Disney Enterprises, Inc. et al v. Hotfile Corp. et al
Filing
390
NOTICE by Hotfile Corp., Anton Titov Defendants' Notice of Filing the Publicly Filed Redacted Version of the Declaration of Andrew Leibnitz and Exhibits Thereto, Filed in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Exhibits Thereto (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37)(Munn, Janet)
EXHIBIT 3
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
with its Data Initiative (29 CFR
1904.41).
OSHA is also proposing to revise
Section 1904.39, which currently
requires an employer to report to OSHA,
within eight hours, all work-related
fatalities and in-patient hospitalizations
of three or more employees. The
proposed rule would require an
employer to report to OSHA, within
eight hours, all work-related fatalities
and all work-related in-patient
hospitalizations; and within 24 hours,
all work-related amputations.
This regulation was developed in
accordance with the principles of
Executive Order 12866 and Executive
Order 13563. Executive Order 12866
requires that OSHA estimate the
benefits, costs, and net benefits of
proposed regulations. The Agency
estimates the regulation will cost
approximately $8.5 million, on an
annualized basis. As discussed
elsewhere in this preamble, the Agency
believes the annual benefits, while
unquantified, are significantly in excess
of the annual costs.
srobinson on DSK4SPTVN1PROD with PROPOSALS
Background
On June 22, 2011 OSHA proposed to
update Appendix A to Subpart B of its
Injury and Illness Recording and
Reporting regulation. See 76 FR 36414.
The Notice of Proposed Rulemaking
(NPRM) also contained a proposed
requirement to report to OSHA, within
eight hours, all work-related fatalities
and all work-related in-patient
hospitalizations; and within 24 hours,
all work-related amputations. The
comment period for the NPRM ran
through September 20, 2011. On
September 16, 2011 OSHA received a
request to extend the comment period
through October 20, 2011. The National
Automobile Dealers Association
requested this extension to provide
them more time to evaluate the Bureau
of Labor Statistics injury and illness
data used for the proposed industry
exemption analysis. OSHA has agreed to
this request. The docket is being
reopened for comment for an additional
30 days.
Public Submissions
OSHA invites comment on all aspects
of the proposed rule. OSHA specifically
encourages comment on the questions
raised in the issues and potential
alternatives sections of this preamble.
Interested persons must submit
comments by October 28, 2011. The
Agency will carefully review and
evaluate all comments, information, and
data, as well as all other information in
the rulemaking record, to determine
how to proceed.
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You may submit comments in
response to this document (1)
electronically at http://
www.regulations.gov, which is the
Federal e-rulemaking portal; (2) by fax;
or (3) by hard copy. All submissions
must identify the Agency name and the
OSHA docket number (Docket No.
OSHA–2010–0019) or RIN (RIN No.
1218–AC50) for this rulemaking. You
may supplement electronic submissions
by uploading document files
electronically. If, instead, you wish to
mail additional materials in reference to
an electronic or fax submission, you
must submit three copies to the OSHA
docket office (see ADDRESSES section).
The additional materials must clearly
identify your electronic comments by
name, date, and docket number, so
OSHA can attach them to your
comments.
Because of security-related
procedures, the use of regular mail may
cause a significant delay in the receipt
of submissions. For information about
security procedures concerning the
delivery of materials by hand, express
delivery, messenger or courier service,
please contact the OSHA docket office
at (202) 693–2350 (TTY (877) 889–
5627).
Access to Docket
Comments in response to this Federal
Register notice are posted at http://
www.regulations.gov, the Federal erulemaking portal. Therefore, OSHA
cautions individuals about submitting
personal information such as social
security numbers and birthdates.
Although submissions are listed in the
http://www.regulations.gov index, some
information (e.g., copyrighted material)
is not publicly available to read or
download through that Web site. All
comments and exhibits, including
copyrighted material, are available for
inspection and copying at the OSHA
docket office. Information on using
http://www.regulations.gov to submit
comments and access dockets is
available on that Web site. Contact the
OSHA docket office for information
about materials not available through
the Web site and for assistance in using
the Internet to locate docket
submissions.
Electronic copies of this Federal
Register document are available at
http://www.regulations.gov. This
document, as well as news releases and
other relevant information, also are
available at OSHA’s Web page at http://
www.osha.gov. For specific information
about OSHA’s Recordkeeping rule, go
the Recordkeeping page on OSHA’s Web
page.
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Authority and Signature
This document was prepared under
the direction of Dr. David Michaels,
Assistant Secretary of Labor for
Occupational Safety and Health. It is
issued under Sections 8 and 24 of the
Occupational Safety and Health Act (29
U.S.C. 657, 673), 5 U.S.C. 553, and
Secretary of Labor’s Order 4–2010 (75
FR 55355, 9/10/2010).
Signed at Washington, DC, on September
22, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
[FR Doc. 2011–24779 Filed 9–27–11; 8:45 am]
BILLING CODE 4510–26–P
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2011–6]
Designation of Agent To Receive
Notification of Claimed Infringement
Copyright Office, Library of
Congress.
ACTION: Notice of proposed rulemaking
and request for comments.
AGENCY:
The Copyright Office is
issuing this Notice of Proposed
Rulemaking to solicit public comment
on proposals to update its interim
regulations governing the designation by
online service providers of agents to
receive notifications of claimed
copyright infringement as provided for
in the Copyright Act.
DATES: Written comments are due
November 28, 2011. Reply comments
are due December 27, 2011.
