AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
60
MOTION for Summary Judgment Filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: #1 Statement of Facts Points of Authority, #2 Statement of Facts Statement of Undisputed Facts, #3 Declaration Declaration of Jonathan Hudis, #4 Exhibit Ex. A, #5 Exhibit Ex. B, #6 Exhibit Ex. C, #7 Exhibit Ex. D, #8 Exhibit Ex. E, #9 Exhibit Ex. F, #10 Exhibit Ex. G, #11 Exhibit Ex. H, #12 Exhibit Ex. I, #13 Exhibit Ex. J, #14 Exhibit Ex. K, #15 Exhibit Ex. L, #16 Exhibit Ex. M, #17 Exhibit Ex. N, #18 Exhibit Ex. O, #19 Exhibit Ex. P, #20 Exhibit Ex. Q, #21 Exhibit Ex. R, #22 Exhibit Ex. S, #23 Exhibit Ex. T, #24 Exhibit Ex. U, #25 Exhibit Ex. V-1, #26 Exhibit Ex. V-2, #27 Exhibit Ex. W, #28 Exhibit Ex. X, #29 Exhibit Ex. Y, #30 Exhibit Ex. Z, #31 Exhibit Ex. AA, #32 Exhibit Ex. BB, #33 Exhibit Ex. CC, #34 Exhibit Ex. DD, #35 Exhibit Ex. EE, #36 Exhibit Ex. FF-1, #37 Exhibit Ex. FF-2, #38 Exhibit Ex. FF-3, #39 Exhibit Ex. FF-4, #40 Exhibit Ex. FF-5, #41 Exhibit Ex. FF-6, #42 Exhibit Ex. GG, #43 Exhibit Ex. HH, #44 Exhibit Ex. II, #45 Exhibit Ex. JJ, #46 Exhibit Ex. KK, #47 Exhibit Ex. LL, #48 Exhibit Ex. MM, #49 Declaration Declaration of Marianne Ernesto, #50 Exhibit Ex. NN, #51 Exhibit Ex. OO, #52 Exhibit Ex. PP, #53 Exhibit Ex. QQ, #54 Exhibit Ex. RR, #55 Exhibit Ex. SS, #56 Exhibit Ex. TT, #57 Exhibit Ex. UU, #58 Exhibit Ex. VV, #59 Exhibit Ex. WW, #60 Exhibit Ex. XX, #61 Exhibit Ex. YY, #62 Exhibit Ex. ZZ, #63 Exhibit Ex. AAA, #64 Exhibit Ex. BBB, #65 Exhibit Ex. CCC, #66 Exhibit Ex. DDD, #67 Exhibit Ex. EEE, #68 Exhibit Ex. FFF, #69 Exhibit Ex. GGG, #70 Exhibit Ex. HHH, #71 Exhibit Ex. III, #72 Exhibit Ex. JJJ, #73 Declaration Declaration of Lauress Wise, #74 Exhibit Ex. KKK, #75 Exhibit Ex. LLL, #76 Declaration Declaration of Wayne Camara, #77 Exhibit Ex. MMM, #78 Declaration Declaration of Felice Levine, #79 Exhibit Ex. NNN, #80 Exhibit Ex. OOO (Public Version), #81 Exhibit Ex. PPP, #82 Exhibit Ex. QQQ, #83 Exhibit Ex. RRR, #84 Exhibit Ex. SSS, #85 Exhibit Ex. TTT-1, #86 Exhibit Ex. TTT-2, #87 Exhibit Ex. UUU, #88 Declaration Declaration of Kurt Geisinger, #89 Declaration Declaration of Dianne Schneider, #90 Text of Proposed Order Proposed Order, #91 Certificate of Service Certificate of Service)(Hudis, Jonathan). Added MOTION for Permanent Injunction on 12/22/2015 (td).
EXHIBIT G
Case No. 1:14-cv-00857-TSC-DAR
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Carl Malarnud
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Copyright
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@ 1993
by Carl Malamud
Published by Prentice-Hall, Inc.
