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DoJ Sides With RIAA On Damages 469

Posted by kdawson
from the banding-together-with-bullies dept.
Alberto G writes "As Jammie Thomas appeals the $222,000 copyright infringement verdict against her, the Department of Justice has weighed in on a central facet of her appeal: whether the $9,250-per-song damages were unconstitutionally excessive and violated the Due Process Clause of the Constitution. The DoJ says that there's nothing wrong with the figure the jury arrived at: '[G]iven the findings of copyright infringement in this case, the damages awarded under the Copyright Act's statutory damages provision did not violate the Due Process Clause; they were not "so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable."' The DoJ also appears to buy into the RIAA's argument that making a file available on a P2P network constitutes copyright infringement. 'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'"
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DoJ Sides With RIAA On Damages

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  • The good news... (Score:4, Insightful)

    by nunyadambinness (1181813) on Tuesday December 04, 2007 @04:25PM (#21577703)
    That's not the DOJ's decision to make.
    • Re:The good news... (Score:5, Informative)

      by The Only Druid (587299) on Tuesday December 04, 2007 @04:26PM (#21577725)
      Because we all know, no courts ever consider the DOJ a good source of argument...

      Realistically, this is expected but not necessarily a big deal; had the DOJ presented some new argument here - one which was more powerful than the existing arguments - that would have been problematic. Here, they've done little more than endorse the existing arguments.
  • by advocate_one (662832) on Tuesday December 04, 2007 @04:26PM (#21577717)
    the American legal system, the best justice money can buy... stays bought...
    • by zsavior (1198363) on Tuesday December 04, 2007 @04:55PM (#21578147)
      And yet if you sue a company for killing a loved one, or if a doctor leaves his watch inside your loved ones body, they want you to be limited to how much you can sue them for. She is paying over 1k for a single song. But you have to limit yourself if a corporation or doctor takes your family members life. Good thing we know our priorities.
      • Re: (Score:3, Insightful)

        by OrangeTide (124937)
        It is pretty obvious that Britney Spears and Usher are the priority in our society.
      • Re: (Score:3, Interesting)

        by Atario (673917)
        Well then, the solution should be obvious:
        1. Incorporate
        2. Do everything under the aegis of your personal corporation
        3. Get off scott-free for anything you do
        4. Profit! Er, I mean, chaos!
        • Re: (Score:3, Informative)

          by Orange Crush (934731) *

          Get off scott-free for anything you do

          Or get sued personally when the prosecutor succesfully argues your corporation is a sham and pierces the veil.

      • by westlake (615356)
        And yet if you sue a company for killing a loved one, or if a doctor leaves his watch inside your loved ones body, they want you to be limited to how much you can sue them for.

        What the hell are statutory damages if they are not a limit on damages? The geek is making the same argument as the lawyer or doctor. He just doesn't want to pay the bill. That single song - worth 99 cents on iTunes - may have found its way to 2,000 other PCs.

        • Re: (Score:3, Insightful)

          by Danse (1026)

          That single song - worth 99 cents on iTunes - may have found its way to 2,000 other PCs.
          It's a real shame then they didn't prove that it found its way anywhere at all. We should just assume that huge damage was caused even though there's no evidence of it? Apparently the government believes we should. Well, except for our President of course. He thinks sentences are too tough, at least when they apply to his friends.
        • by Fallen Kell (165468) on Tuesday December 04, 2007 @06:15PM (#21579115)
          That single song - worth 99 cents on iTunes - may have found its way to 2,000 other PCs.

          And they only have proof that it was indexed, not even proof that it made it to ONE other PC. To sue someone and say that the one individual is responsible for all other copies of that file on the internet would then mean that the single person is paying the bill for all those other people who then shared that same file out and others copied from that new location.

