The Regulation of Liberty: free speech, free trade and free
gifts on the Net
by Richard Barbrook
‘What makes the constitution of a state really strong and
durable is such a close observance of [social] conventions that natural
relations and laws come to be in harmony on all points, so that the law...
seems only to ensure, accompany and correct what is natural.’ - Jean-Jacques
Rousseau. (1)
The State in Cyberspace
The rapid expansion of e-commerce depends upon effective
legal regulation of the Net. As in the rest of the economy, courts and police
are needed to enforce the ‘rules of the game’ within on-line marketplaces.
Theft remains theft even when committed with the latest technology. Since the
Net encourages its own forms of anti-social behaviour, governments also have to
update their legislation to counter the new threats from so-called
‘cyber-terrorism’. (2) Trespass laws must now protect computer systems as well
as physical buildings. Not surprisingly, media corporations expect that the
courts and the police will carry on protecting their intellectual property.
Anyone who distributes unauthorised copies of copyright material over the Net
must be punished. Anyone who invents software potentially useful for on-line
piracy should be criminalised. Like other companies, media corporations need a
secure legal framework for conducting e-commerce with their customers. As in
the old Wild West, business will only prosper once law and order is established
on the new electronic frontier. (3)
This new common sense has displaced the fashionable
anti-statism of a few years ago. According to the Californian ideology,
national governments are incapable of controlling the global system of
computer-mediated communications. Instead, individuals and businesses will
compete to provide goods and services within unregulated on-line marketplaces.
The advance to the hi-tech future is simultaneously the return to the liberal
past. (4) Above all, this nostalgic ‘New Paradigm’ supposedly not only delivers
greater economic efficiency, but also extends individual freedom. For instance,
state regulation of broadcasting will become obsolete once everyone can buy and
sell programming over the Net. Just like after the American revolution, public
institutions will only be needed to provide minimal ‘rules of the game’ for
people to trade information with each other. (5) In their constitution, the
Founding Fathers formally prohibited government censorship of the press: the
First Amendment. This ‘negative’ concept of media freedom emphasised the
absence of legal sanctions against publishing dissident opinions. Like their
fellow entrepreneurs, writers and publishers should be able to produce what
their customers want to buy. Free speech is free trade. (6)
For decades, experts and entrepreneurs have predicted that the
emerging information society would realise the most libertarian interpretations
of the First Amendment. They have never doubted the eventual triumph of their
hi-tech vision: one virtual marketplace for trading information commodities.
Instead of buying physical objects, people would purchase on-line versions of
books, newspapers, films, television, radio, music, software and games - and
also sell their own creations. Above all, this pay-per-use form of
computer-mediated communications would have copyright protection hardwired into
its social and technical architecture. The First Amendment is trading
intellectual property within cyberspace.
‘Anyone with a computer and some organised information
located on it can offer the information for sale. The customers are as close to
the data base as their telephone. Publishing of information is thus likely to
become a more competitive industry...’ (7)
Intellectual property has long been seen as a commodity just
like all other commodities. Yet, at the same time, the sellers of information
have always wanted to avoid fully alienating their products to their customers.
Even on primitive presses, the costs of reproducing existing publications were
very much lower than making the first copy of a new work. As well as justified
by liberal philosophy, copyright laws were also a pragmatic solution to the
problem of plagiarism. The state enforced the monopoly of particular
individuals over reproducing specific items of information to reward their
creativity. (8) Unlike political censorship, liberals believed that this
economic censorship was essential for media freedom. For instance, the Founding
Fathers included copyright protection alongside the First Amendment within the
American constitution. If free speech was synonymous with free trade, the state
had to defend intellectual property. (9)
In early copyright legislation, the ownership of information
was always conditional. Just as media commodities were never fully alienated,
no one could claim absolute ownership over intellectual property. Instead,
copyrights could be lawfully expropriated for a ‘fair use’ in the public
interest, such as political debate, education, research or artistic expression.
(10) However, during the last few decades, these restrictions on copyright ownership
have been slowly disappearing. According to hi-tech neo-liberals, all
information must be transmuted into pure commodities traded within unregulated
global markets. In their Californian ideology, media freedom is the ‘negative’
freedom from state interference. Yet, in practice, the marketisation of
information requires more legal regulation of the Net. For instance, national
laws and international treaties have already been adopted to cover the on-line
trading of media commodities. Even if nation states give up trying to censor
the content of the Net, their courts and police will be needed more than ever
to defend the ownership of copyrights. (11) As John Locke emphasised long ago:
‘The great and chief end of... Mens... putting themselves under Government...
is the preservation of their Property.’ (12)
The Digital Panopticon
While the Net remained a predominantly text-based system
used by academics and hobbyists, media corporations could happily ignore the
emergence of this participatory form of computer-mediated communications.
