if a lawyer at Random House says something is true then it must be true, with no further need to investigate.

One possible consequence of this is that if Random House's claim proves not to be true, I would have claim against them for defamation and loss of earnings.

From the researches I have done, it seems that according to cases that have come to court in the USA, I would be in the right. See, for example:
http://www.leagle.com/decision/19811725521FSupp1204_11600

If someone speaks to a journalist on the record then they must expect their words to be disseminated and not protected by copyright law.

In the UK there don't seem to be any equivalent cases, and the copyright law on the spoken word is a little more hazy.

But it's clearly a case of the big boys agreeing with each other, and the little guy doesn't stand a chance. The legal decision will go to whoever is rich, not whoever is right.

When I republished the interview it never even occurred to me that I could be doing something wrong. I don't think I have done anything wrong, and I will continue to fight the case.

Thanks to everyone, whether they agree with me or not, for their stimulating contributions.

—Mike Gerrard

”

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Anonymous Coward, 21 Oct 2013 @ 9:09am

I don't think this one was done as censorship. This is obviously a money grab.
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John Fenderson (profile), 21 Oct 2013 @ 9:13am

Fixed form
Perhaps I misunderstand, but I thought copyright only kicked in when you put the work into a fixed form. Simply speaking is not putting the work into a fixed form at all. The words were written down, but not by the speaker, so the copyright would be to the author of the final piece, not to person being interviewed.
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Anonymous Coward, 21 Oct 2013 @ 9:18am

Re: Fixed form
Perhaps I misunderstand, but I thought copyright only�

�so I'd imagine that any legal discussion would be under UK law� �� Mike Masnick
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Michael, 21 Oct 2013 @ 9:26am

so I'd imagine that any legal discussion would be under UK law

And I would hope that legal discussion does not involve using words that others have previously spoken, or they could be in serious trouble too.
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Boojum (profile), 21 Oct 2013 @ 9:40am

The only way I could see the person speaking as having the copyright on what was written was if he had a contract with the journalist saying so. I HAVE seen that in the past, where a person talks with a writer with the agreement that it is for a specific article or publication and that the speaker get's the copyright. But that is only the case when a specific contract that both party agreed to says it.
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Anonymous Coward, 21 Oct 2013 @ 9:41am

Re:
Not sure you can separate these things.
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Anonymous Coward, 21 Oct 2013 @ 9:44am

Re: Re: Fixed form
Look up TRIPS. That would give at least some indication of what UK law can be in that area (UK is a party to TRIPS).
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Anonymous Coward, 21 Oct 2013 @ 10:05am

By the authors logic, the Interviewer can claim copyright over his/her words also. Therefore the author cannot re-publish the full interview either.
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Anonymous Coward, 21 Oct 2013 @ 10:13am

Re:
By the authors logic�

Fortunately, even under the English system, and even under the modern system in the UK, courts of law are not courts of the authors' own logic.

�

�

That's why they're called law courts: The king could have called them logic courts, but that would be wrong.
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SeanSatori (profile), 21 Oct 2013 @ 10:16am

Re: Fixed form
That is basically correct. What I don't get from this is whether this was a spoken word inteview that was transcribed by Gerrard (in which case copyright exists only for Gerrard), or whether this was a written interview, in which case both of them would be co-authors. Either way, as an author or as a co-author, Gerrard would still have the ability to use, sell, and license the work as he wishes.
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Manok, 21 Oct 2013 @ 10:21am

C'mon! You write about this stuff daily! You know the copyytight is "life + 120 years". Is this guy even dead already?

I didn't think so!
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DanZee (profile), 21 Oct 2013 @ 10:31am

Amazon is US company
The lawyer may be using the theory that the ebook was published through Amazon, which is a US company, and so is quoting US law. But it's difficult to tell. A lot of lawyers will do anything their client asks them to do, even when they know there's no legal precedent for it, such as all the takedown notices some companies send out.
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Mark Gisleson (profile), 21 Oct 2013 @ 10:35am

A good writer but too full of himself
For those who don't know Bryson, his breakout novel, "A Walk in the Woods," was based on his hiking the Appalachian Trail with a high school buddy. Yes, Stephen Katz was a real person. It's not clear if Bryson has any documentation from "Katz" allowing him to freely recount their trip.

All you really need to know about Bryson is that he was born and raised in Des Moines, Iowa, but now speaks with a British accent.
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Anonymous Coward, 21 Oct 2013 @ 11:12am

Those birds recorded for all those bird sounds put on tape are all flying around looking for an attorney today.
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Michael, 21 Oct 2013 @ 11:17am

Re:
Bird-brains represent themselves.
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Bengie, 21 Oct 2013 @ 11:42am

Re:
This AC has repeated words that I have said before. Please remove.
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mattshow (profile), 21 Oct 2013 @ 12:44pm

Re: Fixed form
The Berne Convention allows countries to have a "fixation" requirement in their copyright laws. The UK doesn't appear to have explicitly adopted one in their Copyright Act (and the definition of "literary work" means "any work, other than a dramatic or musical work, which is written, spoken or sung".