          The RIAA is saying that because there are say, 50,000 copies (made up number) of that file on the net, this individual is responsible for all them. And they sue to get damages. They also press suits against all those other 50,000 people who have other copies, and sue each of them, again saying they are responsible for 50,000 copies. So, you are saying that the RIAA gets to sue for 50,000 people each for 50,000 copies, for a total of 2,500,000,000 copies, when there are only 50,000 in existence? Use some logic here. As much as I agree that she owes something for infringement, they should be able to collect damages from that person for the damages caused by other people down the chain. That is why you sue the person down the chain for their part. The problem is, the RIAA doesn't have the evidence to show who did what damage, but that problem shouldn't be the dependent's problem. The damages is always a problem for the plaintiff to show and PROVE. They can not PROVE ANY actual infringement, other then a name, an email, a screen name, and an index, but that doesn't prove how many people connected to her computer and downloaded a full copy of a song.
          • Re: (Score:3, Insightful)

            by cfulmer (3166)
            Statutory damages are not based on actual damages. In most copyright infringement cases, damages are very hard to measure.

            Let's turn this around and say that you actually had to prove damages to have any sort of recovery. In that framework, about the only thing the RIAA could do is get an injunction telling her to stop. But, that doesn't deter anybody from infringing. In fact, it's effectively a license to infringe until you're caught.

  • by PhxBlue (562201) on Tuesday December 04, 2007 @04:28PM (#21577753) Homepage Journal

    Oh, right, because this is the same Department of Justice that doesn't see anything wrong with waterboarding, transporting people to secret overseas prisons, etc. It's the same DOJ that kowtowed to Microsoft pretty much the same day that President Bush swore his first oath of office.

    • by Hatta (162192)
      Yeah no kidding. A branch of the American government, siding with big business? Really? I never thought I'd see the day.
      • Re: (Score:2, Insightful)

        by PhxBlue (562201)

        Try "A branch of the American government that's come to represent the exact opposite of its name." What kind of "justice" department condones torture?

        • by Myopic (18616)
          The kind that accurately, legitimately, and democratically represents the will and opinion of the majority of the electorate. ...an incredibly ignorant and thoughtless electorate.

          If we lived in a monarchy we could blame the king, but we live in a democracy, so blame your neighbors. Half of them *re*-elected this administration. (Not me, though; I'm a blamer not a blamee.)
        • by Skadet (528657)

          What kind of "justice" department condones torture?
          Depends on your definition of "justice".
          • Re: (Score:3, Interesting)

            by dpilot (134227)
            Quite simple. Bush is well known for his malapropisms, so let's file this one into the same category.

            It's a spelling error, and I suspect we're the ones making it. When they say the word "Just-us" we hear it and think they mean "Justice."
  • Impossible? (Score:5, Interesting)

    by juuri (7678) on Tuesday December 04, 2007 @04:30PM (#21577785) Homepage
    'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'"

    Given that the fair market value of a song has been established at $.99 it sure seems like the DoJ is making a directly contradictory statement. They are saying that even though it is impossible for one to know how many accesses there were it's okay to go ahead and assume that number was over nine thousand. Didn't know the DoJ should be out there supporting assumptions... oh well.

    • Re: (Score:3, Interesting)

      by devjj (956776) *

      Incorrect. They are providing reasoning for why statutory awards are not necessarily related to actual monetary damages: instances where determining the exact monetary damage is difficult or impossible.

    • Re: (Score:2, Interesting)

      by 91degrees (207121)
      Well, it's possibly reasonable to go for a high number. The RIAA is wronged and therefore shouldn't lose out. However, there is an upper limit to how many songs you might expect to have uploaded. Assuming most all songs on all p2p networks are pirated then any song on any computer will have been uploaded (on average) slightly less than once.

      However, we can also assume that some people upload more than that. How many times? Once? Twice? I could imagine ten times. I'd say more than that per file i
      • Re: (Score:3, Interesting)

        by sniepre (517796)
        Here's a viewpoint - take the date that the RIAA discovered the song, and move forward until the date the lawsuit was filed. Take the internet speed in question's upload rate.

        How many total possible copies of any of the infringing works could've been uploaded in that time. Even in a month, let's just guess at a low upload rate - say a 128kbit up on DSL.

