It seems to me that it very well could be “public” within the meaning of Sections 101, which provides: “To perform or display a work ‘publicly’ means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered . . . .” An event attended by many of one’s neighbors could comprise “a substantial number of persons outside of a normal circle of a family and its social acquaintances.” My street recently had a block party, and I met a substantial number of people I didn’t already know. That was the point of the party. Whether it's "public" here would appear to turn on how broadly one defines "social acquaintances."
The next point is a really common one -- that was used to block fair use in the UK (and was also brought up in Australia when that country moved towards fair use last year) -- saying that because fair use in the US relies heavily on common law/case law, it's basically impossible to implement anywhere else. However, as Matt Schruers explains in a wonderful blog post over at the Disruptive Competition Project, that makes no sense at all:
Another argument that Manne offers against encouraging balanced copyright abroad is that civil law countries cannot interpret principles like Section 107-style fair use, which are informed by common law. Legal scholars may disagree (see n.25), pointing out that civil law countries are perfectly capable of, and often do consult prior case law, not for precedent, but for its interpretive value.
In fact, civil law countries have long wrestled successfully with open-ended principles in international agreements. For example, copyright’s idea/expression dichotomy is similarly developed by common law, and yet we’ve inserted that into the TRIPS Agreement and the WIPO Copyright Treaty, both of which have numerous civil law signatories. If inserting principles interpreted through common law into trade agreements would cause the international IP system to grind to a halt, it would have happened twenty years ago.
The condescension towards the idea that countries can't figure out their own ways to apply fair use is really ridiculous. The US figured it out, and other countries can as well, even if they're civil law countries.
Manne's argument is that civil law systems shouldn't have open-ended, multi-factored balancing tests for fair use. Since precedent is merely persuasive, it is less likely that interpretations of the factors that, through repetition, become doctrine--such as transformativeness and parody--will develop. He's not advocating that there should be no exceptions and exemptions in civil law systems. On the contrary, his point is that it shouldn't be four open-ended factors like we have. Do you like our current, unpredictable system? I don't. I should think that spelling out the exceptions and exemptions is better. Might even lower transaction costs (for you utility lovers). Regardless, I think it's ridiculous to claim that he's vying for "out and out censorship." Grow up.
Some things are so supremely stupid that no analysis is needed. Tim assumes we are not idiots and understand the First Amendment, are you admitting you don't?
On the contrary, the First Amendment doctrine in this context is complicated, with forum analysis, levels of scrutiny, etc. You and Tim assume you understand this complicated doctrine. I don't think either of you do. I was merely pointing out that Tim's conclusory claim that this is "just not how free speech works" is bullshit. If he wants to draw a legal conclusion, then he should back it up with actual analysis. Or else it's just more faith-based FUD, which is exactly what his (and your) claim is.
How are the benefits of encrypting Netflix streams "tremendous and worth it"? Sounds like a faith-based claim to me. Care to share your scientific cost-benefit analysis?
In short, yes, deploying HTTPS at that scale is expensive, but the benefit to users is tremendous and worth it.
How are the benefits of encrypting Netflix streams "tremendous and worth it"? Sounds like a faith-based claim to me. Care to share your scientific cost-benefit analysis?
I have to say that I don't believe you. I spend a lot of time with software engineers. A lot. None of them agree with you.
Good grief, Mike. Maybe, just maybe, his experience differs from yours. He handled software patents in the aerospace industry, and you hang out with like-minded types in Silicon Valley. That you jump to an ad hominem and question his integrity actually says a lot more about you than it does about him. You seem never able to give anyone on "the other side" even an inch. What's up with that? It just makes you come across as quite unreasonable.
I don't see how posting a sign that warns users to consider IP laws is a "freakout." It seems like the one freaking out is you, as demonstrated by the faith-based FUD in your post. The sign will have no effect on curbing infringement, but it will be detrimental to innovation? I'd ask you to defend this claim, but we both know that you can't. Why are you freaking out so hard about a sign, Mike? Why all the FUD? Slow news day?
You'd have an argument there if, AND ONLY, if after the two years, you actually receive a new right. The thing is...you don't. What happens with copyrights is that the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously, is instead curtailed. Not only that, but their property rights are curtailed as well. As it stands now, if you spend two years writing a novel and then publish it, I 1) Cannot utter aloud the text of the novel 2) Use my own equipment, property that I have purchased and otherwise own, to copy the text of the novel You do not receive anything at all when you write and publish a piece of work. What happens is everyone else's rights are curtailed.