A Paramount Communications Company
Englewood Cliffs, New Jersey 07632
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are the trademarks of their respective manufacturerÊ. Carl Malamud is a trademark of Carl Malamud.
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Forcwo¡d and Freface, in which we secure funding for a voyage which will
take us three times around the world in six rnonths and give new meaning to
the phrase'many fine lunches and dinners."
Protrogue: The Documenf liôera[Íollr Frcnl in which we delve into the
abyss of internatíonal politics and wade through hordes of Jehovah's
Witnesses to examine a Bulgarian FEP.
Ceneva
Zürich
Prague
Ceneva
Paris
Boulder
Raund l: From íNIFßOP to IETF, in which we meet the lnternet Samurai
and the Uncle of the NSFNET and go to the zoo to witness the birth of
EBONE.
Jose Honolulu Toþo . Fujisawa Akihabara
Hong Kong Macau Slngapore Dublin Amsterdam
London Tampere Paris Ceneva Nice Geneva
Ithaca New York Washington, D.C. Santa Fe Boulder
Sar¡
Round 2: From Chñst¡nas to Ctreveland, in which we encounter a rnassively
parallel bicycle in ML View, find magic boxes in Oz, and go swimming in the
Sea of Acronyms in Europe,
Berkeley Mt. View San Francisco Moffet field
Wellington Dunedin Auckla¡rd Melbourne Sydney
Canberra Adelaide Singapore Kuala Lumpur Bangkok
Amsterdam Utrecht Bonn Brussels Paris
Washington, D.C. Cleveland Chicago Boulder
Round 3: ln Search of a Standards htaven, in which we meet the world's
most intelligent building. try to convince people to do the bloody obvious,
and learn the origins of the lnterneL
Marina del
Rey
Taipei
Hong Kong
San
Francisco Toþo
Seoul
Bombay Madison
Boulder
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Geneva
Sunday t ight, I took the TGV back to C'eneva. Feeling refreshed
after a day in the south of Fra¡rce and a weekend in Parie, I was
ready to sink into the bureaucratic abyss of C'eneva.
Sink I did. I spent the next thre€ days battling the ITU bureaucrcÇlr trying to stop a ¡ear guard action that was th¡eatening to kill
the Bruno project
In four weeks, the tsruno server had been a remarkable success.
Twenty-one s€rvetrs on four continents had cloned the file system
and were distributing the Blue Book. Bruno was getting as many æ
35 packets p€r second. Over 5ffi hosts in 27 countries had retrieved
over 65,m files. We had no stat¡gtics frorn the other Eervers, but it
was not unFeasonable to think that several hundred thousand files
of the Blue Book had made their way out to people who were actually readíng them.
How did this compare with paper copies? This was ha¡d to say,
a.s profits from documents had served as a sort of discretionary fund
for the previous Secretary4eneral of the ITU. Knowledge of publications was highly dispersed; only finance seemed to have sales
data, and they kept this information closely guarded.
Nonetheless, it appeared that the Bruno experiment had increased the distribution of the Blue Book by at least one order of
magnitude, and probably two or mone. Tony had documented all
this in his "Friends of Bruno" newsletter and had papered the
ITU-paper being the only medium that appeared to work there.
Yet, despite all this, the high-level Inforrnation Systerns Steering
Group had rnet the previous Friday to decide the future of Bruno,
Rumor had it that the outcome of the policy g¡oup was that the
experirnent had not been successful and was over.
Stopping the experiment was, of course, not a¡r option. The
seryer was in Colorado in a locked rcom and I had no intention of
stopping operation. Eesides, twentyorre other s€rTrers had the data.
Tony and I had carefully structured this proiect so there would be
no tunring back.
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Ttrcre wene, howeveq, some important factors at stalæ. I had
ho¡>ed t" b"gn putting otlrer ITU documsrts on the servers, A policy decision that the erperiment was over would mean that we
¡night have to bypass the IïU a¡rd start scanning paper copies.