        That's a 4mb song every 5 minutes, given near BEST circumstances. 12 / hour. 288 / day. So, 8640 transfers in a month, if your ISP doesn't cut you off first.
    • by LordEd (840443)
      The resulting actions of others is also not relevant. If I steal a gun and sell it to someone who then sells it to a 3rd person, am I responsible for the actions of the 3rd person?
  • Love the logic. (Score:5, Insightful)

    by Basilius (184226) on Tuesday December 04, 2007 @04:30PM (#21577789)

    'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'

    Since it's unkown how many other users accessed the files, the possibility that the number is zero is as possible as any other number.

    If you cannot prove HOW many accessed the file, you cannot prove ANY accessed the file. Yet simply making available is a violation anyway.

    The award is ludicrous.

    • by TubeSteak (669689)

      If you cannot prove HOW many accessed the file, you cannot prove ANY accessed the file.
      The same line of thought occurred to me too.
      I took it further and concluded that would make a good argument for not awarding damages, since the plaintiffs didn't show actual infringement...
      But they don't need to.
      The monetary penalty is written into law and it doesn't matter if anyone accessed the file or not.
    • by bahwi (43111)
      Or everyone, and the remaining lawsuits by the RIAA for those songs should be thrown out on account that damages have been paid in full.
    • Re:Love the logic. (Score:5, Insightful)

      by Pharmboy (216950) on Tuesday December 04, 2007 @04:47PM (#21578035) Journal
      Next up:

      Well, you have a gun. We aren't sure how many people you killed, but you might have killed a bunch, so we are going to electrocute you. 9000 times. Thank you.
  • The DOJ is Right (Score:5, Informative)

    by devjj (956776) * on Tuesday December 04, 2007 @04:33PM (#21577821)

    If you RTFA, you'll find that the DOJ is siding with the RIAA because the defendant agreed to the terms put forth to the jury. She acknowledged and went along with the instructions, which included precisely how much she could be liable for if found guilty. In so doing she effectively waived her right to make this claim.

    I'm one of the last people who would take something the DOJ says seriously these days, but their reasoning on this issue is sound.

    More on this at Ars Technica [arstechnica.com].

    • Re:The DOJ is Right (Score:4, Interesting)

      by palladiate (1018086) <palladiateNO@SPAMgmail.com> on Tuesday December 04, 2007 @04:41PM (#21577941)
      Courts have found in the past you cannot waive certain due process rights, and I'm pretty sure they may say you can't waive your rights prohibiting a cruel and unusual punishment.

      Google fails me at the moment, but I remember a case a few years back about a death row inmate arguing he should be allowed to hang, but the courts said he couldn't agree to it because it's cruel and unusual.

      This may be in the same category.
      • by devjj (956776) *
        You're right, and also wrong. While no document can strip you of Constitutionally protected rights, the DOJ is saying that she effectively acknowledged that the statutory damages were not in violation of her rights because she agreed to the instructions. So really, you have two separate issues.
        • Re: (Score:3, Interesting)

          by hung_himself (774451)
          You should admit you're wrong here I think.

          If a court finds her rights were violated - then we agree that no matter what she agreed to or what her opinion is makes absolutely no difference. Since we also agree that she can't waive her constitutional rights by agreeing to the instructions - all we are left with by her implicit acknowledgement is an *opinion* that her rights were not violated. Since she is not a constitutional expert nor has she given any arguments for why she believes her rights were not
        • by palladiate (1018086) <palladiateNO@SPAMgmail.com> on Tuesday December 04, 2007 @05:11PM (#21578367)

          she effectively acknowledged that the statutory damages were not in violation of her rights because she agreed to the instructions.

          And what I said was that the Eighth Amendment may constitute a right you cannot waive. While that right cannot be stripped, it may also be a right you cannot waive, as in you cannot agree to a public dissection (drawing) if the DA wants to pursue that option. You cannot waive your right to be shielded from cruel and unusual punishment.

          However, the same court said in Lockyer v. Andrade that life in prison for shoplifting $150 worth of video tapes was not excessive, so I doubt they'll have a problem with the constitutionality of the judgment.

  • by geminidomino (614729) * on Tuesday December 04, 2007 @04:37PM (#21577895) Journal
    This is the same DoJ that claimed that George Washington and Abraham Lincoln made wide use of electronic surveillance against citizens...