I think the legal relations between the author and the public simultaneous change such that the author has a right to exclude the public from doing certain things while the public has a duty to refrain from doing certain things. I don't agree that it takes anything away from the public since the work did not exist until the author created it. For example, you can't copy my novel until my novel exists. The moment it does exist, you still can't copy it. You never could before I wrote it, and you still can't once I do write it. I don't see how any rights have been taken away.
Regardless, did you notice how you made a moral judgment? You spoke of "the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously." Can you prove scientifically that these free speech rights are "inherent"? Of course not.
If the data is inconclusive, then why be in favour of the continued existence of X?
The question seems simple enough, but the answer is quite complicated. I’ll sketch out for you my personal viewpoint: There’s many arguments both for and against IP. My own belief is that all of these arguments have merit, though each is subject to a meritorious objection. Everybody’s right and everybody’s wrong. There is no one true and correct answer in the scientific sense. We’re not, say, calculating the distance between two objects using geometry. We’re questioning something that is intrinsically far less provable: Do we want IP?
There’s many schools of thought, but they are generally broken into two distinct groups. The first group thinks the morality of a given act is determined only by its consequences. The second group agrees that the morality of an act can be determined by its consequences, but it also believes that sometimes the consequences of the act are irrelevant to its morality. That is, this second group thinks that some things are moral, consequences be damned.
For example, take the right to life protected by due process. A member of the first group would say that the morality of this due process right depends on the consequences, and it’s conceivable that the greater good could outweigh an individual’s right to life protected by due process. A member of the second group would say that this due process right is inviolable. No matter the consequences, it is never moral to take someone’s life without due process. The first group always sees morality as something extrinsic to the act, while the second group allows the possibility of morality as something intrinsic to the act.
Mike (and Techdirt) generally falls into the first group, and he thinks only the consequences matter. Mike doesn’t present his arguments in moral terms, but I assume this is simply because he’s not familiar with the underlying philosophical debate. When he argues, say, that IP is nonrivalrous and thus illegitimately protected by law, he’s implicitly making the claim that IP protection is morally wrong. He concludes that it’s morally wrong based only on the consequences. He thinks that IP protection does not maximize the greater good, so it’s immoral.
As you’ve probably guessed, I generally fall into the second group. While I think that the consequences matter to a significant degree, I also think that some rights are inviolable, irrespective of the consequences. For example, I believe that the investment of labor creates in someone a moral claim to the thing labored upon. The laborer’s moral claim is superior to the claim of someone else who didn’t labor to create the thing. This holds true (to some degree) no matter the consequences. If I spend two years writing a novel, my moral claim to it trumps yours and everyone else’s. The morality comes in part from my investment of labor in creating the novel.
Let me jump to the punchline: Members of the first group, like Mike, often present their side as descriptive facts. For example, the claim that the numbers have been crunched and we’d all be better off if we didn’t have IP. That sounds good on the surface, but the reality is that the numbers can’t be crunched unless the person crunching them first decides which numbers to crunch and which numbers to ignore. This person has to make the very same type of moral judgments that members of the second group make. One cannot get from the fact that IP is nonrivalrous to the claim that it shouldn’t be protected without first deciding questions of intrinsic moral value. It’s not calculating the circumference of a circle, it’s deciding that some moral claims are inherently superior to others.
"It's not something that can be decided definitively using science."
Faith based proposition at its clearest and finest. I've heard literally the exact same sentence, word for word (I am not kidding here) from theists I've debated with, in their arguments in favour of God.
The fact that science has not definitively answered the question either way suggests that perhaps science is not up to the task. Given the fact that moral judgments have to be made, it’s not surprising that the data is inconclusive. If anyone claimed that IP is good or bad and they can prove it, I’d be skeptical either way. It’s just not that simple.
How about the guy who is listed in the article that I'm guessing you didn't read?
After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”
He cannot find any real empirical data to support the current system, so he falls back on 'faith in the necessity' of of it. That certainly seems to be ignoring the data to me.
The imaginary property system we've got now is an artificial government construct, meaning it would not exist without an outside force creating it. As such, it's opponents don't need to provide evidence for why it should't exists, or shouldn't exist in it's current form, rather it's supporters need to provide evidence as to why it should, and he could not find data to support that position.
He's saying the data doesn't show anything either way. It's inconclusive. The reason it's inconclusive is because it has to be. It's not something that can be decided definitively using science. If you think science can answer the question, then please tell us how. Maybe you can figure out what the others can't.
