Summary: Bezos and Ballmer have more in mind than just Windows preference, ‘Linux tax’, and software patents; they also set dangerous precedence in the EPO
A FEW days ago we showed that Amazon does not care about Free software and that its deal with Microsoft was an attack on GNU/Linux [1, 2, 3]. Amazon — now filled with former Microsoft executives — is helping Microsoft’s cause against GNU/Linux, using software patents. Nick Farrell takes Glyn Moody’s scary headline (which we criticised last week) and turns it into another scary headline that says “Microsoft might be planning a patent attack on Linux” (it’s an exaggeration, but Microsoft has already sued TomTom, which is based in Europe).
“Amazon — now filled with former Microsoft executives — is helping Microsoft’s cause against GNU/Linux, using software patents.”Amazon’s history with regards to software patents is very bleak (not to mention remote deletion, DRM, and SaaS). In particular, Amazon has been accused of making a mockery out of the system by pursuing a monopoly on “one-click shopping” in several countries and continents. It turns out that Europe too is included. The president of the FFII cites this post and says that the “EPO validates the Amazon One-click cousin patent (send as a gift), proof that they grant software patents in Europe”
For those who needed another reason to boycott Amazon, here it is. Microsoft is doing the same thing to the EPO and even brags about it. They found workarounds, so they fool the system and ignore the rules.
In other patent news we have:
• UK keeps three times as many patents secret as the US
UK patents are being declared state secrets more than three times as often as those filed in the US, according to information released to New Scientist.
An average of nine secrecy orders were imposed for every 10,000 patents filed in the UK since 2003, compared with less than three per 10,000 filed in the US, figures released for the first time by the UK Intellectual Property Office (IPO) reveal.
• MBTA sued for patent infringement over e-mail alerts on late trains, buses [via]
A pair of foreign companies today sued the MBTA, alleging the system it uses to notify passengers of late trains and buses violates two patents they hold for compiling information on the whereabouts of vehicles and then notifying people of their status.
• False Marking: Lobbying against the Senate Bill
The false patent marking law imposes a fine on companies that label unpatented products as patented “for the purpose of deceiving the public.” Currently, the law allows any citizen to sue false markers on behalf of the federal government and any fine awarded by the court is split between the citizen who brought the case and the government.
Patent law needs reform or abolishment. It offers no value to programmers (they already enjoy copyrights) and it jeopardises many people's lives. █
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“That’s extortion and we should call it what it is. To say, as Ballmer did, that there is undisclosed balance sheet liability, that’s just extortion and we should refuse to get drawn into that game.”
Summary: Why Microsoft’s “extortion” is a serious offence that mustn’t be overlooked; How Free software deals with software patents at present
CHIN Wong from the Philippines is an excellent journalist, but in his latest column he seems to have gotten soft on Microsoft. In writing about Steve Ballmer's potential departure he asserts the following about software patents:
Would you fire Steve Ballmer?
A US federal appeals court upheld a $290-million judgment against Microsoft Corp. and ordered it to stop selling MS Word unless it removed code that violated the software patent of an obscure Canadian company, i4i, that sued it in Texas and won.
The ruling is ironic, given Microsoft’s use of software patents earlier this year to bludgeon TomTom, a Dutch maker of car navigation systems, into settling over its use of the Linux kernel. Ballmer has bellicosely proclaimed that the kernel violates several Microsoft’s patents and has threatened to sue developers and users alike over its use. The company’s suit against TomTom in February was the first time it tried to enforce these patents against the Linux platform.
The author focuses on the TomTom case but misses the more important point about Microsoft using racketeering tactics, which ought to send people like Steve Ballmer to prison (and bring Bill Gates back to court for crimes that he too had helped commit and initiate).
Over in India, a new article from Shree Lahiri makes the decent proposition that “Freedom of software [should be treated as] our birthright” and he also acknowledges Richard Stallman, crediting him in part for the protests against software patents. Lahiri writes:
Freedom of software is our birthright
Tracing the history of free software, Abhijit said, “In 1984, Richard Stallman started the Free Software Foundation and spent most of his time advocating for free software, as well as campaigning against both software patents and what he sees as excessive extension of copyright laws.”
