New Case By Notorious B.I.G. Estate May Finally Test Question Of Sampling Fair Use
from the about-time dept
We've written about Bridgeport many times in the past, as the quintessential example of a "sample troll." The company would acquire the copyrights to certain classic songs (sometimes by very questionable means) and then sue various musicians that sampled those classic songs in some manner. While the whole process has been sickening, the most troubling aspect of Bridgeport has to be the horrible ruling in Bridgeport Music, Inc. v. Dimension Films -- a ruling so ridiculous and problematic that it makes copyright nerds angry to even think about it. The district court said that the sampling in that case was not infringement, but the appeals court ruled that sampling was against the law, and made a bunch of claims that have no basis in copyright law. The most troubling line being:"Get a license or do not sample. We do not see this as stifling creativity in any significant way."The specific ruling was about whether or not the infringement should be rejected as being de minimis -- an integral part of copyright law that has made it clear that a tiny bit of copying is fine (note that this is unrelated to fair use). The court's argument against de minimis use was basically nonsensical:
"Even when a small part of a sound recording is sampled, the part taken is something of value."But whether or not it's "something of value" is not really the issue. Either way, the ruling was a key one in sending chills through the music world when it came to sampling. The court only addressed de minimis use, leaving aside the question of fair use in sampling, but almost no one has been willing to test fair use when it comes to sampling in court. One general theory is that almost everyone generally has "too much to lose" if the ruling comes out in a particular way. The recording industry, of course, tends to fight fair use at every turn, so even though the RIAA labels are the main beneficiaries of widespread sampling, they've had little interest in expanding fair use jurisprudence (and, in fact, constantly attack fair use as a concept).
So it's interesting to see a new sampling case hit the courts -- and one where both de minimis and fair use is being raised (this time, thankfully, not involving Bridgeport). The case involves the estate of Notorious B.I.G. filing for declaratory judgment that a particular sampling effort does not infringe. The estate is happy to admit that the song, "The What," released in 1994, included a "sample" from the song "Can't Say Enough About Mom" by Lee Hutson. But notes that it was clearly both de minimis and fair use:
On information and belief, the Recording merely samples two non-sequential tones from Can't Say Enough, and it has been adapted, modified, and supplemented substantially from its original form. The use has not violated any valid copyright interest held by Defendant, and it is both de minimis and fair use.The estate is also arguing that the attempts by Hutson to demand licensing fees is barred both by the statute of limitations and laches (i.e., waiting too long to file the claim). The statute of limitations issue comes up a bunch in music copyright cases, and it's a bit of a mess. Technically the statute of limitations is three years, but there's disagreement as to what that three years really means. Is it three years from the date the song was released? Or three years from when someone found out about the alleged infringement? Or, is it just from today going back three years to cover the "most recent three years" of infringement? It's entirely possible that the court might find that the statute of limitations or laches claims are enough to grant declaratory judgment, so there might not be a ruling about the de minimis or fair use issues. But it sure would be nice to have something other than the crazy Bridgeport ruling to point to when it comes to the question of sampling and copyright.
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Filed Under: de minimis use, fair use, lee hutson, notorious b.i.g., samples
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Wait, what?!
That was SERIOUSLY said in a court ruling?
...
No wonder it's been so hard to get people to understand copyright when you have laws that are confusing, courts that wouldn't know creativity if it bit them in the ass, and people treating Copyright, Trademark and Patents as Property, even though they're not.
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Typical copyright apologist, always wants more.
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You gain everything and lose nothing by allowing sampling-- or would you rather nobody make any more music at all as de minimis becomes so restricted that nobody can play a single note without being sued by a thousand "starving artists"?
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It also makes it taxable, which governments like.
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Fixed that for you.
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And the ones who believe that's a distinction are zealots, not artists.
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Do you know the phrase 'Logical Fallcy?"
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Really? Okay. I think most other people will take it as you not having a leg to stand on in this debate.
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This is not a matter of belief or hope.
I told you, I am for fair use, but not all uses are fair.
If you have any real reply that is not baked in bias or fantasy, please share them; otherwise, i don't really care what you say or think.
