HBO Issues Takedown For Artwork Made By Autistic Teenager Because Bullies Gonna Bully Y'all

from the takedowns-are-coming dept

Fri, Dec 9th 2016 10:42am — Timothy Geigner

It's well-known at this point that HBO guards its intellectual property on the Game of Thrones franchise more jealously than a direwolf with a freshly harvested bone. To that end, the company often times treats some of its biggest fans with disdain, such as when it killed off viewing parties that would otherwise generate more interest in the show, or the times it abused the DMCA process as a way to keep spoilers from the show from permeating. These actions are indeed annoying, but they lack a certain something in the pure evil department.

Unlike, say, HBO issuing a takedown on some art produced by a thirteen-year-old autistic child just because that art included a trademarked catchphrase from the show.

"My daughter, who happens to be autistic, was doing an art challenge called Huevember which consisted of doing a piece of art based on a different colour as you worked your way round a colour wheel," Jonathan Wilcox, of Edwinstowe in the UK, told The Register on Thursday.

"She was uploading her pictures to a variety of sites and sharing them on Facebook. For this particular piece, she decided to title it 'Winter is Coming.' I do not believe she uploaded the picture to RedBubble to make any particular financial gain, she just thought it a sensible place to put it."

So a child makes some art and puts it on the internet, because that's what you do these days. It should be noted that the artwork was not being sold on the site, only displayed. HBO's lawyers come across it and take it down, with nary a conversation. And, lest you think that the artwork itself had something to do with the show, thus ameliorating HBO's actions, here is the artwork in question.

As someone who watches the show regularly, the image doesn't appear to me to be in any way connected to the show. Nor, likely, is the text itself. It's far more likely that a child that created some art at a certain time of year came up with the phrase independently. But, because that phrase is trademarked by HBO, the takedown was issued.

The takedown notice forwarded by Redbubble to Wilcox doesn't specifically cite trademark as the law being applied, but it's the only one that makes sense. That means that the test in question is whether or not anyone is going to confuse this artwork as being created by or endorsed by HBO. And if you believe the answer to that question is "yes," then I'm surprised you're able to put your pants on in the morning. The whole thing seems to be confusing, because even though the DMCA doesn't apply to trademark law, Redbubble is clearly treating it as a DMCA takedown -- where it just replaced the normal "copyright" terms with "IP/Publicity Rights" -- and even uses its DMCA email address for any "counternotice." And the "counternotice" process is identical to a DMCA counternotice process, which requires the family to accept jurisdiction in California (remember, they're in the UK) if they counter the claim.

This is ridiculous on many levels, but once again highlights how the power of copyright to be a tool for censorship grows and expands and swallows other legal doctrines in the same neighborhood.

You can sense Wilcox's frustration in his comments.

"My first reaction to the letter was 'FFS.' HBO should get a life or stick something where the sun doesn't shine," Wilcox said.

"On further investigation, it appears HBO are doing this all over the place regarding this phrase. It seems to have upset a lot of people on Etsy and elsewhere who have had the same or similar letter."

This is the problem when large entities and their legal departments use the DMCA (or a quasi-DMCA-like) process like a shotgun, spraying censorious buckshot at many targets, only some of which might be truly infringing. This lack of legal nuance manages to catch innocent content producers in the crossfire -- in this case an autistic teenager who painted a picture. One wonders how the more virtuous heroes from the show would react.

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Filed Under: censorship, copyright, dmca, game of thrones, takedown, trademark, winter is coming
Companies: hbo, redbubble

55 Comments

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Not an Electronic Rodent (profile), 9 Dec 2016 @ 10:53am

Can we have another chorus of...
"Nothing is going to change until there's a penalty for wilfully getting a DMCA takedown wrong"?
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John Snape (profile), 9 Dec 2016 @ 10:54am

Do it everywhere
Maybe we can place "Winter is Coming" everywhere, and get thousands of takedown notices, and file a lawsuit to get the law changed.

Or...maybe not...
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ltlw0lf (profile), 9 Dec 2016 @ 10:57am

> "My first reaction to the letter was 'FFS.' HBO should get a life or stick something where the sun doesn't shine," Wilcox said.