Of course, that doesn't mean there isn't a UK case where a court has read a fixation requirement into the law. Anyone aware of one?
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Anonymous Coward, 21 Oct 2013 @ 12:44pm

Re: Fixed form
In the absence of an agreement to the contrary, the copyright belongs to the person who contributed the original expression.

In other words, if I come up with a one-man monologue, it doesn't matter if I have my friend push the record button when I record it. I am still the author and copyright owner.

One particular issue here is the possibility that either the interviewer and interveiwee created a joint work and are joint authors and copyright owners.

Contrary to Mike's wishful thinking (stated as fact), interview subjects don't automatically give up copyright in their words simply by being interviewed.

They do impliedly (or expressly in some cases) grant a license to use their words, but it sounds like the scope of the license is contested in this case.
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mattshow (profile), 21 Oct 2013 @ 12:46pm

This bums me out because I really like Bill Bryson's books. Down Under/In A Sunburned Country is one the best (and funniest) travel books I've read.
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mattshow (profile), 21 Oct 2013 @ 12:51pm

Re: Re: Fixed form
I guess to be accurate, it's the Copyright, Designs and Patents Act.
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John Fenderson (profile), 21 Oct 2013 @ 1:27pm

Re: Re: Fixed form
In the absence of an agreement to the contrary, the copyright belongs to the person who contributed the original expression

As it turns out, this isn't as clear-cut as you're making it out to be. Let's look at the issue of copyright and interviews specifically (I've done a little researching now).

The answer is "this is a gray area". From here: http://www.rightsofwriters.com/2011/01/who-owns-interview.html

But who is the copyright owner of the resulting give and take of questions and answers? The interviewer who formulates the questions? (That's basically where the Taggart v. WMAQ case came out, as summarized by the Henderson & Sturm law firm here.) The interviewee who provides the answers, which typically form the core of what readers are really looking to read in interviews? (That seems to be what Suid v. Newsweek implies.) Or do the interviewee and interviewer create a kind of compilation in which each has an ownership interest in his or her separate contribution? (That appears to be the position taken in Quinto v. Legal Times and in Section 317 of the Compendium II of the Copyright Office Practices.) Or is the interview a "joint work" where the interviewer and interviewee both have a copyright interest in both the questions and the answers. (That's the default assumption of leading copyright scholars William Patry and Paul Goldstein.) And, when a work is recorded, does some third party, such as a videographer own the recording? (Very often, yes; see Taggart again.) Finally, when the interview is conducted as part of the interviewer's or interviewee's employment, the employer(S) may own some or all of the interview as a work for hire.
[ link to this | view in thread ]
Mike Gerrard (profile), 21 Oct 2013 @ 1:38pm

Bill Bryson Interview
As the author of the interview I've seen this reported in several places but this is the most interesting discussion thread I've seen.

Just to explain things further, I am now a resident alien of the USA, the ebook was published in the USA by Amazon, but is available in the UK. Now, Amazon in the USA accepted a communication from Bryson's lawyers in the UK telling them that the ebook was in breach of copyright (I'm assuming this as I didn't see the communication) and on the basis of that communication removed the book from sale without consulting me or give me or my lawyer a chance to reply. Obviously Amazon assumes that if a lawyer at Random House says something is true then it must be true, with no further need to investigate.

One possible consequence of this is that if Random House's claim proves not to be true, I would have claim against them for defamation and loss of earnings.

From the researches I have done, it seems that according to cases that have come to court in the USA, I would be in the right. See, for example:
http://www.leagle.com/decision/19811725521FSupp1204_11600

If someone speaks to a journalist on the record then they must expect their words to be disseminated and not protected by copyright law.

In the UK there don't seem to be any equivalent cases, and the copyright law on the spoken word is a little more hazy.

But it's clearly a case of the big boys agreeing with each other, and the little guy doesn't stand a chance. The legal decision will go to whoever is rich, not whoever is right.

When I republished the interview it never even occurred to me that I could be doing something wrong. I don't think I have done anything wrong, and I will continue to fight the case.

Thanks to everyone, whether they agree with me or not, for their stimulating contributions.
[ link to this | view in thread ]
Anonymous Coward, 21 Oct 2013 @ 2:05pm

Re: Bill Bryson Interview
In the UK there don't seem to be any equivalent cases�

Your research may be inadequate.