  • you would not be fined $222,000 if you stole a few CDs from Walmart.
    • You might, though, if you made a few hundred copies and distributed them, which is the whole justification behind the monetary damages.
  • From the article summary: "...because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement."

    Sure, people can debate all day long about how much she should or shouldn't be held liable for given her infringing activities. But how the hell can you use other people's possible, but admittedly unverified activities which might have resulted from something you did to exact additional punishment on the "offender?"

    Let's say I'm not paying attention and run over someone's cat. Am I now liable for the possible, but unverifiable, increase in the rodent population in my neighborhood, and consequently liable for potential damages in hospital bills for a contagious disease which might be spread by some lucky rat?

    Someone's being prosecuted for stuff that may or may not have happened, and may or may not ever happen, but nonetheless is regarded as damaging in the eyes of the courts. Wow.

    • by berashith (222128)
      or if you printed fake money, how is it your fault that someone else spent it and a store lost money when the bank didnt accept it?

      or to be more base... if you give somebody a bomb to play with in a field, how are you responsible for the damage done to the local shopping mall?

      Aside from these facts, and the obvious civil vs criminal elements here, I agree with you. We need some kind of different damages for contributing to infringement if this course should be pursued.
    • You're missing the whole point here. If you run over the neighbor's prize show cat that had won numerous awards, there's a reasonable expectation that the cat would have continued winning awards in the future. However the cat could have been run over because it suffered a fatal stroke in the middle of the street a split second before you hit it...

      We award damages all the time for things like. Wrongful death suits, pain and suffering, continued medical care, etc.. The way the law is currently written th

  • by Dekar (754945) on Tuesday December 04, 2007 @04:47PM (#21578029)
    It is impossible to have an exact figure, but an accurate estimate, at least an order of magnitude, is entirely feasible.

    They say they lose billions a year due to piracy. Let's say they are right and are losing 10 billions, not an unrealistic figure [tgdaily.com], but still on the high side.
    There are over 1 million people in America sharing music. We all know it's a lot more than that, but let's be conservative.

    That would leave an average of $10 000 lost due to each file sharer, and that is an the upper limit. Sharing less than 30 songs is probably under the average if there are indeed only 1 million file sharers, so there is absolutely no way $220 000 can be a correct punishment in this case.

    What was so tough about this?
    • Re: (Score:3, Interesting)

      by aadvancedGIR (959466)
      $10000 loss per filesharer each year, are you mad? I live quite confortably well and spend $150 to 200 every month in culture/entertainment, but concerning music, my #1 problem is not CD price or DRM, it's simply to find at least $50 worth of things to good enough to listen so when I found it, I buy it without second though (most of the time, the stuff happens to be about as old as myself, so the payola and other major advertisement tools don't help me).
  • by wile_e_wonka (934864) on Tuesday December 04, 2007 @04:47PM (#21578033)
    Two things.

    1) It seems to me that, given the fact that statutory damages in copyright infringement claims, are allowed in place of actual damages in instances in which actual damages cannot actually be calculated--the statutory damages are an attempt by Congress to estimate the likely actual damages caused to the plaintiff. In this case, that amount seems to be on the side of outragiously overestimating actual damages.

    2) The DOJ argues that a damage of the high award is mitigated by the fact that no one knows how many other people accessed the songs made available by the defendant. This bothers me because it basically states that it is ok to collect damages that were not properly proven (which is obviously not ok).
  • by halivar (535827) <bfelger.gmail@com> on Tuesday December 04, 2007 @04:50PM (#21578083) Homepage
    The DMCA was written by (predominately) Democratic lobbyists, advanced by Fritz "Disney" Hollings (D), and signed into law by President Clinton.

    The Republicans may have been the majority party at the time, but at least own up and take some of the responsibility. This is bipartisan hatred-of-consumers.
    • by Trogre (513942)
      It goes way beyond Clinton. Remember the DMCA is just a local ratification of the WIPO treaty, not much more.