Pro-IP people claim that IP laws are necessary to promote creation and culture. Even ignoring all the evidence against that, they still need to actually prove their claim, which they have yet to do. If, on balance, there is no discernible difference between having IP laws and not having IP laws, then there is no point in having IP laws as they are just a waste of time and money. Furthermore, there is loads of evidence that IP stifles creativity (fanfictions aka derivative works) and causes other troubles (copyright trolls, draconian copyright laws endangering freedom of speech). Please educate yourself on the concept of burden of proof before Russel's Teapot falls out of orbit and hits you on the head. Clearly it must be real because I say so and we need evidence to disprove it, right?
Yes, some people subscribe to the incentive theory of IP. I've never experienced any of those people ignoring all evidence, which is the claim being made. It's simple to claim that "there is loads of evidence" against IP. It's quite another to produce that evidence, acknowledge its strengths, yet accept its weaknesses. I've never seen any data that conclusively proves anything one way or another. If you have this perfect evidence, please produce it. Let's see the evidence, and let's hear exactly what it proves. It should be easy for you, since there's loads of it. Else this seems like more faith based FUD.
Also, to answer your question, you regularly pump out faith-based FUD while ignoring all data, so it's you and you're a hypocrite too.
If I regularly pump it out, it should be a simple matter for you to provide evidence of even one time I've done this. Or is this faith based too?
I'm not ignoring that data. I want to engage Mike on that very data. I don't think he's ever shown that DNS blocking "breaks the internet." I think it's faith based FUD. The fact that he refused to ever discuss it on the merits should tell you something.
The data is inconclusive, but it's faith to support IP and science to resist it? That makes little sense. This post is rather ironic given all the faith based FUD Techdirt regularly pumps out. Let's start with the title: Name one person who ignores all the data. If you can't do that, can you admit your claim is based on faith?
While they might be able to argue(successfully or not) that the statue allows for what they've done, even mentioning that case would seem to be shooting themselves in the foot on a massive scale, given it was overturned by a higher court.
As such I imagine they'll proceed as though the matter has never come up before, not bringing up the previous cases regarding the matter at all, though I imagine the other side, and potentially the judge, will be looking at similar cases when it comes to making arguments.
Look on page 11 of the third document embedded in the article. Rightscorp acknowledges both circuit court decisions interpreting 512(h) to the contrary. It quotes from the dissent of one of those cases, noting that the dissent's view comports with its own. It also cites a district court decision where it made the same argument concerning 512(h) and lost. The other side moved for sanctions, but the motion was denied as Rightscorp's argument was not frivolous or in bad faith. That's the problem here for the plaintiffs. Rightscorp is not using the 512(h) in bad faith or for a purpose it was not intended for. It's not abuse of process.
On the post: Music Licensing Groups Argue That A Homeowners Association Playing Music At The Pool Is A Public Performance
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Haha! The shower is generally a private place. Perform all you want! Could be a closer call if you're at a public bath house, though.
On the post: Music Licensing Groups Argue That A Homeowners Association Playing Music At The Pool Is A Public Performance
On the post: If You're Promoting Copyright Without Fair Use, You're Promoting Out And Out Censorship
Manne's argument is that civil law systems shouldn't have open-ended, multi-factored balancing tests for fair use. Since precedent is merely persuasive, it is less likely that interpretations of the factors that, through repetition, become doctrine--such as transformativeness and parody--will develop. He's not advocating that there should be no exceptions and exemptions in civil law systems. On the contrary, his point is that it shouldn't be four open-ended factors like we have. Do you like our current, unpredictable system? I don't. I should think that spelling out the exceptions and exemptions is better. Might even lower transaction costs (for you utility lovers). Regardless, I think it's ridiculous to claim that he's vying for "out and out censorship." Grow up.
On the post: Student Sues College After Campus Cops Demand He Get A Free Speech 'Permit' Before Handing Out Fliers
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On the contrary, the First Amendment doctrine in this context is complicated, with forum analysis, levels of scrutiny, etc. You and Tim assume you understand this complicated doctrine. I don't think either of you do. I was merely pointing out that Tim's conclusory claim that this is "just not how free speech works" is bullshit. If he wants to draw a legal conclusion, then he should back it up with actual analysis. Or else it's just more faith-based FUD, which is exactly what his (and your) claim is.