There's a 1999 Canadian opinion which contrasts the U.K. and U.S. precedents, and concludes that Canada remained more aligned with the U.K.
Under Anglo-Canadian case law (namely Express Newspapers plc v News (UK) Ltd, and Gould Estate v. Stoddard Publishing Co.), as far as private interviews are concerned, it is the person who reduces the oral statements to a fixed form that acquires copyright therein.

Not sure whether this is still good law in Canada.
[ link to this | view in thread ]
Mike Gerrard (profile), 21 Oct 2013 @ 2:06pm

Re: Bill Bryson Interview
One other thought. Many of Bill Bryson's books include quotations of things people said to him. In his travel books these are frequently used to make fun of people, and I assume he doesn't ask their permission to quote their words.

In his more serious books, like Shakespeare, he interviews Shakespeare scholars and quotes them. They must give their permission at the time, just as Bryson gave his permission to me 19 years ago to interview him, but if they later withdrew their permission, as Bryson is now doing to me, surely Random House would have to withdraw the book from publication as it breached other people's copyright.

In other words, if Bryson also has to abide by the claims he is making against me, he would have to withdraw some of his books from publication if anyone objected. I'm taking a stance against this for your sake, Bill, as a writer yourself.
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Anonymous Coward, 21 Oct 2013 @ 3:44pm

Re: Bill Bryson Interview
the ebook was published in the USA by Amazon, but is available in the UK

� Where did the 1994 interview take place?

� In what nation was the 1994 interview in Passport magazine first published?

� Was the edition of Passport magazine in which the interview was first published, a �United States work� as that term is used in 17 U.S.C. � 411?

�

I am now a resident alien of the USA

� At the time the 1994 interview took place, was any person involved in that interview a national of the United States or domiciled in the United States?

� At the time the 1994 interview was first published in Passport magazine, was the interviewee a national of the United States or domiciled in the United States? At that same time of first publication, were the interviewer or the publisher nationals of the United States or domiciled in the United States?
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Jake, 21 Oct 2013 @ 10:39pm

Well, that's a bloody damned shame. I like Bill Bryson's work and have read and enjoyed almost everything he's published, and I'll be really upset if it's confirmed that he actually consented to this; note the fact that lawyers working for his publishers are the ones who got on Mr Gerrard's case, not the man himself. I'm giving Bryson the benefit of the doubt for now because he's a career journalist himself and would almost certainly know better.
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Sheogorath (profile), 21 Oct 2013 @ 10:42pm

Re: Bill Bryson Interview
Mike Gerrard said: In the UK there don't seem to be any equivalent cases, and the copyright law on the spoken word is a little more hazy.
Actually, UK copyright law is pretty clear on the fact that copyright exists from the moment something is fixed into tangible form and if you don't record it in some way, you can't then claim copyright on it. Since you did the former and Bryson failed to do the latter, you are 100% in the right on this. Basically, if it's an unfixed work, it's not copyrighted. If the work is fixed, then the one who is responsible for the fixation is the copyright owner, no one else. That's why record companies are more often copyright owners than the artists who perform the music. I can tell you this as an Autistic auto-didact cognoscente of UK copyright law.
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Mike Gerrard (profile), 22 Oct 2013 @ 12:06am

Re: Re: Bill Bryson Interview
Thanks for those questions. The interview took place in the UK, and at that time I was a UK citizen and UK resident.

Bill Bryson is, of course, American, but at that time was living in the UK. He is a US citizen but I would imagine (I don't know for sure) that at the time of the interview, as he had been living in the UK for a number of years, he had dual citizenship.

I assume from your questions you're thinking UK law would prevail.
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Mike Gerrard (profile), 22 Oct 2013 @ 12:10am

Re: Re: Bill Bryson Interview
Sorry, you also asked about the status of the magazine. Passport was a UK publication and I was also the co-publisher and co-editor, as well as doing this interview with Bryson.
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Mike Gerrard (profile), 22 Oct 2013 @ 12:18am

Re: Re: Bill Bryson Interview
Thanks for that comment, which is what I assumed all along. Bryson would have little idea what he said that day if I hadn't written it down, and of course the interview only includes what we discussed that was relevant to his writing. Private chat about family matters was omitted, and the interview shaped into a more logical order.

It took two days of my time (and expenses) to travel to his village, stay overnight nearby, meet him the next morning, and then the time it took me to write the interview from my notes.

Now if only I could get one of my legal advisors to come out and say it as simply as you did! I'm still waiting on their verdicts.
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Anonymous Coward, 22 Oct 2013 @ 2:29am

I'm copyrighting an old fart of mine.
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Pragmatic, 22 Oct 2013 @ 3:37am

Re: Fixed form
The words were written down, but not by the speaker, so the copyright would be to the author of the final piece, not to person being interviewed.