ADDRESSES: The Copyright Office
strongly prefers that comments be
submitted electronically. A comment
page containing a comment form is
posted on the Copyright Office Web site
at http://www.copyright.gov/onlinesp/
NPR. The online form contains fields for
required information including the
name and organization of the
commenter, as applicable, and the
ability to upload comments as an
attachment. To meet accessibility
standards, all comments must be
uploaded in a single file in either the
Adobe Portable Document File (PDF)
format that contains searchable,
accessible text (not an image); Microsoft
Word; WordPerfect; Rich Text Format
(RTF); or ASCII text file format (not a
scanned document). The maximum file
size is 6 megabytes (MB). The name of
SUMMARY:
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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
the submitter and organization should
appear on both the form and the face of
the comments. All comments will be
posted publicly on the Copyright Office
Web site exactly as they are received,
along with names and organizations. If
electronic submission of comments is
not feasible, please contact the
Copyright Office at 202–707–8125 for
special instructions.
FOR FURTHER INFORMATION CONTACT:
Robert Kasunic, Deputy General
Counsel, Copyright Office, GC/I&R, P.O.
Box 70400, Washington, DC 20024.
Telephone: (202) 707–8380. Fax: (202)
707–8366.
SUPPLEMENTARY INFORMATION:
srobinson on DSK4SPTVN1PROD with PROPOSALS
Background
In 1998, the Online Copyright
Infringement Liability Limitation Act
(Title II of the Digital Millennium
Copyright Act, Pub. L. 105–304, 112
Stat. 2860 (Oct. 28, 1998)) amended
chapter 5 of the Copyright Act, Title 17
of the United States Code, to provide
limitations on liability for online service
providers relating to material on their
systems. With respect to material
residing, at the direction of a user, on a
system or network controlled or
operated by or for the service provider,
the limitations of liability under section
512 are available only if the service
provider has satisfied certain
conditions, one of which is the
designation of an agent to receive
notification of claimed copyright
infringement to the Copyright Office,
and through the service provider’s Web
site in a publicly accessible location.
The Copyright Office is required to
maintain an online directory of
designated agents. 17 U.S.C. 512(c)(2).
Although this takedown notification
process is detailed in subsection 512(c)
and is a condition precedent for the
limitations of liability under that
subsection, the notification process and
the elements of notification set forth in
subsection 512(c)(3) are also referenced
in subsections 512(b) and (d), relating to
system caching and information
location tools respectively.
Because that Act was effective on its
date of enactment and a procedure to
enable the designation of agents needed
to be in place immediately thereafter,
the Copyright Office issued, without
opportunity for comment, interim
regulations governing the designation by
service providers of agents to receive
notifications of claimed infringement.
63 FR 59233 (Nov. 3, 1998). The Office
made clear that the interim regulations
would be replaced by more complete
regulations to be promulgated following
notice and opportunity for comment.
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The interim regulations have functioned
satisfactorily for many years, but issues
have arisen with respect to the currency
and accuracy of the information in the
directory, and the Office also intends to
implement an electronic process by
which service providers may designate
agents to receive notifications of
claimed infringement and an electronic
database to search for designated agents
of online service providers. This notice
provides a general overview of the
Office’s vision for the new system and
seeks public comment on proposed
rules that would govern the submission
and updating of information relating to
designated agents.
Discussion
Electronic Filing. The Copyright
Office is developing an online
submission form to be used by service
providers to designate their respective
agents to receive notifications of
claimed copyright infringement. If a
service provider chooses to designate an
agent, it will be required to utilize the
online procedure to submit the required
information to the Copyright Office.
Service providers that have already
designated an agent under the interim
regulations will be required to file new
designations. A submission that does
not provide information for each
required field, or that provides
information identified as inappropriate
(e.g., a phone number field that is
completed with all zeros), will be
automatically rejected. Once this
electronic system is adopted, the Office
will no longer accept paper
submissions, including documents
entitled ‘‘Interim Designation of Agent
to Receive Notifications of Claimed
Infringement,’’ as it did pursuant to the
interim regulations. Given that online
service providers, by definition, operate
in an online environment, the Office
does not anticipate that an electroniconly designation procedure would be
burdensome to submitters. Moreover, an
exclusively electronic process is integral
to an increase in efficiency and a
reduction of costs in the system.
In order to access the electronic
designation of agent form, the Office
proposes to require service providers to
establish accounts with the Copyright
Office, obtaining a username and
password, through the Copyright
Office’s Web site. There would be no
charge for establishing an account. The
account must be used in order to
periodically validate designation
information or to make changes to
designation information. The account
will serve as a means of authenticating
the person or entity entitled to validate
or amend a service provider’s
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designation of agent information. The
Office seeks comment on this
requirement.
While the Copyright Office is willing
to consider allowing a service provider
to delegate this responsibility to an
agent or other designee, there may be
reasons to be concerned about the
accuracy of amendments or validations
of existing designation information that
are not provided by the service provider
itself. If the designated agent were
permitted to do so, the service provider
nevertheless would bave to assume all
responsibility for the acts of the agent.
The Office seeks public comment on the
costs and/or benefits of allowing service
providers to delegate, to persons other
than their employees, responsibility for
maintaining their designated agent
information. The current proposed
regulation requires that the designation,
or any validation or updating of the
information in the designation as
described below, be submitted by the
service provider itself.
Periodic Validation. A small random
sampling of a portion of the current
directory reveals that a number of
existing designations are associated
with businesses that have ceased
operations. Although the interim
regulations require a service provider
that ceases operations to notify the
Copyright Office by certified or
registered mail, few online service
providers have complied with this
requirement. Similarly, although the
Office is unable to discern the precise
percentage of designations that contain
outdated information, the number of
amended designations that the Office
does receive suggests that many
designations probably are outdated, and
it is likely that a sizable portion of paper
designations contain information that is
no longer accurate. In order to help
maintain the accuracy and utility of the
directory of designated agents, the
Office proposes that each entity that has
filed a designation of agent using the
online template be required, either
annually, every two years, or at some
other regular interval, to validate the
information set forth in its designation
to insure that the directory remains
accurate. If any information is no longer
accurate, the validation process would
enable the responsible party to amend
the designation to correct any outdated
information. Any revision in a service
provider’s designation of an agent
would create a new record, or version,
within the Copyright Office’s database.