On the post: Netflix Moving To Encrypted Streams, As Mozilla Moves To Deprecate Unencrypted Web Pages As Insecure
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https://people.freebsd.org/~rrs/asiabsd_2015_tls.pdf
That paper isn't about privacy. Try again?
On the post: Netflix Moving To Encrypted Streams, As Mozilla Moves To Deprecate Unencrypted Web Pages As Insecure
How are the benefits of encrypting Netflix streams "tremendous and worth it"? Sounds like a faith-based claim to me. Care to share your scientific cost-benefit analysis?
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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Good grief, Mike. Maybe, just maybe, his experience differs from yours. He handled software patents in the aerospace industry, and you hang out with like-minded types in Silicon Valley. That you jump to an ad hominem and question his integrity actually says a lot more about you than it does about him. You seem never able to give anyone on "the other side" even an inch. What's up with that? It just makes you come across as quite unreasonable.
On the post: California Bill Would Require Libraries Post Scary Warning Signs Not To Do Infringy Stuff With 3D Printers
I don't see how posting a sign that warns users to consider IP laws is a "freakout." It seems like the one freaking out is you, as demonstrated by the faith-based FUD in your post. The sign will have no effect on curbing infringement, but it will be detrimental to innovation? I'd ask you to defend this claim, but we both know that you can't. Why are you freaking out so hard about a sign, Mike? Why all the FUD? Slow news day?
On the post: Student Sues College After Campus Cops Demand He Get A Free Speech 'Permit' Before Handing Out Fliers
Brilliant analysis, Tim. Keep up the good work.
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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The thing is...you don't.
What happens with copyrights is that the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously, is instead curtailed. Not only that, but their property rights are curtailed as well. As it stands now, if you spend two years writing a novel and then publish it, I
1) Cannot utter aloud the text of the novel
2) Use my own equipment, property that I have purchased and otherwise own, to copy the text of the novel
You do not receive anything at all when you write and publish a piece of work. What happens is everyone else's rights are curtailed.
I think the legal relations between the author and the public simultaneous change such that the author has a right to exclude the public from doing certain things while the public has a duty to refrain from doing certain things. I don't agree that it takes anything away from the public since the work did not exist until the author created it. For example, you can't copy my novel until my novel exists. The moment it does exist, you still can't copy it. You never could before I wrote it, and you still can't once I do write it. I don't see how any rights have been taken away.
Regardless, did you notice how you made a moral judgment? You spoke of "the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously." Can you prove scientifically that these free speech rights are "inherent"? Of course not.
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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The question seems simple enough, but the answer is quite complicated. I’ll sketch out for you my personal viewpoint: There’s many arguments both for and against IP. My own belief is that all of these arguments have merit, though each is subject to a meritorious objection. Everybody’s right and everybody’s wrong. There is no one true and correct answer in the scientific sense. We’re not, say, calculating the distance between two objects using geometry. We’re questioning something that is intrinsically far less provable: Do we want IP?
There’s many schools of thought, but they are generally broken into two distinct groups. The first group thinks the morality of a given act is determined only by its consequences. The second group agrees that the morality of an act can be determined by its consequences, but it also believes that sometimes the consequences of the act are irrelevant to its morality. That is, this second group thinks that some things are moral, consequences be damned.
For example, take the right to life protected by due process. A member of the first group would say that the morality of this due process right depends on the consequences, and it’s conceivable that the greater good could outweigh an individual’s right to life protected by due process. A member of the second group would say that this due process right is inviolable. No matter the consequences, it is never moral to take someone’s life without due process. The first group always sees morality as something extrinsic to the act, while the second group allows the possibility of morality as something intrinsic to the act.
Mike (and Techdirt) generally falls into the first group, and he thinks only the consequences matter. Mike doesn’t present his arguments in moral terms, but I assume this is simply because he’s not familiar with the underlying philosophical debate. When he argues, say, that IP is nonrivalrous and thus illegitimately protected by law, he’s implicitly making the claim that IP protection is morally wrong. He concludes that it’s morally wrong based only on the consequences. He thinks that IP protection does not maximize the greater good, so it’s immoral.
As you’ve probably guessed, I generally fall into the second group. While I think that the consequences matter to a significant degree, I also think that some rights are inviolable, irrespective of the consequences. For example, I believe that the investment of labor creates in someone a moral claim to the thing labored upon. The laborer’s moral claim is superior to the claim of someone else who didn’t labor to create the thing. This holds true (to some degree) no matter the consequences. If I spend two years writing a novel, my moral claim to it trumps yours and everyone else’s. The morality comes in part from my investment of labor in creating the novel.