According to the experts, the majority of the population was only interested in
new information technologies which would offer a wider choice of media
commodities. However, this ostrich strategy became increasingly untenable as
more and more people went on-line. Along with making their own entertainment,
Net users also enjoy sharing information with each other. For instance, many
owners of music CDs give MP3 copies to their on-line friends - and even to
complete strangers. Much to their horror, media corporations have slowly
realised that the Net threatens the core of their business: the sale of
intellectual property.
The owners of copyrights are now demanding that the state
launches the ‘war on copying’. (13) The courts and police must prevent
consenting adults from sharing information with each other without permission.
In a series of high-profile cases, industry bodies are suing the providers of
technical facilities for swapping copyright material. (14) At the same time, media
corporations are experimenting with encryption and other software programs
which prevents unauthorised copying. (15) However, this anti-piracy offensive
is proving to be only partially effective. For instance, the music industry’s
attempts to close down Napster simply encourages people to install more
sophisticated software for swapping music. (16) Even worse, the failure to
agree a common method of encryption means that MP3 has become the de facto
standard for distributing music over the Net. Contrary to neo-liberal
prophecies, the transmutation of information into commodities is becoming more
difficult in the digital age.
Since intellectual property can’t be protected within the
existing Net, media corporations want to impose a top-down form of computer-mediated
communications in its place: the digital Panopticon. (17) If everyone’s on-line
activities could be continually monitored, nobody would dare to defy the
copyright laws. When information was sold as a commodity, media corporations
would be able to control its subsequent uses. Across the world, security
agencies are already developing ‘Big Brother’ technologies for placing every
user of the Net under constant surveillance. For instance, the Chinese regime
deters dissent by spying on the on-line activities of its citizens. Even the
elected governments of the USA and the EU like snooping on the e-mails of their
real or imaginary enemies. (18) According to the Californian ideology, such
oppressive behaviour would become an anachronism in the unregulated virtual
marketplace. Yet, only a few years later, it is commercial companies which are
pressing for the monitoring of private Net use to defend their intellectual
property. Until there is some fear of detection, people will carry on
spontaneously sharing copyright material with each other. Ironically, the
‘negative’ freedom of the First Amendment now justifies the totalitarian
ambitions of the digital Panopticon. As the head of the Motion Picture
Association of America warns: ‘If you can’t protect that which you own, then
you don’t own anything.’ (19)
Despite the futurist rhetoric of its proponents, the digital
Panopticon perpetuates an earlier stage of industrial evolution: Fordism. Ever
since the advent of modernity, each transient burst of technological and social
innovation has been idealised as an a timeless utopia. During the last century,
the Fordist factory didn’t just become the dominant economic paradigm, but also
provided the model for politics, culture and everyday life. (20) The media corporations
now want to impose this top-down structure on computer-mediated communications.
Like workers on an assembly-line, users of the digital Panopticon will be under
constant surveillance from above. Like viewers of television, they can only
passively consume media produced by others. The new information society must be
built in the image of the old industrial economy. Free speech should only exist
as media commodities.
The Hi-Tech Gift Economy
Many Left intellectuals also believe that the Net will - sooner
or later - be replaced by the digital Panopticon. How could the version of
computer-mediated communications devised by poor academics and insignificant
nerds triumph over the structure championed by wealthy and influential media
corporations? (21) Ironically, these gurus disprove their own masochistic
predictions when they themselves go on-line. Like everyone else, they don’t
primarily use the Net to consume media, but to send e-mails, swap information,
conduct on-line research and participate in network communities. While there
can be nothing new about more television, interactive collaboration over the
Net is novel. The digital Panopticon is a future which is already history.
For the emerging information society is being built
according to principles laid down by the scientists who invented the Net.
Funded by the state and foundations, academics collaborate with each other by
giving away their findings in journals and at conferences. Scientists had no
need for on-line systems for trading information commodities. Instead, they built the code of the Net in the image
of the academic gift economy. Designing for their own use, they invented a form
of computer-mediated communications for sharing knowledge within a single
virtual space: the ‘intellectual commons’. (22) Above all, the pioneers of the
Net knew that the publication of findings across many different books and
journals was hampering scientific research. From Vannevar Bush to Tim
Berners-Lee, they developed technologies which could overcome this fragmentation
of academic knowledge. The passive consumption of fixed pieces of information
would become the participatory process of ‘interactive creativity’. (23)
As the Net spread outside the university, its new users
quickly discovered the benefits of sharing knowledge with each other. There has
never been much demand for the equal exchange of commodities when people can
access the labour of a whole community in return for their own individual
efforts. (24) Many non-academics are also striving to overcome the fixed
boundaries imposed by the commodification of information. For instance,
musicians have long appropriated recordings for DJ-ing, sampling and remixing.