    • Re: (Score:3, Insightful)

      by coolGuyZak (844482)
      Quite possibly because the DOJ is controlled by one or more Republicans at the moment.
  • File sharing math (Score:5, Insightful)

    by CopaceticOpus (965603) on Tuesday December 04, 2007 @04:58PM (#21578195)
    Within a P2P network, the total amount of uploading and downloading is the same. For every packet downloaded by someone, that packet was uploaded by someone. Therefore, the average user found to be sharing songs should be liable for two copies of that song: the copy they downloaded, and the copy they (probably) uploaded. Unless it can be shown that they did more than an average amount of uploading, this is the most reasonable assumption to be made.

    The defendant was convicted for 24 songs. If we count each song as two infractions, this would be like stealing 4 CDs and giving 2 of those away. (Except that stealing the CDs would be worse, because it would be both retail theft AND copyright infringement.) What's the penalty for stealing 4 CDs? IANAL, but I'm pretty sure it's less than 1% of the penalty she received.

    Any rational person would have to call this penalty absurd, unless they had ulterior motives to pretend otherwise.

    (See also my post on why the RIAA thinks they are owed 83 trillion dollars [slashdot.org].)
    • by Basilius (184226)

      (Except that stealing the CDs would be worse, because it would be both retail theft AND copyright infringement.)

      No, stealing CDs is not copyright infringement. It's simply theft. Giving away two of the four CDs you stole isn't copyright infrigement either. You never copied anything and illegally distributed the copy. You might be busted for distributing stolen material, and mailing them to a friend in another state would probably turn it into a felony as it crossed state lines.

      Ripping CDs you stole, THE

    • Rational penalties (Score:4, Informative)

      by palladiate (1018086) <palladiateNO@SPAMgmail.com> on Tuesday December 04, 2007 @05:26PM (#21578567)
      In terms of excessive punishments, California sentenced a man to life in prison for stealing a handful of DVDs from a store. See Lockyer v. Andrade [wikipedia.org], life in prison for stealing $150 worth of DVDs was held by the Supreme Court to not be excessive.
      • not the same (Score:4, Informative)

        by commodoresloat (172735) * on Tuesday December 04, 2007 @07:35PM (#21579867)
        Lockyer's a three-strikes case. He wasn't sentenced to life for stealing dvds; he was sentenced for getting a third felony. I'm not defending that -- I disagree with the three strikes law and I think the High Court made the wrong decision here -- but the decision was about the three strikes law, not about what is a reasonable punishment for stealing DVDs.
  • "..it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.
    [emphasis mine]

    Whoa. What does that have to do with anything? Do these damages preempt later damage claims?

    • by oahazmatt (868057)
      I believe this is being equated to the Defendant serving as an enabler, where the RIAA can argue had the Defendant not made these files available, other parties would not have been able to download said files from the Defendant only to upload them to other, additional parties. While this argument doesn't hold very much water when considering the odds of the Defendant as the sole distributor of the material (which was most likely not the case) it does have a hint of logic to it.
    • by Myopic (18616)
      Everyone on Slashdot makes the mistake of assuming that damages are supposed to equal actual monetary losses. They aren't. They are supposed to be prohibitive, which is something like ACTUAL_COSTS * PROBABILITY_OF_GETTING_CAUGHT. It's that second factor which jacks up the award in the end.

      Let's say she actually caused one dollar of losses (a very very low assumption) and the chances of getting caught are one in a million (also a very very low assumption), then statutory damages might be a million dollars or
  • by samuel4242 (630369) on Tuesday December 04, 2007 @05:04PM (#21578271)
    Imagine someone shares a DRM-free song from Apple iTunes by posting it deliberately on a small file sharing network. Someone in that network turns around and "shares" it with millions. Then the RIAA says, "Okay, you want us to count all of the infringement? We subpoenaed some network and found that the one particular copy of the song has been downloaded 1 million times." [Cue Austin Powers little finger.] At .99 per download, that $990,000 in damages for that one song. And thanks to the fact that Apple listened to the demands for no DRM, we can now trace that one copy of the song back to the rightful owner, the original infringer. Here's a bill for $990,000. We won't bother with just asking for $9250 for that song.