More importantly was the role of the ITU iri disserni¡ration of
standards over the network" The logical outcome of the Eruno experiment was to have the ffu put itself on the lnternet and take
over this function.
Tory had set me up for th¡ee days packed with meetings. M*y
of these people were division di¡ectors or other V"ry Important Burear¡crats (WBs) who sat on tlrc Information Syatems Steering
Group,
One meeting, in particular, stood out over all the rest. I was
scheduled to meet with Walter Richter, director of something important. He was 45 minutes late, so I spent the time looking at the
stacks of file folders on his seeretaq/s wall-to-wall bookcase.
They had wonderful labels such as'The Preparatory Comrnittee
on Restflrcturing of Subeidiary Machiner¡/' or "The Administrative
Commíttee on Coordination." One was uimply labeled "High Level
Comrni.ttee" and took up several folders high up on the top shelf.
The commíttee that s€emed to take tt¡e most wall space was the
"Co¡rsultative Commitûee on Subetantive Questions."
Finally, Richter strode in. Speaking with a heavy Austrian accent, he preceded to tell me how my experiment "was not a success
and has been terminated."
He seemed very certaÍn that the experiment had not been a succesÉ¡, so I asked why. It appeared that this lnternet of mine (the ITU
con"çidered the lnternet to be some private project run by Tony
Rutkowskí a¡rd mys€lf) just didn't reacFr the right sort of people. By
tl[e right people, he seemed to mean those who wene on the Adrninistrative Council of the ITU or thos€ that worked orr the consultative
committees like the CCITT or the CCIR.
Tlre conclusion that the Internet had the wrong sort of people
was odd, since I had rct analyzed the data on who w€rs accessing
Ðry s€rver. In fact, anecdotal evidence was pointing to just the opposite conclusion- I had received personal rnessages fro¡n places
like.{TeT, E€ll [,åbs, and Tetrecorn Finland.
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Ëxploring the lnternet
found out late¡ how Richter canre to this view. Richter had a
buddy on the radio side of the ITU, the CCIR. His buddy had a pal
in Canada to whom he had spoken.
tr
"Ever hea¡ of this Brr¡¡ro thingï'
"No¡)€."
"Ever hear of this Internet businessl'
"Yeah, but we checked it out a few years ago and it was too
expensive."
Well, there you go. Can't argue with a few personal a¡recdotes
when making a highJevel policy decision. I tried trotting out a few
of my own anecdotes, but Richter had already assembled the data
he needed.
Richter had something in common with srost of the other VIBs
that I met in thrce days at the ITU. He was very, very sure of hirnself. For example, he was absolutely convinced that the entire ITU
network architech¡re was fatally flawed,
I must confess, this was certainly my working assurnption when
starting to deal with the ITU compuüer group, but the reality turned
out to be that thuy had a fairly decent network architectu¡e in place.
Not what I would have chosery but adequate for the job.
I asked Richter to tell me what was wnong.
"The Ethernet " he replied. When his PC had first been installed, it was a diskless machíne. A mistake, of course, but it had
been fixed. He was convinced that all ITU network problems had at
their root Ethernet saturation, because it had once taken several
hours after pressing a key to see the cha¡acter appear on his screen.
Based on this anecdote, he was ready to completely micromanage some fairly talented engineers that worked at the ITU computer
deparhnent. Rather than set broad policy (an area that had been
sorely lacking), he was convinced that the a¡rswer was to roll up his
sleeves and dig into the bits and bytes.
Another curious aspect of the three days of meetings was this
ídea of the lnternet as some acadennic toy that real people didn t
use. I met with one staff member who expressed this view and
waved a piece of paper at me that had the names of delegates he
was working wíth aa proof.
126
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I picked up the piece of paper and starùed going through the list.
Many c¡f the places, such as the Cenhe National des Etudes de Telecommr¡nicatione Ín Paris, wene clearly on the Intemet. In fact, the
vast majority of irutitutions on the list appeared tcl be co¡rnected in
one forsr or another.