Speaking of Stallman’s contribution to saner law, where are OIN, Linux Foundation and other IBM fronts when it comes to just abolishing software patents? They have other strategies in mind. The FSF and FFII seem to be among very few who are actively committed to the cause. The EFF’s squashing strategy and Peer2Patent’s gardening or voluntary peer review process are still considered somewhat controversial. Here is a new article from The Register that in some way legitimises software patents for the same reason; by labeling them “good” and “bad” (mostly bad) it tacitly claims that some of these patents are acceptable. OIN very explicitly takes this point of view, whereas for Peer2Patent it is still just implicit.
The best (of the worst) patent claims of 2009
El Reg is always eager to lap up the sad, eerie, and unusual of the bunch as they fall into our sights. We’ve gathered up a few of our 2009 favorites published in honor of the year’s end.
A patent is a monopoly, based on the words of the head of the USPTO. Schools rhetorically teach that monopolies are harmful to capitalism, so what gives? More importantly, why is there no police involvement when these monopolies are (mis)used for racketeering [1, 2]? To ignore this is to accept that Microsoft is above the law. █
“IP is often compared to physical property rights but knowledge is fundamentally different.”
–IP Watch on Professor Joseph Stiglitz
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Summary: Patent news from the United States, Europe, and a middle-eastern nation
Nokia and Apple are two patent monsters that we have warned about for years. They are now clashing with one another, so it’s mutual and counter-productive.
Responding to a lawsuit brought against the company by Nokia, Apple® today filed a countersuit claiming that Nokia is infringing 13 Apple patents.
Apple’s response is covered in many news sites [1, 2, 3] and even the Web site of Miguel de Icaza, who refused the see the writings on the wall when Microsoft sued TomTom (and before the FSF made its famous statement regarding Mono).
Over in the UK, the government is doing something rather bizarre with patents:
On the assumption that this is not a practical joke, it now seems that the British government is set to tax the fruits of research and development in order to fund … research and development. What a wonderful incentive to invest, particularly when other countries are encouraging R&D by doing the exact opposite. Merpel says, don’t worry: Britain’s best tax brains will soon find ways of showing that the income in question isn’t derived from patents at all, and the government’s coffers will be none the fuller.
See the comment from Sun’s Simon Phipps (a Brit).
Another Brit, Glyn Moody, has found even more bizarre stuff:
Objectivists: ‘All Property is Intellectual Property’
In other words, if you take a principled approach to IP, you endorse a system that condemns society to stagnation and death. So most proponents, like Rand, realizing this, start making ad hoc, unprincipled, utilitarian exceptions to avoid the most obvious, harsh consequences of a principled implementation of their confused IP ideas.
“Greed knows no bounds,” claimed Microsoft some years ago. It was referring to lawyer fees.
Over in Israel too, the threat of software patents is now looming.
As I have explained in this blog in earlier articles, I consider the copyright double protection idea is problematic since copyright protects the embodiment of the idea and not the idea itself. Why shouldn’t a software invention be protectable against reengineering? Is a 70 year protection against copying of any value in a field where a generation is usually 2 years? Considering software not technical is ridiculous. software is rightly considered an engineering discipline. Since algorithms can be hard-wired into chips or by a machine with valves, the concept of software being different from hardware is somewhat arbitrary. Nevertheless, Lord Justice Jacobs has presented powerful arguments as to why software patents are not in the interest of promoting progress and there is a large open-source community.
Abolishers of software patents (led by the FSF’s Ciarán O’Riordan) have already built this resource page about the subject.
The Israeli Patent Office (IPO) has launched a consultation on whether or not to allow software patents, with a February 2010 deadline. I’ve put the details at the end of this post, but first some background.
* The IPO consistently rejects software patents and business method patents. Examples:
o The 2005 rejection of the 142049 website patent
o The September 2006 rejection of the 131733 sales coupons patent
* Patent Attorney Ehud Hausman, with the support of international pro-swpat lobby group AIPPI, has been trying since 2007 to change this.
* He claimed in May 2008 to have partly convinced the IPO to grant software patents (but no change on business method patents). I’ve no third-party confirmation of this.