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And I have told you that the question of fair use and sampling is not as clear as you think it is. In fact, is has never even been fully addressed by the court. Why have you not responded to that point? Instead you still continue to pretend that your arguments are based in established fact and logic when, in fact, they are nothing of the sort.
If you have any real reply that is not baked in bias or fantasy, please share them
I've shared several. I've pointed out that fair use has not been determined for sampling -- you have not responded.
I've pointed out that the clear legal line against sampling is only binding in the 6th Circuit and not, in fact, universal copyright law -- you have not responded.
I've asked you in clear logical terms what freedom of yours is curtailed by other people having the freedom to sample -- you have not responded.
I've pointed out that a growing majority of people consider sampling and remixing to be a valid, important art-form -- you have not responded.
i don't really care what you say or think
I hate to break it to you, but I and anyone who values music stopped caring what you think way back when you claimed that samplers are not musicians, because all your opinions became uninteresting and invalid at that moment.
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Fair use is fair use. Its established. There are no new rules because it is sampling.
I've pointed out that the clear legal line against sampling is only binding in the 6th Circuit and not, in fact, universal copyright law -- you have not responded.
Reality and fact can be confusing. in fact, in my opinion, i see sampling as having zero impact on existing copyright laws galactic or even, universal.
I've pointed out that a growing majority of people consider sampling and remixing to be a valid, important art-form -- you have not responded.
In reality (not in fact), the majority of the people are unable to affect any fact, even though they really believe they can. sampling, It surely can be an artform as important as any other.
I hate to break it to you, but you have only proven biased knee-jerk reaction to something to do with sampling.
samplers can be musicians - Im not against sampling. but obviously, like any other art form, if you are not careful with plagiarism, you could get caught. And you don't get a break because it is an important new art form.
What is your knowledge of music?
I just got a sweet, 24 track, digital recorder, and a microKorg a few months ago. and I ran a recording studio in the earlier 80s. Plus I've played in several bands in and around san francisco. and songs I have written and recording, I could go on and on about music, and music theory. I don't think this argument is about music.
if they don't have a good fair use, instead of contacting the courts, why didn't they just contact whomever has the rights? (i really don't know the details here, perhaps that answer is obvious)
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Okay, now you're just exposing your total lack of legal knowledge.
Fair use is not a clear standard. In fact it is not even defined as a 'standard' at all in law. It is a defence that is raised once an infringement complaint has been brought, and its success is based on a four-factor test. Judges must consider every claim of fair use separately, and weigh the four factors, and there is nothing in statute that defines clear lines either within each factor test or within fair use as a whole. It is arguably the most subjective area of copyright law.
Reality and fact can be confusing. in fact, in my opinion, i see sampling as having zero impact on existing copyright laws
"Impact on"? Nobody said that. Sampling is a form of use that some are claiming is fair use and thus, like any and every other claim of fair use, it must be determined by a judge. No judge has made that determination so far.
When you claim that the law is clear and sampling does not qualify as fair use, and that that's an established fact, you are incorrect.
I know it's never fun to find out you are wrong about something, but I'm sorry, your understanding of fair use is very misinformed.
samplers can be musicians - Im not against sampling.
Earlier you stated: "The ones that hate it are samplers, not musicians" which I took to mean you consider the two to be mutually exclusive. Glad to know I misunderstood.
but obviously, like any other art form, if you are not careful with plagiarism, you could get caught
Further exposure of your total lack of legal knowledge. Copyright infringement has very little if anything to do with plagiarism. Or are you saying that you think sampling is fine as long as you give full credit?
What is your knowledge of music?
I just got a sweet, 24 track, digital recorder, and a microKorg a few months ago. and I ran a recording studio in the earlier 80s. Plus I've played in several bands in and around san francisco. and songs I have written and recording, I could go on and on about music, and music theory. I don't think this argument is about music.