...which would be Mr. Gerrard, right?
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Anonymous Coward, 22 Oct 2013 @ 6:40am

Re: Re: Re: Bill Bryson Interview
I assume from your questions you're thinking UK law would prevail.

Assuming, without deciding(*), that copyright properly subsists in the fixated copy of the interview, then, based on the limited facts elicited so far, it appears to me that the United Kingdom has a superior interest in the application of UK law to the ownership of that copyright.

In the U.S., ownership and transfer of a copyright (apart from subsistence of that copyright) is quite often determined by contract. Contracts usually tend to be governed by the law of the various states.

You have stated that a UK citizen, living in the UK, conducted an interview of someone at that person's home in the UK. The interview was then published by a UK magazine. Why would the legislature of California or the legislature of New York have an interest in the terms of the interview?�an interest superior to the UK Parliament?

�

(*) The parties apparently do not contest whether copyright subsists in the fixated copy of the interview. Nevertheless, under U.S. law, as Justice O'Connor stated in Feist, �Originality is the sine qua non of copyright.� A person who is not the author of some expression does not obtain a copyright in the U.S. by mere publication of that expression. And no one owns a copyright in basic facts.
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Mike Gerrard (profile), 22 Oct 2013 @ 6:50am

Re: Re: Re: Re: Bill Bryson Interview
Thanks for those thoughts, much appreciated. The only reason US law might be relevant is that the republication of the interview was on Amazon, a US-based company. I have been told that courts in copyright cases do tend to look at the situation in other countries, even if there is nothing binding about the cases. They simply take them into account.
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Ben Challis, 22 Oct 2013 @ 7:40am

Bill Bryson Interview
For those interested, I am a UK copyright lawyer - but I actually picked this up from a report in the Australian press. Anyway it fascinated me as both this and the recent YouTube takedown note from by a video games developer to block an unfavourable review made me think about 'inappropriate' uses of copyright law. Anyway I blogged on this from a UK perspective (I am not sure there IS any good law on this matter) and you can find that here on the 1709 copyright blog- "Bryson claim puts free speech in focus" http://www.the1709blog.blogspot.co.uk/2013/10/bryson-claim-puts-free-speech-in-focus.html
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Anonymous Coward, 22 Oct 2013 @ 9:50am

Re: Re: Re: Fixed form
I agree that resolution of the question will depend on the particular facts of each case, and it could turn out differently in different cases (which, of course, is in direct opposition to the position stated as fact by Mr. Masnick).

The summary of the Taggart case in that article is consistent with my statement that the person (or persons) who contribute original expression are the authors and copyright owners. The court in that case simply thought that there was no original expression contributed by Taggart. I find that a dubious proposition, given the low bar for "originality" in copyright law, but it's a factual question that each court will have to resolve in each case.

A videographer owning a copyright interest (also from Taggart) is consistent with the notion that the person who contributes original expression (e.g., lighting choices, angle choices, etc.) owning a copyright interest. My example of someone simply pressing the record button was intended to show someone making not creative choices and contributing no original expression.
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Anonymous Coward, 22 Oct 2013 @ 9:52am

Re: Bill Bryson Interview
"Obviously Amazon assumes that if a lawyer at Random House says something is true then it must be true, with no further need to investigate."

That is by no means obvious. Rather, Amazon has a policy to take down material accused of copyright infringement upon receipt of a request meeting certain criteria, and gives its users the option to submitting a counternotification. Your attorney(s) should really be telling you this stuff.
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Mike Gerrard (profile), 22 Oct 2013 @ 10:08am

Re: Re: Bill Bryson Interview
Amazon did not give me the opportunity to submit a counternotification. They told me the book had been taken down, and they would take no further part in the discussion. It was up to the two parties to resolve the issue. They made it clear that the only way they would put the ebook back on sale was if Random House withdrew their claim.
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John Fenderson (profile), 22 Oct 2013 @ 10:31am

Re: Re: Re: Re: Fixed form
Since interviewers direct and control the conversation, I would say they add a lot of creative decisions and original expression. Not to mention the creativity and expression added in editing.
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Anonymous Coward, 22 Oct 2013 @ 7:13pm

Re: Re: Re: Re: Re: Fixed form
Sure. I think interviewers would almost certainly add original expression. But that is not exclusive with the interviewee adding their own (which is why I think it is likely they would be joint authors in many situations).
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Anonymous Coward, 22 Oct 2013 @ 7:22pm

Re: Re: Re: Bill Bryson Interview
That is certainly a surprising move. Sorry to have been too presumptuous in my prior comment.
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Mike Gerrard (profile), 23 Oct 2013 @ 12:02am

Re: Re: Re: Re: Bill Bryson Interview
No, thank you for your thoughts and valuable insights into the situation. Very much appreciated.
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