Who is funding these lobbyists? They are working for their own wallets. █
“Plager said he regretted the unintended consequences of the decisions in State Street Bank and AT&T. Those rulings led to a flood of applications for software and business method patents, he noted. If we “rethink the breadth of patentable subject matter,” he said, we should ask whether these categories should be excluded from patent protection.” —US. Senior Judge S. Jay Plager, speaking at a symposium at George Mason University
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Summary: The nastiness of patents puts itself up on display and herein we share the truth about this ill system, based on the latest news alone
THIS is a collection of news items that affect Free software by means of law.
Microsoft and Rambus Ambushed the Industry
Microsoft’s de facto PR machine is working to create another patent scare. Mary Jo Foley’s role was mentioned earlier and Ina Fried follows with promotion of exFAT patents.
The File Allocation Table (FAT) format is also licensed out by Microsoft, although its patents there have been the subject of contention, particularly since many distributions of Linux include the FAT formats.
This is also covered by the Microsoft bunch at Ars Technica (Emil) and other Microsoft reporters.
In February 2009, news broke that Microsoft had filed a patent infringement lawsuit against TomTom, alleging that the device maker’s products, including some that are Linux-based, infringe on patents related to Microsoft’s FAT32 filesystem. In March 2009, Microsoft and TomTom settled their controversial patent dispute, TomTom licensed the patents from Microsoft, and stated its intent to remove from its Linux kernel the code that is covered by the patents.
We have covered the TomTom case very extensively and also explained why Microsoft had ambushed the market with FAT. Microsoft is not alone though.
Rambus used submarine patents (or an ambush) in order to penalise all of its competitors [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. Rambus was brought to court over this type of abuse and right now it is trying to escape punishment in Europe.
The American memory chip designer has been fighting allegations that it intentionally concealed that it had patents and patent applications connected to DRAM chips, which later became an industry standard. It’s accused of charging abusive licensing rates for the technology once its “patent ambush” was sprung.
In an hypothetical industry that prioritises progress, Rambus and Microsoft deserve to have the patents in question rubbished and all royalties previously paid to them refunded over time. If the patent system becomes a tool of deception, then The Christian Science Monitor is probably right and the patent system (including USPTO) deserves to be rubbished along with all those patents. To quote Richard Stallman (regarding EPO earlier this year [1, 2] ): “The European Patent Office is a corrupt, malicious organisation which should not exist.” Stallman argues that if it stands in our way, then we should “get rid of it too.”
RPX: Return of the Uber-Patent Harvester
We previously wrote about RPX in [1, 2, 3, 4, 5, 6, 7]. In short, it’s a useless behemoth that only accumulates patents and then offers “protection”. Georg Greve has just described RPX rather politely by writing “When your business plan is a euphemism for “protection racket”…”
Greve is the founder of the Free Software Foundation Europe (FSFE) and he links to what he describes as a “Good article on the reality of software patents.”
Kleiner Perkins Caufield & Byers is well known for the venture capital it brought to great innovations involving computers, health and energy. One of its latest startups is based on an entrepreneurial idea that may or may not be great but is very interesting: helping companies hand over money for mostly bogus legal claims involving patents.
This particular startup, RPX, doesn’t describe itself that way. In fact, it makes a good case that its goal is to help companies, many of them in the tech industry, make the best of the bad situation that is the U.S. patent system. The fact that patent holders and lawyers will end up with money they don’t deserve reflects nothing about RPX but a lot about a system filled with rot.
If you think patents protect plucky innovators and their groundbreaking inventions, you haven’t been paying attention. Patents have evolved into an extortion scheme that hurts real inventors far more than it helps them.
Of course it does. Patents are about protecting monopolies, not protecting innovation. It’s a protectionist measure where the “protected” subject is revenue, not science. It is about investors, not inventors.
There is this new transcript of Richard Stallman on software patents:
The Danger of Software Patents
This is the transcript of a talk presented by Richard M. Stallman on 8 October 2009 at Victoria University of Wellington.
There are also videos of previous Stallman talks which cover the same subject.