    Now, I realize that many of the million people wouldn't have paid 99 cents for the song in the first place. I realize that the band probably got some publicity. But it sure sounds to me like $990,000 is as fair a number as we can ever come up with. So maybe these statutory guesstimates aren't so bad after all. I've seen file "sharing" networks. I've seen the number of songs sloshing around college campuses. The more I think about it, the more I realize that $150,000 isn't tooo outrageous.

    The so-called copyfighters should be careful what they wish for. If the RIAA is forced to actually count the downloads because some pedantic fool is able to successfully argue that "making available" isn't really infringement, then they're going to do it. And the numbers could be even higher and more damning. Computers can log a huge amount of data and 64 bit machines can count pretty high. :-)
  • by BootNinja (743040) <mack,mcneely&gmail,com> on Tuesday December 04, 2007 @05:10PM (#21578355) Homepage

    'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'

    Maybe I'm way off base here, but why aren't any further acts of copyright infringement the sole responsibility of those who commit that infringement?

    Otherwise, it would seem to me that an affirmative defense would be that the RIAA has already recovered damages for your infringement because they already prosecuted your source.

    Why should the RIAA recieve compensation from me for infringement that may or may not have been perpetrated by someone who is not me?

  • If the owner of a record store left it unattended while going to the bathroom, he should be liable for ever possible for each person who could have come in and duplicated all the records (using a super secret instant duplicator) while he was taking a pee.
  • I don't get it either. If Jammie DLd those materials, just charge Jammie what they would have made on those DLs. It looks like they're going after all the sharing that took place through Jammie, then thy should try and go after all the DLs beyond her for actual damages. Was this a jury of people who had never heard of any of the backstory to all this? RIAA says burn her. Jury says burn her. DOJ says burn her. The rest of the world says hold on. It's like OJ's trial. They managed to find the only 13
  • Many people here are trying to equate her punishment to the actual damages she may have caused. You can't have a functioning society with that mentality. If you were fined actual damages when you broke the law, then everyone would try to shoplift what they were going to buy anyway. If they don't get caught, they get the stuff for free. If they get caught, they pay what they would anyway.

    There has to be a lot more negative for getting caught breaking the law than the damage created. That ensures people will
    • It sounds like you are in favor of punitive damages, and I would think that most of the /. community would not argue with reasonable punitive damages. Damages in this case are not punitive, but statutory, and far beyond reasonable punitive damages. Refer, perhaps to the following:

      http://en.wikipedia.org/wiki/Punitive_damages [wikipedia.org]
      "In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages thr
    • Many people here are trying to equate her punishment to the actual damages she may have caused.

      OK, what are the "actual damages" in this case?

      What she did: making 23 songs available over P2P that were already available over P2P.

      If you can, with a straight face, say that the "actual damages" here are over two digits... you're a hell of a poker player.

      If she had stolen those 23 tracks as a couple of physical CDs, she'd be facing well under $1000 in fines. $1000 seems a pretty hefty disincentive already: at le
  • by DrStrangeLug (799458) on Tuesday December 04, 2007 @05:38PM (#21578719)
    If just making a file available constitutes infringement then just having the money available constitutes paying your taxes.
  • Possible Defense? (Score:4, Interesting)

    by provigilman (1044114) on Tuesday December 04, 2007 @05:39PM (#21578727) Homepage Journal
    You know, I was just doing some thinking, and why not take this supposed "cost of infringement" and apply to the total number of downloads?

    http://hypebot.typepad.com/hypebot/2007/07/itunes-hits-3-b.html/ [typepad.com]

    7/31/07: Apple announces hitting the 3 Billion mark with it's iTunes downloads. Now, assuming that an equivalent amount have been distributed illegally since the inception of the internet we can come up with a conservative estimate of what the damages would look like.

    $9,250 per song x 3,000,000,000 songs = $27,750,000,000,000

    For those of your not used to so many zeroes that's 27.75 trillion dollars. You would have to almost take every sale of music since Edison first made the Phonograph to come up with that kind of money.

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