The¡e was another more fundarnental issue that stârted to focus
and helped explain this reluctance among the WBs. Printíng documents waa a big empire at the ITT-I, and building empires was the
ruune of game. My project was not a good way to build big empires
{efficíency never is).
The printing deparknent at the f,TLJ was truly an impressive
place. I walked past the "k*p ouf'signs and gave myself a private
tour. There lvere s€ven offset press€s, four state-of-the-arf top-ofthe-line Xerox 5090 copiers, and a dozen or so other large copiers.
The ITU's own faciliry generated only a fraction of the total ouþut.
Swiss printers had a long and cozy relatíonship with the ITU bureaucracy.
Things would be printed with no relationship to demand under
the assumption that larger print rurul meant a lower per-unit cost,
True, of, course, but íf you throw away most of the units, your average costs ca¡r be considerable.
One of rny underground sources gave me an example. For several years, the ITU had produced a beautiful four-color "cha¡ts in
profile" dofl¡ment. Each time, 10,000 copies would be printed at a
cost of several hundred thousand dolla¡s.
Of this print run, 2,000 copies would be given away and roughly
100 sold, Yet, every few years, a new edition would be put together
and 10,000 new copies would be printed. Strolling around basements and subbas€ments, I saw enough paper to start a firestornr,
Pallet after pallet was loaded with boxee and boxes of documents
that nobody would read.
ïhis being the decade of the envi¡onment (or was it the children?), I naively asked about the ITU recycl.ing program. Needless
to say, one didn't exist,
The Bruno experiment di¡''ectly threatened this paper empire"
The bureauffacy had framed its Eugurnent very cleverly. Every yeaç
the ffu had received several nnillion Swiss Francs in revenue frorn
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selling docrunents. The official "profi{' from the Blue Book had
gone to fund programs in the developing world.
In other words, Eruno was deprivhg the ITU of revenues that
would fund vital infrastruch¡r€. My selfish little proiect meant that
people who needed to call a doctor wouldn't be able to. Project
Bruno, b*by killer.
Nobody actually aceused me explicitly of kilting babies, but I
certainly fett that undereurrent. A.fter donatÍng several rnonths and
several thousand dollars to putting ITU standards online, I had
somehow not expected this type of reaction.
The donation was the single most difficult concept for the VIBs
to understand. Why was I doing this? What was my rnotive?
What was in it for me?
Of course, donations to the comüton infrastructure are how the
Internet was builL Even formal standards bodies like the ITU run
on donations. Corporatio¡rs work in the standards process as a volunteer effort.
In the Internet community, volunteer efforts are the norm. The
IETF has many people who attend as private citizens, paying for the
privilege three times per year out of their own pockets. Payíng for
the privilege of getting the Blue Book online was not remarkable,
but VIBs didn't know what to make of it,
The "Bruno, baby kille/'aspect tr¡as a difficult one. Profits frorn
document sales were vÍrtual at best, and the simplest solution
would be to redo the accounting syetem to look at the total costs of
the inefficient document production prTrcess, but that proved to be
dangerous.
I thus attacked the widespread u.ne¡rs€ with g¡tit g away copies
on the Internet, Tony was advancing the novel th*ry that by giving eopies away, you increased the ma¡ket and thus increased sales.
Such an ¿ugurnent, although bearing a few logical flaws, seemed to
stop the VIBs, at least for a few minutes.
While the ITU was criticizing the Bruno experiment, they were
attennpting to move forward on their own electronic document handling system. Evídentþ the Bn¡¡ro situation had impressed the Secretary-General enough that he had presented himself at the meeting
r28
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of the lnformation Systems Steering Group and suggeeted that they
should do oontething.
Ttre committ€€ had ttrus epawned a task force. The task force
had forrred a small working group. Their initiat inclination was to
start using X.400 as a way to send out working documents, but only
to nrembere of the committeeg.