Patents Versus Survival
On a couple of occasions earlier this week we wrote about the harms caused to the environment by patents. Check out this new report:
Preservation of IP: One of Many Goals in Copenhagen
The Chamber’s Global Intellectual Property Center (GIPC) has been front and center in this debate, and our position is clear: if governments are serious about addressing climate change, and all agree that new technologies are a vital part of the answer, then IP laws and rights need to be protected in any Copenhagen agreement. Indeed, in our view, a Copenhagen Summit with NO mention of IP at all is a successful conclusion. Current international laws and norms are working, and need to be preserved.
To which Glyn Moody responds with:
Got that? Stuff the environment, we’ve got to protect the *important* things in life, like intellectual monopolies…
Indeed. Here is a touching report on the subject. █
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Summary: Apple’s software patents harm/distract the Web and Linux; Microsoft’s software patents harm/distract Linux; The Gates Foundation makes more investments in patents
EARLIER THIS year we wrote about Apple's abuse of the Web using software patents (Apple also threatened to sue over Linux devices). What’s troubling is that both Apple and Microsoft have a chair at the HTML Working Group (W3C) and Apple can be quite a bit of a bully, which now leads the W3C to modifying APIs.
The W3C has spent the last three months poring over Apple’s patent on remote updating, and the web standards organization thinks the patent can be avoided by careful wording and tweaking a couple of APIs.
Software should not be patentable in the first place and the above is a waste of the W3C’s time. What is Apple trying to ‘protect’ anyway? It also publicly attacked Ogg.
NewsWeek has this new report which targets the hype behind the iPhone and the reality behind developing for Apple [via].
Seeking fortune and fame, entrepreneurs rushed to create programs for Apple’s App Store. That’s not always what they found.
So basically, there may be no more money contributing to Apple’s ecosystem than there is in helping Free(dom) software. It was similar with Palm OS.
Moving on to some other software patents, our reader Yuhong Bao claims that Microsoft’s loadable module [1, 2, 3, 4, 5, 6, 7, 8], which was originally a GPL violation, completely hid this important item of news about the workaround for Microsoft’s FAT LFN patent. From the summary:
Only hours after Microsoft’s Hyper-V Linux patch, tridge submitted a revised workaround patch for MS’s FAT LFN patents. If you don’t remember, the original patch was in response to MS suing TomTom over these patents. This revised version provides better compatiblity, particularly with Windows 98, portable MP3 players, as well as mtools.
More and more people are becoming uncomfortable with the patent system, which a writer at Information Week is now denouncing. His complaint is summarised as follows:
Let’s remember the original purpose of the patent system: to encourage innovation and its broader benefits, not to make people rich.
As Gates and Microsoft grow closer to bankers, worth noticing is this item in the news about JPMorgan and the Gates Foundation hooking up. The Gates Foundation also does more of its notorious investments in patents (i.e. monopolies).
The Gates Foundation funding is for a global decision facility for patents and how they impact on innovation.
The Gates Foundation also invests heavily in patents on life, patents on agriculture (GM crops/foods), and Gates himself started a patent-hoarding firm.
This relates rather nicely to what we wrote this morning about Mirosoft and swine flu. The following segment of a talk provides more insight into the real impact of patents. Patents are not what people are led to believe they are. █
“While I recognize the great value and importance of prescription drugs and strongly support a continued U.S. focus on pharmaceutical research and development, our nation’s seniors cannot be asked to subsidize the drug costs of other wealthy industrialized nations any longer.”
–Michael K. Simpson
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Summary: A cartoon on what’s being done at Microsoft (click image for the full sequence)
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“[W]e should take the lead in establishing a common approach to UI and to interoperability (of which OLE is only a part). Our efforts to date are focussed too much on our own apps, and only incidentally on the rest of the industry. We want to own these standards, so we should not participate in standards groups. Rather, we should call ‘to me’ to the industry and set a standard that works now and is for everyone’s benefit. We are large enough that this can work.”
Summary: Bits of analysis of Microsoft’s mistakes on Web and document standards
IT IS no secret that Microsoft dislikes open standards; they are not good for the shareholders. The integrity of the company often comes later than short-term gain, so it is not a wise strategy, either. According to this gem, it has just become apparent that OOXML is nothing more than a reactionary move caused by the advent of ODF. It was known all along but there is new compelling evidence to support such an argument.