A sentiment shared by nearly everyone else not paid by HBO or in the pocket of the "un-intelectual monopoly"/intellectual property ("we gots to collect it all") business.

It is a remarkable picture for the artwork of a 13-year old, and maybe this is an education for artists everywhere about how HBO and the "un-intelectual monopoly" business value their contributions to society. If you are making them money, you are a cow which shortly will be slaughtered for their taste/waste. If you aren't making them money, you are the dirt they walk on.
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Anonymous Coward, 9 Dec 2016 @ 11:11am

Re: Can we have another chorus of...
It is likely that the first human eye to actually see that claim was an employee of the recipient company. This pestilence could be much abated by requiring that somebody for the claimant, under threat of penalty for obvious mistakes, signs of that they have actually looked at the page for which infringement is claimed.
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I.T. Guy, 9 Dec 2016 @ 11:20am

Who the hell granted "Winter is Coming" as a trademark?
HBO sucks. I had it for a year and watched it 3 times.
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Anonymous Coward, 9 Dec 2016 @ 11:42am

They committed a felony when submitting this
The take-down demands state that they certify that they have reviewed the image and that it is infringing. Since they clearly could not have done so and found it infringing, it was done by bots and they should have all take-down rights and powers removed for five years. Oh, whats that, the only penalties are directed at the consumer with absolutely no punishment for filing false reports? Enjoy your destruction of freedoms America/
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Anonymous Coward, 9 Dec 2016 @ 11:48am

Re: They committed a felony when submitting this
"Enjoy your destruction of freedoms America"

Every Nation gets the government it deserves.
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Anonymous Coward, 9 Dec 2016 @ 11:50am

Re: Do it everywhere
actually, you can.

Xerox had this problem when everyone was referring to copiers in generic ways as Xeroxes... it truly does cause a risk to your trademark if the term becomes too general or generic.
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Anonymous Coward, 9 Dec 2016 @ 12:01pm

re: came up with the phrase independently
I'm sure the weather forecasters have been using this for centuries.
Also I really wonder about the BOT idea. The phrase was in the image so HBO would have to be OCRing every image looking for trademarked phrases.
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Anonymous Coward, 9 Dec 2016 @ 12:01pm

Re: Re: Do it everywhere
While HBO is a reasonable trademark, why should they be allowed to trademark the nnglish language by trademarking every work in a show title?
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One Nemesis (profile), 9 Dec 2016 @ 12:09pm

Re: Do it everywhere
Let's do it take a picture of something cold, or draw one or whatever and say"Winter is coming" post wherever you like even on HBO's page if you can. Heck, they might go broke trying to take them down.
Maybe we should all label the with something like "This is my picture (painting, drawing, art, etc) and has nothing to do with any thing else"

Go for it!
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One Nemesis (profile), 9 Dec 2016 @ 12:13pm

Re: Re: Do it everywhere
Not only Xerox but Kleenex and many others. If "Winter is coming" get used in many places and by many people, it will become generic and will lose its stupid trademark. I remember using this phrase years ago whenever it looked like Winter is coming!
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Anonymous Coward, 9 Dec 2016 @ 12:19pm

Next on the list of people to be sued...
...is George R. R. Martin.

He uses that phrase extensively in his books.
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Anonymous Coward, 9 Dec 2016 @ 12:28pm

Winter Is Coming
Makes me all the more happy with my choice to torrent and stream HBO content for free.
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anon, 9 Dec 2016 @ 12:28pm

Re: re: came up with the phrase independently
i believe the father is quoted as saying:
_she decided to title it 'Winter is Coming.'_
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Gracey (profile), 9 Dec 2016 @ 1:01pm

Re: Re: Re: Do it everywhere
Hopefully, someone with a sane mind will see that they lose the tradement.

The phrase is used constantly in the northern hemisphere ... it's simply part of many statements in this area. How can they be allowed to trademark a phrase which has existed for years, and that people use all the time (long before this show, or any thought of the show existed)?

Insanity.