Through the use of ‘‘versioning’’ of the
records, the Copyright Office will be
able to provide a record indicating what
information was in the directory for a
particular service provider on any given
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date. Such information could become
important in litigation in order to
ascertain whether a service provider
was in compliance with the
requirements of the statute at a
particular point in time. Prior versions
of a designation will constitute public
records that may be obtained from the
Copyright,Office, e.g., when needed for
use in litigation. The Office requests
comments on whether such prior
versions should also be made accessible
via the Office’s public Web site. In
determining whether to make prior
versions available via the Web site,
consideration should be given to the
possible additional cost of constructing
a system that provides this form of
access (a cost that would most likely be
reflected in greater fees), the potential
for confusion (i.e., whether a person
seeking current information about a
service provider’s designated agent
might inadvertently end up with the
information from a prior version), and
the benefit of being able to gain
immediate access to such information.
The Office’s online system would
automatically generate, at specific
periods of time (e.g., 30 and 60 days)
prior to the date on which a service
provider is required to validate the
information in its designation, e-mails
to the e-mail address designated by the
service provider for the validation
process as well as to the designated
agent’s e-mail address. These e-mails
would contain a link to a login screen
and allow the service provider to log in
and validate or amend the information
associated with the service provider’s
account. The service provider would be
required to click on the link or
otherwise log into its account, review
the designation of agent information,
and then either validate the existing
information or amend the information
no later than the specified deadline for
validation. Should the service provider
fail to validate or amend its designation
within the allotted time, the designation
would expire and be removed from the
directory, and the service provider
would be notified of that fact. A service
provider whose designation has been
removed but who desires to receive the
benefits of section 512 would be
required to file a new designation of an
agent or, possibly, to reactivate and
validate the expired designation. A fee
would be assessed for both validation
and amendment for purposes of cost
recovery. The proposed rule specifies
that a service provider must validate the
information relating to its designated
agent at least every two years, but the
Office invites comment as to the
appropriate time period.
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As is discussed further below
(‘‘Contact Information for the Service
Provider’’), the Copyright Office
proposes to require the submission of
the service provider’s e-mail address as
well as the e-mail address of the
designated agent. This is necessary in
order for the Office to transmit reminder
notices of validation deadlines.
However, only the designated agent’s email address will be made publicly
accessible through the online directory.
The service provider’s e-mail address
will be maintained for Office
correspondence only.
The Office proposes to also require
contact information for the person filing
the designation if that information is
different from contact information for
the online service provider, to be used
in case the Office has any questions
regarding the designation or the
designated agent. The Office invites
comments as to whether such
information should be displayed in the
online directory. Moreover, because of
the likelihood that over time, a person
responsible for the filing and updating
of a designation may no longer be
employed by the service provider, the
proposed regulation would require
alternate name and contact information
for another person connected with the
service provider in the event that the
person filing the designation cannot be
contacted.
Amending a Designation. The new
online filing system will permit a
service provider to amend the
information in its designation of agent at
any time, and not only during the
validation process. It is anticipated that
any amendments will appear in the
online directory no later than 24 hours
after they are entered by the service
provider. The prior version of the
designation will be archived by the
Office as an official record, but as noted
above, the information contained in that
prior version is likely to be removed
from the online database.
Currently, the interim regulations
require a service provider to submit an
entire new designation if any of its
information has changed. This
requirement has created some confusion
and has led to the unintentional
elimination of some information
because some service providers
submitted only the new or changed
information (e.g., the name of a recently
purchased Web site), erroneously
believing that it would supplement
rather than supplant the original
designation. The Copyright Office seeks
to prevent this confusion by permitting
the service provider to make changes
only in those fields that contain out of
date information. The current
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59955
information will be the starting point for
any changes. For instance, in the field
identifying alternative name(s) of the
service provider (including DBAs), it
will be possible to add to the existing
list of names or remove names, or both.
It is anticipated that upon amendment
of the form, and prior to its submission,
the software will generate a preview
feature to allow the user to see all of the
information that will be contained in
the new record.
Amendment of a designation will
require the payment of a fee (to be
determined) and will generate an e-mail
from the Office to the old e-mail address
and any new e-mail address(es)
provided as a means of reducing the
likelihood of unauthorized changes.
Even though there will be a fee
associated with amending a designation
in the Copyright Office’s directory, it is
prudent for online service providers to
maintain current and accurate
information, since courts may find that
incorrect or outdated information
constitutes a material failure to comply
with the statutory requirements
necessary for invoking the limitations
on liability in section 512. See, e.g.,
Ellison v. Robertson, 189 F. Supp. 2d
1051, 1057–1058 (C.D. Cal. 2002), aff’d
in part and rev’d in part and remanded,
357 F.3d 1072 (9th Cir. 2004). Moreover,
the Copyright Office requests comment
on whether it should set the fee for
interim amendments below the fee for
periodic validation in order to
encourage the timely provision of
accurate information.
The Office also intends the
amendment process to serve as a means
of correcting any mistakes in a previous
submission. However, as with all
amendments, a fee will be required to
correct any mistakes and the previous
designation containing the mistakes will
be maintained in the Office’s archived
records.
Overlapping Designations. A related
issue has periodically arisen when one
service provider transfers a Web site to
another service provider, but fails to
notify the Office of the change. The
result is that when the buyer files its
designation of agent and lists the
purchased Web site as an alternative
name, both the seller’s and the buyer’s
designations include that Web site in
the directory. This can create confusion
for copyright owners who find two
different agents identified in the
directory for the same service provider.