James D. Mason says:
I spent 22 years as the chairman of what is now ISO/IEC JTC1/SC34. SC34 is the committee that standardized SGML in the 1980s and now is responsible for both ODF, supported by many open-source products, and OOXML, the XML released by Microsoft in response to ODF. Neither ODF nor OOXML has anything to do with ODA/ODIF, which have been dormant since the turn of the current century but were still under development in the 1990s in a committee that was parallel to the one that became SC34.
Our past analysis: OOXML is a response. Thank you very much for the confirmation. Stronger language from Mason found in this article.
Thanks to Andre for finding this out. In his country, Germany, Microsoft has been using Fraunhofer essentially as a shill for OOXML. In light of the very latest deception form Fraunhofer, Jones wrote at Groklaw (News Picks):
ODF is totally open to the world. So where might the bottleneck be found, class? Did you really, really think that Microsoft intended there to be real interoperability? Some of us recall very well what happened in Germany in the OOXML approval process and the role this institute played. Remember their words, as translated from the German by a Groklaw volunteer? –
“The beginning standardization procedure of Office Open XML as an ISO standard will lead to a technological development of both standards – Office Open XML and ODF 1.0. The constructive comments that have been made alongside the DIN approval from leading experts guide the way in direction of interoperability” says the head of the department e-Government at Fraunhofer FOKUS and head of the DIN work group translation of document formats. “We at Fraunhofer FOKUS e-government-lab will support the procedure effectively and accompany our lab-partner Microsoft as a member of ECMA International with our know-how in implementing our recommendations.”
In relation to the patent assault on Free software, Jones later used the OOXML saga as an example too, remarking that it proves Microsoft never wanted to interoperate. “Like Microsoft will run right out and do that [give up on patent threats]“, she wrote, “because it just spent a fortune building up a patent portfolio, and it doesn’t plan on using them against Linux. Dream on. It’s not about hating any company, but there is enough water under the bridge to be able to predict that Microsoft probably will use those patents aggressively, as they already did in the TomTom case, and as they do in FUDly ways already. And what makes anyone think Microsoft wishes to interoperate, after watching the OOXML saga? Best to be realistic about Microsoft. The Linux Foundation may feel it has to say stuff like that, but I don’t.”
Microsoft has a long history of fighting against standards rather than accepting that they are needed. Eventually, inevitably, Microsoft joined ODF but did so poorly in a way that may only harm ODF [1, 2, 3, 4, 5, 6, 7]. And now it may do the same to HTML5. As CNET puts it:
The World Wide Web Consortium’s HTML Working Group had been led by IBM’s Sam Ruby and Microsoft’s Chris Wilson. Wilson has stepped down and is being replaced by two others, Paul Cotton, who manages Microsoft’s Web services standards team, and Maciej Stachowiak, who manages Apple’s WebKit WebApps team, according to an e-mail announcement by W3C Director Tim Berners-Lee.
Why are freedom-hostile companies put in charge of the W3C HTML Working Group? We asked that question a couple of days ago, mystified.
“Jimmy the Geek” from Linux Today writes:
About 4 years ago. I could see that Vista was going to kill any momentum that Microsoft had picked up from XP and I was right. I even called the layoffs happening this year.
Sadly some of my friends are caught up in the whole MS layoff situation, which sucks.
My prediction for the next 5 years? Microsoft is going to do a Novell. They are going to try to keep doing what they have always done, despite losing more and more and more market, until in the end they are forced to adopt open source as their core OS.
Well, until then, Microsoft will suffer financially, quarter after quarter. █
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“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”
–Larry Goldfarb, Baystar, key investor in SCO
Summary: As the SCO lawsuit falls deeper into oblivion, it is worth relating this to existing new lawsuits (TomTom and Melco, both settled)
YESTERDAY we came across this curious comment about Microsoft, which said: “if/when their revenue get down far enough… i will expect to see more lawsuits being initiated by MS…. when that start to happen.. MS will have officially “jumped the shark” as they say..“
Based on Larry Goldfarb’s testimony (under oath), it seems safe to say that Microsoft has at the very least funneled money into SCO. Whether Microsoft is also responsible (in part) for initiating the SCO lawsuit is a separate question which we can only speculate about based on circumstantial evidence.