Tìory and I tríed valiantly to switch the focus to getting the ITU
on the l¡rternet and sendíng the documents out to ae wide an audience as possible. This wa"s not meeting with much success. The
computer department was worried about the resou¡ce implications
of such a Ínove and wanted two additional staff members (in addition to their current network staff) to support the effort.
Basically, the bu¡eaucracy desperately wa¡rted to get back to a
wortrd they could control. In order to control documents, however,
you need to own them. Nobody at the XTU wa¡rted to admit that
thene was a po*sibility that the ITU didn't own its own docurnents.
Tony Rutkowski had made an analysis of the issue of copyright
and had come to the conclusion that the ITU didrft have a sustainable basis for asserting copyright protection. M.*y of the other
VTBg, however, felt that the issue was cut and dríed.
There a¡e no apparent tegal c.rses in which somebody has challenged copyright on a standards document. There a¡€ rnany factors
that must be weighed before a court will uphold a copyright clairn,
and it was naive to think that the issues are co simple that the IT{,J
could confidently daim they would win in a court of law.
In order for a document to have a copyright applied to it, it
mus! among other criteria, be original and not previously published. Since alrrost all standards sta¡t out a^s publlc domain working
documents, even tl¡is fundamental requirement is not often rnet.
M*y iurisdictiorrs do not allow protection to be granted on official or goverrrrnental works. Even a private standards body might
be consídered by the courts to be quasi-governmental. M*y places,
such as the U.9., make etandards a profl,¡rement requirement, making copyright enforrement questionable at best,
Even if standards a¡e copyrightable, only the representation of
the standard, not the contents, can be protected. Tony's conclusion
was that in almost any jurisdiction, rtuming the paper through a
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Ëcanner and OCR softwa¡e and posting .ASCï text would be defensible.
M*y standards do have graphicso of course. The graphics have
a stronger basis for copyright, since the representation is everything.
As we had seen with the Blue Eook, thougþ in marty cases the
graphics were not aboslutely ess€ntial, at least for getting a rudimentary understandi*g of the staridad.
Wïth these factors ijn mind, Tony and I walked acrûss the street
to meet Larry Eicher, Secretary-General of ISO. My feeling was that
even if there w¡rs no copyright on standards, it was cerüainly easier
to work with ISO ttnn against them.
The fact that Tony accompanied me wÉrs meant to send the mesffige that my efforts enioyed at least some support from the ITU. I
brought along a copy of SIACKS; Tony brought the slides from his
presentation to INTEROP in which he concluded that it was unlikely that any standards organization could ass€rt copyright on
documents.
"Do you ttúnk thafs diplornatie7'I açked.
"Nothing wrong with pushing forwa¡d the state of the art " he
said wÍth a smile.
We rnet Eicher a¡rd Mike Smith, one of the leaders of the task
force which supports the OSI effort. Both turned out to be very reasonable people.
I gave a little speech about the moral nece*sify of disserninating
sta¡rdards. I adva¡rced the view that the r€¿rson that 06I had taken
eo long to come to market was simply because it cost so much to
find out about it.
We then sta¡ted talking about applyíng Bnrno to the ISO world.
Eicher was quite frank 25 perrent of ISO revenues clrme from the
sales of standards documents. How did I propoæ to replace that
revenue? Even morìe importantly, ISO was controlled by its member
organizations, which also made much money from standards sales.
How did I propose to convince grcups like ANSI that posting standards for fiee would help them?
Simply put, it wae a question of fi¡rancial survival. lnterestingly
enough, Eicher was clearly unwillÍng to argue his caae on copyright
grounds. When I ventured the th*ory that copyright protection for
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ISO docrrments was legally weak and that some radical might just
go ahead and post the standards, Eicher said "iÍs not a question of
copfright protectíon" ifs a question of fair business practices."
We began searching for a potential solution. I proposed *y
high ¡esolution/low resolution compromise. The plan would post
Xow resolution versioris of documents for free on the nefwork and
allow ISO and AI{SI to contínue to sell the high resolution versions,
either on paper or electrsnically.