This problem exists with the current
directory. (See, e.g., the various
designations for ‘‘Altavista,’’ at http://
www.copyright.gov/onlinesp/list/
a_agents.html) The Office can conceive
of two options in such situations. First,
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the two designations can both exist in
the online directory until the time for
the validation of the old designation, at
which time the old designation would
expire. In the meantime, persons
seeking the identity of and contact
information for a service provider’s
agent may find two inconsistent listings
for the service provider’s designated
agent and might have to suffer the
inconvenience of serving a notice of
claimed infringement on both the old
and the new designated agent.
Alternatively, it might be required that
the seller, who has control of the
existing entry in the online directory of
designated agents, amend the
designation to identify the buyer as the
new service provider and identifying
the new agent (or confirming that the
existing agent is continuing in that role).
The Office seeks public comment on
these alternatives and any other
alternatives that might address this
issue.
Of course, situations may arise (and
have already arisen) in which two
different service providers have the
same name. This is particularly likely
with respect to alternative names (i.e.,
other names by which a service provider
is doing business). See, e.g., the two
entries for ‘‘CUA’’ at http://
www.copyright.gov/onlinesp/list/
c_agents.html. While the Office is not
aware of any filings by two different
service providers with the same
corporate name, it is certainly
conceivable that there might be an XYZ
Corporation in Alaska and an unrelated
XYZ Corporation in Maine, each of
which operates as an online service
provider. Each would be entitled to file
a designated agent. For that reason, the
Office is inclined to conclude that it
should play no role in ‘‘policing’’ the
submission of potentially conflicting
information designating the agents for
service providers with the same name.
At the same time, the Office
recognizes the possibility of fraudulent
(or negligent) filings and solicits
comment on whether and how it might
resolve such situations without having
to engage in the adjudication of disputes
over who has the right to designate an
online service provider’s agent.
Alternatively, problems caused by
overlapping designations could possibly
be eliminated if the organizing principle
of the directory were to be shifted to
focus on service provider’s web address.
See the discussion below (‘‘Possible
Alternative Organizing Principle for
Directory: Designation of Web
Address’’).
Mandatory Re-filing. As the Office
makes the transition to an electronic
filing system, it will be necessary that
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all service providers refile (and, if
necessary, update) their previously filed
designations of agents to receive
notifications of claimed infringement.
The Office proposes the requirement for
two reasons: (1) As noted above, due to
the passage of years since it was created,
the current directory contains out-ofdate information, including information
about service providers that no longer
exist, and (2) the current directory
consists of a list of service providers
with a link, for each service provider, to
a pdf file of the paper ‘‘Interim
Designation of Agent to Receive
Notifications of Claimed Infringement’’
or ‘‘Amended Interim Designation of
Agent to Receive Notifications of
Claimed Infringement’’ that was
submitted to the Office by the service
provider. The new directory will consist
of a database to be populated with data
entered online by the service provider
itself. In order to ensure that the
database contains accurate, up-to-date
information, and in order to avoid
requiring Copyright Office personnel to
key in the information from the existing
directory, creating additional costs that
would have to be passed on to service
providers and creating the potential for
errors as the information is keyed into
the directory, the Office proposes to
place the burden of supplying complete,
up-to-date information on service
providers, who are in the best position
to ensure that the new directory consists
of complete and accurate information.
Upon adoption of the electronic
system, an approximately one year
transition period will begin. During the
transition period, the existing papergenerated database will be maintained.
At the same time, the new designated
agent database will begin to be
populated and no new paper
designations will be accepted. During
the transition period, a listing in either
database will satisfy the requirements of
section 512(c)(2) and parties seeking to
locate a service provider’s designated
agent will need to search both
databases. Approximately one year after
the effective date of the final rule, all
paper-submitted designations will
become invalid and only those
designations contained in the new
electronically-submitted directory will
satisfy the statutory requirement for
designating an agent with the Copyright
Office.
Filing Fee. The Copyright Office will
establish fees to file, validate, or amend
a designation of agent to receive
notifications of claimed copyright
infringement. In each instance, a new
record, or version, will be created,
including when a preexisting record is
simply validated. The Office will
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conduct a cost study as it builds the
online system to determine the
appropriate fee or fees and then will
publish an additional notice of
proposed rulemaking to seek comments
on the proposed fees. Such fee(s) will
also be incorporated into the Office’s
general fee schedule set forth at 37 CFR
201.3. The online filing fee may be less
than the current $105 fee for a paper
filing due to the likely decrease in
human labor required to manually input
and cross-reference the information to
the online directory of designated agents
appearing on the Copyright Office’s Web
site, but it is likely that part of the fee,
during an initial period of time, will be
used to recoup the costs of building the
new online system. Since a validation or
an amendment will result in a
replacement of the prior version, there
is likely to be a fee associated with these
transactions, but the fees for amendment
and/or validation may be lower than the
initial filing fee. The cost study will also
examine the additional cost associated
with indexing multiple alternative
names for a single service provider.
Based on a random sampling of a
portion of the designations, the Office
concludes that the majority of service
providers list five or fewer alternative
names, but that a significant remainder
list fifty to as many as three thousand
alternative names. While the Office is
inclined to continue to make it possible
for service providers to list as many
alternative names as they deem relevant
in order to enhance the utility of the
directory, those service providers with
larger numbers of alternative names
should pay their proportionate share of
the indexing cost. Therefore, the Office
contemplates continuing to charge an
additional fee for alternative names of
the online service provider. Currently,
the Copyright Office charges $30 for
each group of ten (or fewer) alternative
names, but for technical reasons it is
preferable to charge at least a nominal
fee for each alternative name.