This book was printed in 1873, with a poem titled "Winter is Coming" ...

https://books.google.ca/books?id=ERMtAAAAMAAJ&pg=PA100&lpg=PA100&dq=winter+is+coming& amp;source=bl&ots=hAG5ku4DgP&sig=6aISIYSoyiNV7E-QHjdiv8zLq-U&hl=en&sa=X&redir_es c=y#v=onepage&q=winter%20is%20coming&f=false

There's many references to winter is coming on the web and in old books, none of which have anything to do with some silly TV program. They shouldn't have been granted the TM to begin with.
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Anonymous Coward, 9 Dec 2016 @ 1:11pm

Brace yourselves,
Lawsuits are coming.
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ShadowNinja (profile), 9 Dec 2016 @ 1:12pm

Shouldn't George R R Martin own the trademark?
If anyone owns "Winter is Coming", shouldn't it be George R R Martin, who wrote Game of Thrones, and uses that slogan quite a bit in the books?
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ShadowNinja (profile), 9 Dec 2016 @ 1:15pm

Re: Next on the list of people to be sued...
Don't worry, he'll be inviting HBO's lawyers to one of his kid's or grandkid's weddings, where he'll settle the lawsuit by agreeing to give them 'appropriate' compensation.
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Anonymous Coward, 9 Dec 2016 @ 1:51pm

Re: Re: Do it everywhere
I find this really really odd... How can HBO have a trademark on "Winter is coming" when I've been using that phrase every year for my entire life? Not to mention the fact that HBO doesn't have trademark rights over the books, which published the phrase "Winter Is Coming" long before HBO used it.

And how on earth can they attempt to use a copyright-style takedown notice for trademark infringement?
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Anonymous Coward, 9 Dec 2016 @ 1:52pm

Re: Re: Do it everywhere
Even better: "HBO doesn't want people to know that Winter Is Coming"
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Anonymous Coward, 9 Dec 2016 @ 1:56pm

The one thing that came to mind when I read through the article (aside from HBO being evil again), was what the child being autistic has to do with anything in this case? It'd be just as bad if it were any child. I get that autistic children require special handling, but it's irrelevant here other than to appeal for an extra emotional response.
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Anonymous Coward, 9 Dec 2016 @ 1:56pm

Re: They committed a felony when submitting this
The takedown can't be a felony, as there is no takedown system for trademark, and the notice sent says nothing about copyright infringement.

It can be wire fraud however, as it crossed state lines.
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Anonymous Coward, 9 Dec 2016 @ 1:58pm

Re: Re: Next on the list of people to be sued...
Would that be a Republican or Democrat wedding?
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jupiterkansas (profile), 9 Dec 2016 @ 1:59pm

Re: Re: Re: Re: Do it everywhere
*They shouldn't have been granted the TM to begin with.*

And that's the problem right there.
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Anonymous Coward, 9 Dec 2016 @ 1:59pm

Re:
It would also be the same if it was Bill Gates who wrote it.
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Anonymous Coward, 9 Dec 2016 @ 2:03pm

Re: Re: Re: Re: Do it everywhere
"They shouldn't have been granted the TM to begin with."

No, I disagree. There's nothing wrong with such a trademark. The key is how it is enforced.

For example, we have Dove brand soap and Dove brand chocolate. Soap and chocolate do not compete with each other, and neither one will issue a takedown if a kid draws a picture with the word "Dove" on it.
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Anonymous Coward, 9 Dec 2016 @ 2:13pm

Is it really from HBO?
Hang on a second. Do we know that HBO even issued an actual takedown request? This was the start of Redbubble's letter:

"We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy:"

Note that it says, in response to PAST complaints. Is it possible that Redbubble looked at some previous complaints from HBO about other works (which may or may not have been infringing), and said to itself, we'll be proactive and just take down everything with that title?
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Anonymous Coward, 9 Dec 2016 @ 2:28pm

"Winter is Coming" is trademarked, copyrighted, or whatever? I have only one thing to ask:

WHO WAS THE DUMB FUCK WHO APPROVED THAT ONE?