Er, congrats? I have some great Korg gear too -- I especially love their recent line of throwback analog synthesizers. The Monotribe is lots of fun. I do most of my recording on a computer, with gear running through a Yamaha mixer and an Steinberg (aka Yamaha) DAW. I wasn't alive yet in the early 80s, but maybe that's why I'm not being all crotchety about the kids these days and their samples. Just a thought.
if they don't have a good fair use, instead of contacting the courts, why didn't they just contact whomever has the rights? (i really don't know the details here, perhaps that answer is obvious)
Um, because they believe they DO have a good fair use defence, which is why they are taking it to the court. Why don't you understand that? Fair use is something that can only be determined by a judge -- it's not a clear standard nor is it intended to be.
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and its success is based on a four-factor test. Judges must consider every claim of fair use separately, and weigh the four factors, and there is nothing in statute that defines clear lines either within each factor test or within fair use as a whole.
sounds straight forward to me.
It is arguably the most subjective area of copyright law.
thats the deal with plagiarism, You will always have increased exposure to legal risk.
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I am sorry, if that's not your argument.
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You have repeatedly avoid my response to your questions and still you attack.
wtf is your argument,
is it
People should be able to copy and sell anything for any reason?
or not
otherwise, stfu
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But, since you need to be handheld, I'll summarize. All I ask is that you read the entire summary and respond to it in full if you're going to respond, since so far you've been cherrypicking.
My argument is this:
1 - Fair use should be interpreted as permissively as possible (I can elaborate as to why I feel this is required according to the Constitution and the judicial and legislative history of copyright law if you so desire).
2 - Under a permissive interpretation of fair use, most if not all sample-based music would qualify as transformative (having a new "expression, meaning or message" according to the first factor) and be almost certain to qualify for a fair use exception to copyright
3 - Currently, no court in the US has thoroughly addressed the question of fair use as it pertains to sampling (this isn't "my argument", it's a fact)
4 - If you consider 1-3, the rest should be obvious: I believe the sampling in the B.I.G. song to be fair use, I am glad they are taking that defence to court, and I hope the judge shares my opinion (as many but not all have) that a permissive interpretation of fair use is vital to the constitutionality of copyright law
Is that clear enough for you? The last time I tried to provide detail, you responded with "yeah yeah yeah" -- I'm hoping you can muster up something of a bit more substance this time around.
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I don't think sampling requires special consideration or different standards. I don't think sampling is a game changer. (that is my opinion, and in these situations people can make a big deal about it)
#4 - it seems that your argument is that we need to change the 'guidance,' or refine it. It is true, i most likely don't know the details of the test as well as you, but in general, I am fine with the status quo - regarding fair use.
and honestly, I haven't heard the song, and I probably won't. From my arrogant troll height of 35,000 ft, im thinking, if someone want to press it and they hold an SR copyright on the original recording, fair use is going to be a tough sell.
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This is not a matter of "opinion". I explained earlier that fair use is not a clear standard -- it's an individual determination made by a judge about a given use. Not only does sampling require special consideration, every use of any kind that is claimed to be fair requires special consideration. Your opinion on the matter is irrelevant -- this is how copyright law and fair use work.
When I explained that before, you said "seems straightforward enough"... yet you are now denying that it's true.
I am fine with the status quo - regarding fair use.
There is no true legal status quo regarding fair use and sampling -- just an effective one in terms of how the industry operates. The B.I.G. lawsuit may open the question of what the legal status quo is. Does that make you uncomfortable? Are you denying that the estate has the same right to make a fair use defence as anyone else accused of copyright infringement?
That's what's happening. It's entirely possible that a judge in this or a similar case could say "sampling is protected by fair use" which would change huge segments of the music industry overnight. I guess you are afraid of that -- I welcome it.
Also, you should consider this when you talk about the "status quo": in the visual arts, courts have frequently found works of collage and appropriation art to be transformative and thus fair use. That's functionally more relevant to this question than any ruling that has so far been made about musical sampling -- so the status quo might not be as much on your side as you think.
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in that game, It is you on the wrong side. You are a Sample Troll using legal gamesmanship to steal from hard working artists!
RICO! RICO!
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in that game, It is you on the wrong side. You are a Sample Troll using legal gamesmanship to steal from hard working artists!
Eroding Fair Use isn't a real smart idea, regardless of which side you are on.