Content. The Office proposes that the
information required from service
providers through the online
submission process should be, for the
most part, the same as that currently
required on the paper designations
under the interim regulation. Under the
proposed regulatory amendment, a
service provider would be required to
state its full legal name, its physical
street address, its e-mail address (a new
requirement; see the discussion below),
all alternative names under which it
does business, and the name, address,
telephone number, and e-mail address
of the agent designated to receive
notification of claimed infringement.
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The Office is inclined to continue to
require that the e-mail address be
submitted in traditional format (e.g.,
userid@domain.com) so that it can
automatically verify the authenticity of
the address and return e-mails to that
address. Some concern has been
expressed in the past about displaying
the agent’s e-mail address on the
Office’s Web site, and suggestions have
been made to the Office to display email addresses as text (e.g., userid at
domain dot com) in order to reduce
automated harvesting and spam
software programs from locating service
providers’ e-mail addresses. While the
Copyright Office is sympathetic to this
problem, it is a fact of the Internet that
online users and online service
providers must resolve by their own
means. Translating working e-mail
addresses into text and vice versa would
require additional programming costs
and may create additional problems for
the system. Moreover, the whole point
of the database is to make it easy to
locate a service provider’s designated
agent and to serve a notification of
claimed infringement on that agent. On
balance, it seems that there is more to
be said for facilitating such notifications
by providing an operable e-mail address
than for requiring someone who wishes
to send such a notification to key in the
address in each case. Accordingly, the
Office is not inclined to alter e-mail
addresses within the database, but
solicits comments from the public on
this issue.
Service Provider Identity and
Alternative Names. In addition to the
legal name of the individual or
corporation meeting the statutory
definition of a service provider, the
Office allows the service provider to list
any alternative names (including DBAs)
that would enable a copyright owner to
identify the service provider and its
agent. The Copyright Office leaves the
determination of what alternative names
to include up to the service provider,
but the information provided should
reasonably identify the service provider.
Agent’s Identity. Under the interim
regulation, the Office initially required
the online service provider to identify
the proper name of the designated agent
to whom notifications of alleged
copyright infringement are to be sent.
However, as a result of concerns that
personnel changes could inadvertently
render a designation of agent obsolete,
the Office has subsequently allowed
service providers to designate a specific
position or a particular title (e.g.,
Copyright Manager, VP legal affairs, or
General Counsel) rather than an
individually named person as its agent.
The Office is inclined to allow such
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designations in the proposed rule, but is
not inclined to permit a service provider
to designate an entity generally (e.g.,
law firm or copyright management
agency) as its agent. The Office is
concerned that notices of claimed
infringement addressed to a general
entity, rather than a natural person or
specific title, will be overlooked or not
attended to in a timely fashion. This
concern is reduced when a service
provider designates a specific position
or title at an entity or a natural person
as its agent, particularly when that role
is associated with a specific e-mail
address.
Section 512(c)(2)(A) specifies that the
limitation of liability under subsection
(c) is contingent on substantially
providing ‘‘the name, address, phone
number and electronic mail address of
the agent.’’ The legislative history
explains that: ‘‘The substantial
compliance standard in subsections
(c)(2) and (c)(3) are intended to be
applied so that technical errors (such as
misspelling a name, supplying an
outdated area code if the phone number
is accompanied by an accurate address,
or supplying an outdated name if
accompanied by an e-mail address that
remains valid for the successor of the
prior designated agent or agent of a
copyright owner) do not disqualify
service providers and copyright owners
from the protections afforded under
subsection (c). It is expected that the
parties will comply with the functional
requirements of the notification
provisions—such as providing sufficient
information so that a designated agent
or the complaining party submitting a
notification may be contacted
efficiently—in order to ensure that the
notification and take down procedures
set for in this subsection operate
smoothly.’’ Staff of House Committee on
the Judiciary, 105th Cong., Section-BySection Analysis of H.R. 2281 as Passed
by the United States House of
Representatives on August 4, 1998,
(Rep. Coble) (Comm. Print 1998), at 31–
32. Accord: Report of the House
Committee on Commerce on the Digital
Millennium Copyright Act of 1998, H.R.
Rep. No. 105–551, pt. 2, at 56 (1998).
The only judicial decision to address
whether Congress’s use of the word
‘‘name’’ requires a personal name or
may be interpreted broadly to
encompass a position or title, in dictum,
stated that ‘‘[n]othing in the DMCA
mandates that service providers must
designate the name of a person as
opposed to a specialized department to
receive notifications of claimed
infringement.’’ Hendrickson v. eBay
Inc., 165 F. Supp. 2d 1082, 1092, fn. 13
(C.D. CA 2001).
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The Office invites public comment on
the question of whether an online
service provider must provide the actual
name of a natural person or whether the
name of a specific position or title will
satisfy this requirement.
The Office is also inclined to permit
a service provider to designate as an
agent a position or individual within the
service provider’s organization itself
rather than requiring the agent to be an
unrelated third party. Since there are
arguably both benefits and drawbacks to
having a third party or an internal
representative serve as the agent, the
Office is inclined to permit each service
provider to make the decision that best
suits its needs. The Office is not,
however, inclined to permit the
designation of multiple agents, as doing
so would unjustifiably complicate the
statutory process. Although the Office is
sensitive to the concern that multiple
agents would be helpful in case of
personnel turnover, the Office believes
that the ability to name a position or
title rather than an individual
adequately addresses this issue.
Contact Information for the Service
Provider. The statute addresses some of
the information a service provider must
provide to the Copyright Office, but also
authorizes the Register of Copyrights to
determine any additional contact
information that is deemed appropriate.
Under the current interim regulation,
the service provider is required only to
provide its legal name and permitted to
provide alternative names used by the
service provider. The Office is inclined
to require the service provider to
provide an e-mail address in order to
send validation notifications to the
service provider as well as the
designated agent. This information is
sought for the benefit of the service
provider so that it is directly on notice
of the impending validation
requirement and potential expiration of
its designated agent’s listing with the
Copyright Office. Since the service
provider will be required to create an
account in order to use the online
system, the service provider will also be
required to use that account to validate
or amend the designation. Therefore, it
is necessary to have a means of
contacting the service provider.