Let me jump to the punchline: Members of the first group, like Mike, often present their side as descriptive facts. For example, the claim that the numbers have been crunched and we’d all be better off if we didn’t have IP. That sounds good on the surface, but the reality is that the numbers can’t be crunched unless the person crunching them first decides which numbers to crunch and which numbers to ignore. This person has to make the very same type of moral judgments that members of the second group make. One cannot get from the fact that IP is nonrivalrous to the claim that it shouldn’t be protected without first deciding questions of intrinsic moral value. It’s not calculating the circumference of a circle, it’s deciding that some moral claims are inherently superior to others.
"It's not something that can be decided definitively using science."
Faith based proposition at its clearest and finest. I've heard literally the exact same sentence, word for word (I am not kidding here) from theists I've debated with, in their arguments in favour of God.
The fact that science has not definitively answered the question either way suggests that perhaps science is not up to the task. Given the fact that moral judgments have to be made, it’s not surprising that the data is inconclusive. If anyone claimed that IP is good or bad and they can prove it, I’d be skeptical either way. It’s just not that simple.
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”
He cannot find any real empirical data to support the current system, so he falls back on 'faith in the necessity' of of it. That certainly seems to be ignoring the data to me.
The imaginary property system we've got now is an artificial government construct, meaning it would not exist without an outside force creating it. As such, it's opponents don't need to provide evidence for why it should't exists, or shouldn't exist in it's current form, rather it's supporters need to provide evidence as to why it should, and he could not find data to support that position.
He's saying the data doesn't show anything either way. It's inconclusive. The reason it's inconclusive is because it has to be. It's not something that can be decided definitively using science. If you think science can answer the question, then please tell us how. Maybe you can figure out what the others can't.
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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Yes, some people subscribe to the incentive theory of IP. I've never experienced any of those people ignoring all evidence, which is the claim being made. It's simple to claim that "there is loads of evidence" against IP. It's quite another to produce that evidence, acknowledge its strengths, yet accept its weaknesses. I've never seen any data that conclusively proves anything one way or another. If you have this perfect evidence, please produce it. Let's see the evidence, and let's hear exactly what it proves. It should be easy for you, since there's loads of it. Else this seems like more faith based FUD.
Also, to answer your question, you regularly pump out faith-based FUD while ignoring all data, so it's you and you're a hypocrite too.
If I regularly pump it out, it should be a simple matter for you to provide evidence of even one time I've done this. Or is this faith based too?
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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There are plenty more.
I'm not ignoring that data. I want to engage Mike on that very data. I don't think he's ever shown that DNS blocking "breaks the internet." I think it's faith based FUD. The fact that he refused to ever discuss it on the merits should tell you something.
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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1- spout some ridiculous faith based statement with no backup or if there is backup, its some ??AA funded report that has no backup.
2- Ignore all replies containing facts that disprove said statement
3- find the one or two comments that contain little or incorrect applied facts (or incorrect facts) and reply as if those comments prove you correct.
4- gloat while continuing to ignore the fact based post disproving your statement
Generalizations made with no evidence to back it up? Sounds faith based to me.
so I'd gather
A - your income relies on IP (either directly or you are a paid shill)
or
B - You fit the bill
or both
Paid shill? LOL! I say what I say because I believe it, not because someone pays me to say it. Your shill theory is more faith based FUD.
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
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antidirt.
Not good enough. You're a person of science! Name one piece of data I've ignored. Or is your claim just based on faith?
On the post: Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
On the post: Big Media Companies Insist That VPN Services Violate Copyright Law
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On the post: Once Again, Political Speech Is Silenced By Copyright/ContentID
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That wasn't me! I only made the one comment above. Don't be so paranoid!
On the post: Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment
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As such I imagine they'll proceed as though the matter has never come up before, not bringing up the previous cases regarding the matter at all, though I imagine the other side, and potentially the judge, will be looking at similar cases when it comes to making arguments.
Look on page 11 of the third document embedded in the article. Rightscorp acknowledges both circuit court decisions interpreting 512(h) to the contrary. It quotes from the dissent of one of those cases, noting that the dissent's view comports with its own. It also cites a district court decision where it made the same argument concerning 512(h) and lost. The other side moved for sanctions, but the motion was denied as Rightscorp's argument was not frivolous or in bad faith. That's the problem here for the plaintiffs. Rightscorp is not using the 512(h) in bad faith or for a purpose it was not intended for. It's not abuse of process.
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