That phrase is as generic as it comes. If I create a sign and post it in my front yard that says "Winter is Coming" then HBO can sue me?

That is a common generic phrase that is descriptive of a day of the season. It's like saying "spring is coming" when it really is coming. WTF?
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Groaker (profile), 9 Dec 2016 @ 2:32pm

What does HBO use the phrase "Winter is coming for?" If it is for a title, then there is no infringement because titles are no longer required to be unique. If it is not a title, then there can be no confusion.

If they trademark "Winter is coming" can I hold them liable for all the damage done by Winter, the additional cost of heating, clearing snow and the increase in the price of produce? If, as it appears this year that winter is not coming, can snow based resorts sue them for lost profits?
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Anonymous Coward, 9 Dec 2016 @ 2:39pm

Home Borked Office
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Anonymous Coward, 9 Dec 2016 @ 2:48pm

Re:
You're allowed to trademark a generic slogan. Nike has Just Do It. McDonald's has I'm Loving It. Etc.

The problem only comes in when you try to control every use of the phrase.
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Anonymous Coward, 9 Dec 2016 @ 3:07pm

Re:
duh...what are you, a bot?
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Anonymous Coward, 9 Dec 2016 @ 3:09pm

Re: Is it really from HBO?
"Note that it says, in response to PAST complaints. Is it possible that Redbubble looked at some previous complaints from HBO about other works (which may or may not have been infringing), and said to itself, we'll be proactive and just take down everything with that title?"

,,, and that's not a problem too?
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Anonymous Coward, 9 Dec 2016 @ 3:30pm

Re: Re: Is it really from HBO?
It's certainly problematic, but if my speculation is indeed the truth, the problem lies more with Redbubble than HBO.

I mean, the problem lies partially with Redbubble anyway even if HBO did indeed issue a takedown request. They should stand up for their users, and the DMCA doesn't even apply to trademarks so I don't think they have the normal excuses. But if they did this *on their own*, that rises to a whole new level.
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Winter is coming, 9 Dec 2016 @ 3:59pm

Sumer is icumen in
l'hiver arrive
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Rapnel (profile), 9 Dec 2016 @ 4:12pm

"use legal access" "don't pirate" "artists will suffer" "industry will die" "you're stealing" "my words"

Welcome to the yard where bullies make the rules. "Fuck you. you can't play here."

At least they haven't had to innovate very much. There's that money saved.

Fuck the culture ownership culture. Eat a dick.

Winter is coming. Oh, it is, it really is. You can count on it.
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Gracey (profile), 9 Dec 2016 @ 6:19pm

Re: Re: Re: Re: Re: Do it everywhere
I suppose that's true, but in this case ... what exactly whas trademarked? A phrase with 3 words in it.

Funny that though ... I checked my gmail account tonight and the first email was titled "Winter is Coming" ... and it contained an updated game from G5 games (not related to the Game of Thrones).

The use of the phrase is all over the web, and doesn't appear to have generated any angst (so far) from HBO, so it seems odd they would have picked on a child's drawing which appears to be unrelated to the show in any way.

Doesn't make sense, but the full story isn't always what we see either.
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Gracey (profile), 9 Dec 2016 @ 6:25pm

Re: Re: Re: Is it really from HBO?
"Redbubble". Yeah, I have an account there (have since they opened) and have had images removed (my own work) for infringement where there was none.

I stopped uploading there a few years ago.
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Anonymous Coward, 9 Dec 2016 @ 11:54pm

Re: Re:
Yes they are generic in terms of there generic phrasing but are specifically for specific contextual based things. "Just Do it" could mean just do ANYTHING but is about sport in conjunction with using NIKE products. "I'm loving it" again is specific about loving a food (McDonalds). It's about the specific identifying adjective (Love, do).

Whereas "Winter is coming" has a specific noun that is ALREADY Generic and describes one particular season where there are only 4. Just because some writer states it in a book about WINTER does not give them the right to have it trademarked at all because it will ALWAYS be about Winter no matter what way they try to spin it.