Apart from that, many reporters seem to have not paid attention to Microsoft’s lawsuits against TomTom and against Melco. Both lawsuits were against Linux and they came directly from Microsoft. They came at a stage when SCO was too deep inside a hole, so its ‘FUD factor’ was pretty much annulled. For those who have not been following the SCO saga as of late, in chronological order we have:
With all these scandals behind, it turns out that unXis will not be allowed to buy SCO’s assets after all. From The Register:
A US judge has blocked SCO’s attempt to sell off part of its business in order to fund its ongoing litigation, and appointed a Chapter 11 trustee to oversee the company’s next moves.
SCO was hoping to sell off some of its assets, in order to fund its court battle against IBM and Novell for claimed Linux licenses. For its part, SCO said it was glad not to be pushed into Chapter 7 – full liquidation of the firm.
Support from Microsoft added to suspicions that the case was designed to put litigation-wary enterprises off using Linux.
The next stage was this appointment of bankruptcy trustee
In the latest development to emerge from the sordid SCO saga, a bankruptcy judge has blocked SCO’s proposed asset sale while denying Novell’s motion to force the company in to Chapter 7 liquidation. In his decision, the judge says that SCO’s hopes of successful litigation against prominent Linux vendors are like Samuel Beckett’s play Waiting for Godot.
The SCO Group attempted to stave off liquidation in June by signing a last minute deal with Gulf Capital Partners and a tech firm called unXis. The terms of the agreement, which were finalized only moments before a court hearing, stipulated that SCO would sell its remaining UNIX assets for $2.4 million—a maneuver that could have potentially made it possible for SCO to continue pursuing its bogus litigation against the open source Linux operating system.
Groklaw was the centre of attention regarding this important development.
The judge in the SCO bankruptcy has ruled at last. SCO’s motion to let it sell to unXis is denied. There could be an auction later. The motions to convert to Chapter 7 by IBM, Novell and the US Trustee’s Office are also denied, but alternative relief is granted, and there will be a Chapter 11 trustee appointed. IBM and Novell agreed that a Chapter 11 Trustee was appropriate if he did not convert to Chapter 7, and that is what he has done. That means presumably that SCO management no longer run this show.
There are over 820 comments on that one (which is a rare number by all means) and Heise covered it too, summarising it thusly:
A Chapter 11 trustee has been commissioned to take over the business affairs of the SCO Group, which is threatened by bankruptcy. The trustee will work to guide the company out of the impending bankruptcy according to Chapter 11 of US bankruptcy code, but can also send the company into liquidation according to Chapter 7 and auction individual company assets to the highest bidder. With this order, the Bankruptcy Court in Delaware has removed SCO’s executive board.
Groklaw has a corresponding transcript.
The bankruptcy judge partly bought it, as you know, although he blocked the sale to unXis, questioning their good faith, which is of course why IBM and anyone would care about a sale to them, but for us, who have followed the SCO litigation so closely for six years now and saw SCO’s malice toward Linux with no evidence on the table the public has ever seen, it’s a wonderful laugh. SCO’s “potent claims”, indeed. What IBM and Novell “have done to SCO”. SCO sued them, actually. And Novell prevailed totally against SCO’s allegations of slander of title, which was what SCO sued Novell over, a claim which SCO humiliatingly lost. SCO is not appealing that claim. Just read it for yourself. Page 2 of SCO’s appeal brief lists the issues on appeal, and SCO’s claim of slander of title is not on the list.
Why doesn’t SCO just give up? Is its goal to win this lawsuit or just to prolong the agony and — along with it — the fear, the uncertainty, and the doubt? █
“[Microsoft's] Mr. Emerson and I discussed a variety of investment structures wherein Microsoft would ‘backstop,’ or guarantee in some way, BayStar’s investment…. Microsoft assured me that it would in some way guarantee BayStar’s investment in SCO.”
–Larry Goldfarb, Baystar, key investor in SCO
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