Low reeolution might mean ASCII text a¡rd 200 DPI bituraps of
graphics, formulas, a¡rd other elements not well suited to representation as ASCII texl Some document format such as ODA could
be used to tie the pieces together. Using ODA would help ISO by
spurring the development of the standa¡d by giving people a suþ
sta¡rtial base of documents worth reading.
The cmcial assumption was that people with the free version
would then pay for documents. I argued that free dÍstribution of
standards would increase the base of people who read documents
by at least a factor of 1O maybe even mor€. Marry of these would
want the paper documents. Giving away standards would lead to
increased revenues.
I then offered to test this theory on Bruno at no cost to ISO.
Eicher agreed to at least consider a forrnal proposal, so we went
back to the trTU and dashed off a forrnal letter. Kind of a long shot,
I figured, but certainly a first süep. (I never received a respon"se to
rry letter, but that was no suprise. I did, however, publish the offer
in C-ommunications Week juet in case ISO had misplaced my letter
and needed a reminder.)
Tony and I had one Enone item of business to attend to. A seminar had been scheduled for Monday morning to give people at the
ITU a briefing on Bruno. Totty had sent electronic mail on Friday,
but by Monday, none of the mail had arrived and therefore nobody
showed up at my lecture.
Turned out that the enti¡e ITU mail system was ru,nning off a
V¿A,Xmate with a ve{y limited amount of memory. If you sent mail
to everybody at the ITU (o*ly a few hundred people), the system
crashed.
13r
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Rather than remove the offendiog mailing list or even move the
message handling systern up to an appropriate host, the issue of the
"måil server situation" had entered the bureaucracy and a heated
debate had begun, focusing on whether or not to expand memory
on the V,A,Xmate. I was a bit incredulous. Running a mail system
for 900 pnrfessional bureaucraùs off a V.4,Xmate is kind of like using
a Volkswagen Beetle to har¡l timber out of the Amazon jungle.
We rescheduled the seminar, booking Tarjanne's personal conference Foom for the occasion. The secretaries were worried that the
room would be too small (it could only hold 50 people or so), but
Tony a¡rd I insisted that the venue had the appropriate symbolism
and that having to turn away people wouldn't be all bad.
Since electroníc ¡nail wasn't going to do the trick, we had only
one alternative: ElevatorNET. Posting notices in the elevators was
about the only effective means of communication at the ITLI, the
organízation that invented X.400.
The ITU has some of the strangest elevator manners in the
world. When you enter a lift, custom requires you to greet everyone. Everybody then chonrses back a hearfy "bon jo*."
When you leave, you say goodbye and everyone responds with
their own "au r€voir." Nice custom, but what it means is that during u busy period, it can cost you a dozen hellos and goodbyes to go
up just a few floors.
Tony and I pushed the button for the elevator and caught the
fi¡st one, respectin& the elevator protocol. Every time we caught an
elevator, we rode a few floors, long enough to post the notice. We
then got off, pushed the button again, and hoped that a different
elevator would sta¡t. FinaIIy, dozens of bon jours Xater, we had
caught the last elevator and posted the last notice.
Wednesday mornin& Tony had prepared all sorts of handouts
for the eager crowds. I nervously sat in the corner and prepared my
tatk
Two people eame. One
wa.s
our ally in the courputer deparÞ
menÇ arre¡ther a gentleman I had already briefed. Nobody else bothered to show up.
We all chatted for a few minutes, had a cup of coffee, then went
back to Tony's office. I bid Tony goodbye.
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Genwa
Thuruday, I took a serí€s of foru flíghts from Psris to London to
New York to lthaca" home of C-omell Univereity. Sitting on the
planec, I had plenfy of time to reflect i¡r wonder at the ITU. Muny
people were grateful that Tony Rutkoweki had put the time into the
bureaucracy, but you had to wonder how somebody that talented
could sr¡nrive in such a laþnintlu (He didn't for very [ong. Tony is
now an employee of Sprint lnternational and Vice President of the
Interr¡et Society.)
r33
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