It would be like Microsoft trademarking "Windows are open" it means nothing and everything.
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G Thompson (profile), 10 Dec 2016 @ 12:42am

Re: Re: Re:
Ack!!! Forgot to log in.
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nasch (profile), 10 Dec 2016 @ 8:40am

Re: Re: Re: Re: Re: Do it everywhere

No, I disagree. There's nothing wrong with such a trademark.

There is something very wrong with such a trademark, because now any time anyone wants to use the phrase "winter is coming" in a work of fiction they are at risk of legal action from HBO. They have taken a normal part of the English language and claimed it as their own.
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nasch (profile), 10 Dec 2016 @ 8:49am

Re: Re: Re: Re: Is it really from HBO?
This is certainly terrible publicity for Redbubble.
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Anonymous Coward, 10 Dec 2016 @ 10:54am

Think of the autistic. Copyright is only helping them. /s
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art guerrilla (profile), 10 Dec 2016 @ 4:25pm

Re: Re: Re:
apples are shiny...

(also, really like her artwork style, pretty cool...)
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mhajicek (profile), 11 Dec 2016 @ 5:42am

Re: Re: Re:
- "Just Do it" could mean just do ANYTHING

Yeah, now I'm imagining a Nike sponsored suicide hotline.

But seriously, if simple three word phrases can be trademarked after prior art and defended like this, why don't we trademark some key phrases in the DMCA takedown notice and then litigate them every time they issue one?
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Anonymous Coward, 11 Dec 2016 @ 2:59pm

Re: Re: Re: Re: Re: Do it everywhere
Paying the person deciding trademark several 10s of thousands of dollars in unmarked bills goes a LONG way towards getting you any trademark you want
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Wyrm (profile), 11 Dec 2016 @ 3:53pm

Re: Re: Re: Re: Re: Re: Do it everywhere
No, in itself that's OK.
The problem is the abuse that you describe. A trademark doesn't prevent others from using the expression. It only prevents using it as a brand. At least in theory.
And that lead to lots of stupid abuse that have been occurring over and over again.
- suing anyone for just using the trademarked expression, whatever the context is.
- protecting parts of a copyrighted work as a substitute for copyrighting this small part by itself. (Which is a way to vaguely claim "infringement on IP" for what would otherwise be an obvious fair use.)
- extending "copyright" beyond its time limit.

And so on.

Trademark is not necessarily the enemy. As with many other systems, abuse is the enemy.
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nasch (profile), 11 Dec 2016 @ 7:00pm

Re: Re: Re: Re: Re: Re: Re: Do it everywhere

No, in itself that's OK. The problem is the abuse that you describe.

Yes, but given human / corporate nature, when the system is set up to make abuses easy, they are guaranteed to happen. So given the way the system works today, allowing a trademark on "winter is coming" is in itself problematic because it invites abuse. To avoid the abuse, the trademark system needs to be reformed in some way, whether that's to make it easier to dismiss invalid lawsuits, harder to get stupid trademarks, or something else.
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Andy, 12 Dec 2016 @ 2:35am

Re: Can we have another chorus of...
Sue them in the UK as the content was created in the UK. And with the way the laws protect the slightly disabled in the UK it will most definitely go his way and if he has a good lawyer he will be able to claim compensation , possibly a lot of compensation in the UK not in California where the courts have absolutely no right to hear a case.
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Jigsy, 12 Dec 2016 @ 3:52am

Takedowns are coming...
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Wendy Cockcroft, 12 Dec 2016 @ 7:48am

Re:
Just stop watching their stuff. It's too damn predictable these days: explicit sex, incest, rape, profanity, rinse and repeat.
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John85851 (profile), 12 Dec 2016 @ 3:55pm

Re: Do it everywhere
Let's just hope and pray that the takedown bot finds the phrase on HBO's official YouTube channel, issues a takedown notice, and YouTube removes all of HBO's promotional videos.
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Frozen Njal (profile), 13 Dec 2016 @ 3:21am

Re: Re: Re: Next on the list of people to be sued...
I'd be more worried about Red or Purple.
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Frozen Njal (profile), 13 Dec 2016 @ 3:23am

Re: Sumer is icumen in
Cuckoo!
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