Fair Use helps keep copyright from running afoul of the First Amendment protection on Free Speech in the US.
Erode it too far and copyright in it's current form could be found unconstitutional. The First Amendment would trump the copyright clause because the First Amendment is very specific limitations of governmental power, whereas the copyright clause only states that "[...]Congress shall have Power To[...]" and isn't actually a requirement.
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@Leigh: Thanks for setting me straight about who is suing who, now I am rooting for the copyright troll.
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The whole foundation of human culture is based on copying other people, as without this copying there would be no common language and experience with which to understand culture.
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The only reason to care about someone else succeeding by using your work is... well.. there is no practical reason. Just the useless instinct of "but it's MINE and I don't like the idea of someone else profiting off my work!" -- but if their profit doesn't effect yours, if all their customers weren't lined up at your door before they came along, then what's being served except the most base and selfish pride?
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Not really 'useless.' Really, that is what copyright is all about. Its mine, so I don't want other people profiting off it. However, I am for fair use, it someone is writing critique or social/cultural commentary, ok, or even part of a commercial work (such as a documentary), BUT If your are going to embed a part of my song in yours (because it sounds cool), sorry, that's copyright infringement.
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No it's not. The stated purpose of copyright is to encourage the creation of new works. The monopoly grant is merely the method that is used to achieve that purpose, not the purpose itself.
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Too bad for you then -- you should work on having a friendlier, less greedy attitude. The purpose of copyright is not to encourage your creativity, it's to encourage creativity as a whole.
You're standing here saying that you only want to be creative if you are allowed to limit the creativity of others. I don't hear any samplers or remixers saying that. Thus I'm led to the only sensible conclusion: they are the ones with the greater respect for art and creativity.
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Uh, of course not, they depend on the fixed works of others, so they aren't going to be pro-copyright.
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Uh, of course not, they depend on the fixed works of others, so they aren't going to be pro-copyright.
Guess so. And I support them. They aren't the ones trying to limit anyone else's freedom -- you are. There's no way around that: they are arguing for permissiveness in creativity, and you are arguing that you get to be the arbiter of what is original and what has artistic value, and then use the power of the law to enforce that.
Are you really surprised that fewer and fewer people take your side?
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the samplers are riding on the backs of others. There's no way around that:
the samplers are arguing for allocating the creativity.
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Uh, what do you mean by that?
Anyway, answer me this simple question: if someone samples your work, what are you now unable to do that you were able to do before? My only requirement is that you define this in terms of a freedom that has been taken away from you, rather than an ability to limit someone else's freedom being taken away from you.
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You keep bringing this up. Please define fair use doctrine and how it can be applied in this situation so it works for everyone involved.
Is there a limit on how much of a track can be sampled a percentage, how many seconds, which part of a track can be used?
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Sorry, but that just sounds childish and unneighbourly to me.
I am for fair use, it someone is writing critique or social/cultural commentary, ok, or even part of a commercial work (such as a documentary)
Those are some of the most common forms of fair use, but hardly an exhaustive list. They common denominator of them all is the first-factor fair use standard of a "new expression, meaning, or message" -- and I don't see how sampling audio in the creation of an entirely new and different song fails to qualify.
BUT If your are going to embed a part of my song in yours (because it sounds cool), sorry, that's copyright infringement.
Well, in the 6th Circuit it is, and in any courts that follow that example it's likely to be -- but, sorry, no, the clear line of copyright infringement does not exist where you think it is. Also keep in mind that only the de minimis defence was rejected, not fair use. The degree to which sampling is covered by fair use is still a largely open question, just one that (sadly) hasn't been explored much since there's a lot of money being made by ignoring it (and mostly not by musicians, but by sample trolls like Bridgeport and Tuf America).
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Because, you don't start with a copy of something and end up with entirely new and different.
Understand now?
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Understand now?
Um, no, not at all. You're not being very clear or comprehensive, or really explaining yourself, or addressing any of the questions or counterpoints anyone has raised. You are, in fact, doing an abysmal job of making your point, because you are assuming that it's simply "obvious" to everyone that sample-based music is somehow uncreative and unoriginal. But, if you were paying any attention to what people here are saying at all, you'd realize that most of us don't think that's nearly as obvious as you do.