However, this e-mail address will not be
posted in the Copyright Office’s
directory of designated agents, but
rather used by the Office for the
maintenance of the designated agent
listing.
Contact Information for the
Designated Agent. The statute requires
the online service provider to provide
the telephone number and e-mail
address of the designated agent. This
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information is central to the
requirements of 512(c)(2) and it is
particularly important that it be kept
current. See, e.g., Ellison v. Robertson,
189 F. Supp. 2d 1051, 1057–1058 (C.D.
Cal. 2002), aff’d in part and rev’d in part
and remanded, 357 F.3d 1072 (9th Cir.
2004). A fax number may be provided,
but is optional information that
supplements, but does not supersede
the requirement of listing a telephone
number and e-mail address for the
designated agent.
Service Provider’s and Agent’s
Address. The Office proposes to change
its rules to permit a post office box to
serve as a designated agent’s address.
The Office proposes this change due to
concerns raised about an agent’s
privacy, particularly where the agent’s
only address is a home address.
However, the Office proposes not, as a
matter of course, to permit a post office
box to serve as the address for a service
provider, as it can be important that
copyright owners are able to physically
locate the service provider, e.g., for
service of process. The Register of
Copyrights may waive this prohibition
in exceptional circumstances upon
written request from the service
provider.
The Office is also taking this
opportunity to clarify that a designated
agent’s address can be outside of the
United States; because a copyright
owner is permitted to give notice of
claimed infringement via e-mail, the
copyright owner bears no additional
expense or burden in giving notice to an
agent located in a foreign country. The
Office also permits a service provider to
list a foreign address for itself. Although
the limitations on liability in the United
States Copyright Act may not apply to
a particular foreign entity, the Office
believes that if a U.S. court finds cause
to assert jurisdiction over a foreign
service provider pursuant to the U.S.
Copyright Act, then no reason exists
why the Copyright Office’s regulations
should prohibit that service provider
from having filed a designation of agent
as a condition precedent to receiving the
benefits of the limitations of liability
afforded by section 512.
Signature. The Office proposes to
eliminate the requirement of an actual
signature, which has been a requirement
for the paper designations that have
been submitted up to now. Because all
online filings will require the creation of
an online account as well as payment
via pay.gov with a credit card, a
checking account, or a Copyright Office
deposit account, the online system will
be able to reasonably verify and
authenticate the identity of the person
submitting, validating or amending the
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designation of agent filing. The person
submitting the designation will also be
required to provide contact information
and attest to his or her authority to file
on behalf of the subject service provider.
Related Service Providers. The
Copyright Office solicits comments as to
whether related service providers (e.g.,
parent and subsidiary companies)
should be permitted to file a single, joint
designation of agent to receive
notifications of claimed infringement.
Under the interim regulations, related
companies are considered separate
entities and thus required to file
separate designations. The Office has
received occasional complaints from
service providers about the inefficiency
of this practice. The Office is receptive
to any process which eases the burden
on service providers without sacrificing
clarity and usefulness of the online
directory, and is inclined to permit
related service providers to file a joint
designation. However, it may be that
any efficiency gained by a joint filing
would be undercut should changes to a
designation become necessary. For
example, if one of the related companies
were to change its address, agent or one
of its Web site alternative names, then
the joint designation would have to be
revised and perhaps even severed to
account for the then-current information
of each of the related companies. In
contrast, if each company had
maintained its own designation, then a
change at one company would only
affect one designation.
If the Office permits joint
designations, the service providers
named on a joint designation would be
required to have and state a legally
recognized relationship (e.g., parent/
subsidiary). Informal teaming
arrangements would not be acceptable
for a joint filing. The person submitting
the designation would be required to
certify that this requirement had been
satisfied and that he or she has the
authority of each service provider
named on the joint designation to make
the submission on each service
provider’s behalf. The Office will
examine as part of its cost study
whether there is any additional cost
associated with processing a joint
designation. If such a fee is imposed, it
will be incorporated into the Copyright
Office’s general fee schedule. The Office
requests comments on this proposed
change and any information that would
weigh in favor of or against such a
change. The Copyright Office is
particularly interested in knowing
whether the benefits of such a change
for an online service provider are
outweighed by other considerations.
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Possible Alternative Organizing
Principle for Directory: Designation of
Web Address. As noted above, one
possible means of minimizing the
number of overlapping designations
would be to require that a separate
designation be filed for each web
address. Since all or almost all service
providers operate via Web sites, and
since in most if not all cases a single
web address will be used by only one
service provider, requiring that a
separate designation be submitted for
each web address could effectively
prevent all or almost all such
duplicative designations. Since each
web address is unique, providing that a
designation of the agent for a particular
web address will not be changed
without the consent of the service
provider currently identified in that
designation in the Office’s database
should insure against contradictory
entries in the directory. Moreover, it
may well be that Web addresses are the
principal means by which persons
identify service providers. A substantial
portion of the names currently used in
the directory of agents consists of web
domains.
The Office seeks comment on whether
requiring a separate designation for each
web address is the preferable means of
organizing the directory. If so, a further
question arises as to whether service
providers should continue to be able to
identify additional names by which they
are known, which would be searchable
in the directory. Conceivably, the web
address is the primary or even the only
name that a person searching the
directory would need to ascertain who
the designated agent of a service
provider is.
However, further thought needs to be
given to what is meant by ‘‘web
address.’’ As a general proposition, this
would be the basic domain (e.g., loc.gov,
google.com, or verizon.net) We
recognize the possibility that
sometimes, multiple service providers
will use the same domain, but in such
cases it is our understanding that each
service provider would be using a
different subdomain (e.g.,
thomas.loc.gov).or folder (e.g., loc.gov/
crb). The Office seeks comments on the
extent to which subdomains and folders
are used by separate service providers,
and whether separate designations of
agents should be permitted for
subdomains and for Uniform Resource
Locators (‘‘URLs’’) of folders within a
domain.
If using web addresses as the
organizing principle for the directory
makes sense, the Office also seeks
comment on whether, as an alternative
to a web address, a service provider
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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
could in appropriate circumstances
identify itself by reference to the name
of the ‘‘app’’ through which it offers
online services. By ‘‘app,’’ we refer to
‘‘an application, typically a small,
specialized program downloaded onto
mobile devices.’’ See http://
dictionary.reference.com/browse/app
(definition of ‘‘app’’). While it is the
Office’s impression that as a general
proposition, any app currently will be
associated with a particular Web site,
further information about the current
and likely future usage of apps as online
services will assist the Office in fleshing
out the requirements for the new online
directory.
The Copyright Office invites
comments on any and all aspects of the
proposed regulations and of the
proposed new system for processing
online service provider agent
designations discussed above.
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Proposed Regulation
In consideration of the foregoing, the
Copyright Office proposes to amend 37
CFR part 201 as follows:
PART 201—GENERAL PROVISIONS
1. The authority citation for part 201
continues to read as follows:
Authority: 17 U.S.C. 702.
2. Revise § 201.38 to read as follows:
srobinson on DSK4SPTVN1PROD with PROPOSALS
§ 201.38 Designation of Agent To Receive
Notification of Claimed Infringement.
(a) General. This section prescribes
the rules under which service providers
may provide the Copyright Office with
designations of agents to receive
notification of claimed infringement
pursuant to section 512(c)(2) of title 17
of the United States Code, as amended.
(b) Electronic Filing. Service providers
choosing to submit to the Copyright
Office a designation of agent to receive
notification of claimed infringement
must do so by establishing an account
on the Copyright Office’s Web site and
then utilizing the applicable online
template. Paper submissions and
amendments made pursuant to the
interim regulation for the designation of
will no longer be accepted. A service
provider that has filed a paper
designation of an agent under the
interim regulation and desires to remain
in compliance with section 512(c)(2)
must resubmit its designation of agent
using the online template within one
year after [the effective date of this
amendment]. On [DATE one year after
the effective date of this amendment],
designations that were submitted prior
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to [The effective date of this
amendment] shall expire.
(c) Content. All required template
fields must be completed in order for
the submission to be submitted to the
Copyright Office. The person submitting
the designation of agent to receive
notification of claimed infringement
must provide:
(1) The full legal name and physical
street address of the service provider
and, if desired, any related entity that
has a legally recognized relationship
with the service provider and that
shares the same physical street address.
A post office box will not be accepted,
unless in exceptional circumstances and
upon written request by the service
provider, the Register of Copyrights
determines that the circumstances
warrant a waiver of this requirement;
(2) Alternative names, if any, under
which the service provider, and any
related entity, is doing business; The
service provider should include any
names that it expects members of the
public would be likely to use if engaging
in a search in the Copyright Office’s
electronic directory for its designation
of an agent to receive notification of
claimed infringement.
(3) The name of the agent (either an
individual, a specific position, or a title)
designated to receive notification of
claimed infringement. An agent may be
a third party or an employee of the
service provider, but must be a natural
person or a position occupied by an
individual, rather than a business or
office name. Multiple agents may not be
named;
(4) The physical mail address (street
address or post office box), telephone
number, and e-mail address of the agent
designated to receive notification of
claimed infringement;
(5) An e-mail address of the online
service provider for receipt of e-mail
notifications from the Copyright Office
regarding the recurring validation
process or amendments to the service
provider’s directory information;
(6) The full legal name, title, physical
mail address, telephone number, and email address of the person submitting
the designation of agent on behalf of the
service provider.
(7) The full legal name, title, physical
mail address, telephone number, and email address of another person affiliated
with the service provider, who can be
contacted by the Copyright Office in the
event that the person who submitted the
designation of agent cannot be
contacted.
(8) An attestation by the person
submitting the designation of agent that
he or she has the appropriate authority
of the service provider, including any
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59959
related entities listed, if applicable, to
submit the designation of agent on its or
their behalf.
(d) Directory of Designated Agents.
For a period of one year after the
effective date of this regulation, the
Copyright Office will maintain two
directories of designated agents which
in combination will satisfy the
requirements of section 512(c)(2): the
directory consisting of notifications
submitted before [the effective date of
this amendment] (the ‘‘old directory’’)
and the directory consisting of
notifications submitted electronically on
or after [the effective date of this
amendment] (the ‘‘new directory’’).
During this transition period, any new
designation of an agent must be
submitted via the electronic submission
process, and only designations
submitted via that process may be
amended. The directories of designated
agents will be available on the
Copyright Office’s Web site at: http://
www.copyright.gov/onlinesp/. One year
after the effective date of this regulation,
the old directory will no longer be
accessible through the Copyright
Office’s Web site and will no longer
satisfy the requirements of section
512(c)(2).
(e) Validation.
A service provider that has filed a
designation of agent on or after [INSERT
the effective date of this amendment] is
required either to validate the accuracy
of the information contained in its
designation or to amend the information
as appropriate and validate the accuracy
of the amended information within two
years after the later of (1) The filing of
the designation of agent or (2) the most
recent amendment of the designation
that has been submitted by the service
provider. If a service provider does not
validate or amend its designation within
that two-year period, the designation of
agent will expire and will be removed
from the Office’s directory.
(f) Amendment.