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then I humble request every artist and publisher go relinquish all modern technology and items, undergo a lobotomy and return to the caves from which humanity crawled.
Everybody is profiting of someones else work, EVERY day, EVERY year. Your education is based on the collective knowledge of those who came before, the technology you used is based on the collective ingenuity of all who came before AND all your art is a recombination of ideas of all who came before. Claiming those as yours and yours alone until the end of time should be a crime against humanity, because you take every day from the collective culture of mankind and refuse to give anything back.
YOU are the parasites, not the pirates.
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Copyright has never been about the artist, it has never been about artist profits.
It is because of greedy fucks like you that NO ONE respects copyright anymore.
Name one thing that you have created that has not taken liberally from those that came before you.
you can't.
You take from culture, but never give back. You are a parasite. You are a drain on society and it would be much better of without you and your kind.
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The court system is full of what'ifs and fanstay wonderlands. Well... ahem... so long as you have the money to turn it into one... sorry.
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...and often "it actually benefited them". I know I've certainly discovered songs through other songs that have sampled them, often by artists I'd never heard of or hadn't previously bothered delving into their back catalogues. Many of them received money from me, purely because another artist sampled them. Some were people who had recently recorded, some were people who hadn't recorded or released anything for a decade.
As ever, some in the music industry mistakenly believe that absolute control is what brings them success, while often the opposite is true.
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It gets worse. There are artists whose music consists entirely of notes used by other artists. Those doing the copying would say their arrangements are different enough from the originals to qualify as new works, but they're not fooling anybody: they're all using the same 12 notes and they know it!
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Most songs are amazingly similar to one another, using the same chords and chord progression (google Axis of Awesome's awesome music video 4 chord song.) Throw in the fact that we humans tend to forget where we got tunes from, and it is really surprising you don't have much more copyright infringement lawsuits for "the same music."
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Something of value is taken
Just how much value it has is a different question.
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The first paragraph is not serious, but hints at the question of whether the punishment fits the supposed crime.
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In the case of a music sample, how is the original removed from who has it? The "object" now exists as 2 things rather than 1.
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Did anyone think anyone from RUN D.M.C. could play guitar?
Or Fresh Prince and 'Parents don't understand'?
Anyone remember the 'Ice, Ice Baby' debacle?
No, how about the Beastie Boys (who is praised for sampling and having the nerve to complain about it when someone else uses their 'music'?
SMH...
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Two tones?
I'm confused.
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Composers have been sampling for 500 years, and nobody's career or creativity has been ruined by it.
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I think you have that backwards. The Biggie estate is suing pre-emptively for declaratory judgment that the sample doesn't infringe.
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Response to: Just Another Anonymous Troll on Apr 3rd, 2014 @ 12:52pm
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Should sampling be illegal? no.
but this small little example highlights the whole idiocy of this discussion.
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For musicians that use a guitar to make their music, they have not invented the guitar to do so. They are building on the backs of other people's work to make their own music.
You have 12 notes. You can not go about making music without repeating those notes in some form over and over. It was invented by Arnold Schoenberg in 1921. You can not tell me that the gazillions of songs that have been written and preformed since have not resulted in tons of copies of those same 12 notes. Copyright is so bogus in it's claims to gather enrichment for the few that no one can stand the idea of even bringing this up. No modern songs can be unique going by the 12 note scale. Pick any section of a song of 4 notes as #35 has mentioned their being a lawsuit over and you can not find a single song totally unique to qualify as an original worthy of copyright.
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Anyway, you're off base. You not thinking of the intervals, or rhythm. There are way more than 12 combinations of intervals, etc.. and Im not even mentioning natural tunings, etc...
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Thats a good point.
also, binary is only 1 note (or rest), and look at the combinations of art that can be produced. many may have blue - or red.
Popular music standards does constrain the posibilities, but performing your own instead of copying another's fixed performance seems unfair, except in certain situations (that COULD include commercial use). but not always, depending.
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you are a talentless good for nothing waste of space
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