At any time after a service provider
has designated an agent with the
Copyright Office, the service provider
may amend the filing online to correct
or update information. The Copyright
Office will maintain all versions of
electronic designations, including
validations or amendments, for
evidence in litigation, but only the
current information in the directory will
be available online.
(g) Fees.
The Copyright Office’s general fee
schedule, located at section 201.3 of
title 37 of the Code of Federal
Regulations, sets forth the applicable
fees for the online filing of a service
provider’s designation of agent to
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Authority: Sec. 3001(f) RCRA, 42 U.S.C.
6921(f).
receive notification of claimed
infringement, periodic validation or
amendment thereof, as well as the fee
for the listing of alternative names.
Dated: September 14, 2011.
Carl E. Edlund,
Division Director, Multimedia Planning and
Permitting Division, Region 6.
Dated: September 21, 2011.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2011–24984 Filed 9–27–11; 8:45 am]
BILLING CODE 6560–50–P
[FR Doc. 2011–24780 Filed 9–27–11; 8:45 am]
DEPARTMENT OF HOMELAND
SECURITY
ENVIRONMENTAL PROTECTION
AGENCY
Federal Emergency Management
Agency
40 CFR Part 261
[EPA–R06–RCRA–2009–0312; SW FRL–
9472–6]
44 CFR Part 67
[Docket ID FEMA–2011–0002; Internal
Agency Docket No. FEMA–B–1220]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Withdrawal of
proposed rule
Proposed Flood Elevation
Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Proposed rule.
AGENCY:
Environmental Protection
Agency (EPA).
ACTION: Withdrawal of proposed rule.
AGENCY:
Because EPA has discovered
additional information which we
believe is pertinent for consideration in
this decision, we are withdrawing the
proposed rule to grant an exclusion for
Republic Services, Inc./BFI Gulf West
Landfill (Gulf West) located in Anahuac,
TX, published on January 28, 2011. This
notice removes the proposed rule
published in 76 FR 5110 (January 28,
2011) for public review and comment.
SUMMARY:
SUMMARY:
srobinson on DSK4SPTVN1PROD with PROPOSALS
FOR FURTHER TECHNICAL INFORMATION
CONTACT: Michelle Peace by mail at U.S.
EPA Region 6, Multimedia Planning and
Permitting Division, Corrective Action
and Waste Minimization Section (6PD–
C), 1445 Ross Avenue, Dallas, TX 75202,
by phone at (214) 665–7430 or by e-mail
at peace.michelle@epa.gov.
SUPPLEMENTARY INFORMATION: Because
EPA has discovered additional
information pertinent to the final
disposition of the petition, we are
withdrawing the proposed rule for
Republic Services, Inc./BFI Gulf West
Landfill (Gulf West) located in Anahuac,
TX, published on January 28, 2011 (76
FR 5110). EPA subsequently received
information after the comment period
which highlighted several deficiencies
in the data submitted by Gulf West. EPA
will return the December 2009 petition
submitted by Gulf West. No further
action will be taken on this petition. A
new petition will be required for this
waste stream.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
17:03 Sep 27, 2011
The
Federal Emergency Management Agency
(FEMA) proposes to make
determinations of BFEs and modified
BFEs for each community listed below,
in accordance with section 110 of the
Flood Disaster Protection Act of 1973,
42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified
BFEs, together with the floodplain
management criteria required by 44 CFR
60.3, are the minimum that are required.
They should not be construed to mean
that the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own or
pursuant to policies established by other
Federal, State, or regional entities.
These proposed elevations are used to
meet the floodplain management
requirements of the NFIP and also are
used to calculate the appropriate flood
insurance premium rates for new
buildings built after these elevations are
made final, and for the contents in those
buildings.
Comments on any aspect of the Flood
Insurance Study and FIRM, other than
the proposed BFEs, will be considered.
A letter acknowledging receipt of any
comments will not be sent.
National Environmental Policy Act.
This proposed rule is categorically
excluded from the requirements of 44
CFR part 10, Environmental
Consideration. An environmental
impact assessment has not been
prepared.
Regulatory Flexibility Act. As flood
elevation determinations are not within
the scope of the Regulatory Flexibility
Act, 5 U.S.C. 601–612, a regulatory
flexibility analysis is not required.
Executive Order 12866, Regulatory
Planning and Review. This proposed
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866, as amended.
Executive Order 13132, Federalism.
This proposed rule involves no policies
that have federalism implications under
Executive Order 13132.
Executive Order 12988, Civil Justice
Reform. This proposed rule meets the
applicable standards of Executive Order
12988.
SUPPLEMENTARY INFORMATION:
BILLING CODE 1410–30–P
VerDate Mar<15>2010
Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–4064, or (e-mail)
luis.rodriguez1@dhs.gov.
FOR FURTHER INFORMATION CONTACT:
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Comments are requested on
the proposed Base (1% annual-chance)
Flood Elevations (BFEs) and proposed
BFE modifications for the communities
listed in the table below. The purpose
of this proposed rule is to seek general
information and comment regarding the
proposed regulatory flood elevations for
the reach described by the downstream
and upstream locations in the table
below. The BFEs and modified BFEs are
a part of the floodplain management
measures that the community is
required either to adopt or to show
evidence of having in effect in order to
qualify or remain qualified for
participation in the National Flood
Insurance Program (NFIP). In addition,
these elevations, once finalized, will be
used by insurance agents and others to
calculate appropriate flood insurance
premium rates for new buildings and
the contents in those buildings.
DATES: Comments are to be submitted
on or before December 27, 2011.
ADDRESSES: The corresponding
preliminary Flood Insurance Rate Map
(FIRM) for the proposed BFEs for each
community is available for inspection at
the community’s map repository. The
respective addresses are listed in the
table below.
You may submit comments, identified
by Docket No. FEMA–B–1220, to Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–4064, or (e-mail)
luis.rodriguez1@dhs.gov.
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