(25) The popularity and capabilities of the Net is intensifying these
ambiguities within the economics of music-making. The MP3 format doesn’t just
make the piracy of copyright material much easier. As importantly, the social
mores and technical structure of the Net encourages enthusiasts to make their
own sounds. The passive consumption of unalterable recordings is evolving into
interactive participation within musical composition. (26)
What began inside scientific research is now transforming
music-making and many other forms of cultural expression. Back in the
early-1990s, only a few academics and hobbyists could access this open form of
computer-mediated communications. A decade later, almost every academic
discipline, political cause, cultural movement, popular hobby and private
obsession has a presence on the Net. Whether for work or for pleasure, people
are creating websites, bulletin boards, listservers and chat rooms. Although
only a minority are now engaged in scientific research, all Net users can
participate within the hi-tech gift economy. A few hope that network
communities are prefiguring the co-operative and ecological societies of the
future. Some are convinced that ‘interactive creativity’ is the cutting-edge of
modern art. Most simply participate within on-line projects as a leisure
activity. Far from being displaced by the digital Panopticon, the ‘intellectual
commons’ of the Net continues to expand at an exponential rate. Free speech is
a free gift.
What’s Left of Copyright?
The Net is now proclaimed as the new paradigm of society.
Business, government and culture are supposed to restructure themselves in its
image: flexible, participatory and self-organising. (27) Although often seen as
pioneers of the hi-tech future, media corporations are terrified of this
emerging paradigm. For the rapid growth of the Net is exposing the contingency
of their intellectual property. As information separates from physical
products, copyright loses its apparent basis in nature. Quite spontaneously,
most people are opting to share knowledge rather than to trade media
commodities over the Net. Technological progress is symbiotic with social
evolution. Free speech can flourish without free trade.
The media corporations are desperate to reverse history back
to the previous paradigm: the Fordist factory. As in old sci-fi stories, they
dream of giant mainframes spying upon everyone’s on-line activities. Like
members of the secret police, the owners of copyright are nostalgic for the
Cold War days of ‘Big Brother’. However, history has moved on. The centralised
vision of computer-mediated communications is already technically obsolete. How
much computing power would be needed to make a detailed analysis of every piece
of data in the information flows passing across the Net? How could constant
top-down surveillance be imposed on all peer-to-peer file-sharing within
cyberspace? But, without constant monitoring from above, the effectiveness of
encryption and other security devices is limited. As hackers have repeatedly
proved, anything which is encoded will be eventually decoded. When no one is
looking, media commodities will spontaneously transmute into free gifts on the
Net.
Since there is no technological fix for protecting
copyright, the media corporations can only preserve their wealth in one way:
state power. The police and the courts must deter people from pirating
intellectual property or inventing software for making unauthorised copies. The
social mores and software codes of the Net must be criminalised. Only fear of
punishment can force everyone inside the digital Panopticon. For the media
corporations, the ‘negative’ form of media freedom is now synonymous with state
enforcement of economic censorship. The law must be obeyed. The Net must be replaced
with the digital Panopticon. Free trade is more important than free
speech.
According to the Free Software Foundation, the growing
contradiction between legality and reality within the Net can only be resolved
by extending the scope of the First Amendment. The economic interests of the
few should no longer take precedence over the political liberties of the many.
The ‘negative’ concept of media freedom must now apply to private corporations
as well as public institutions. Above all, the state should refrain from
enforcing not only political censorship, but also economic censorship. (28) As
privileges of copyright disappear, information should be regulated in a more
libertarian way: ‘copyleft’. Although producers should still be able to prevent
their own work from being claimed by others, everyone must be allowed to copy
and alter information for their own purposes. Free speech is freedom from
compulsory commodification. (29)
Even this proposal isn’t radical enough for some Net
pioneers. For instance, Tim Berners-Lee decided that the original programs of
the web should be placed in the public domain. Instead of making proprietary
software for sale in the marketplace, this inventor was developing tools for
building the ‘intellectual commons’. His web programs were much more likely to
be adopted as common standards if all residual traces of individual ownership
were removed. Being a scientist funded by EU taxpayers, Tim Berners-Lee was
happy to give away his research to anyone who could benefit from more accessible
computer-mediated communications. Owned by nobody, the web could become the
common property of all. (30)
In the prophecies of the hi-tech neo-liberals, all
information was going to be inevitably transformed into unalloyed commodities.
Inside the digital Panopticon, everyone would be forced to prioritise a ‘single
business model’: trading intellectual property. (31) Yet, when given a choice,
almost everybody prefers the bottom-up Net over this top-down version of
computer-mediated communications. Crucially, the absence of intellectual
property within the Net has never been an obstacle to the successful
commercialisation of computer-mediated communications. On the contrary, many
dot-com entrepreneurs have discovered that more profits can be made outside the
protection of the digital Panopticon. Businesses trade more efficiently with
their suppliers and their customers when everyone uses open source software.
Employees collaborate with each other much more easily within the
non-proprietary architecture of the Net. (32) Despite their wealth and
influence, media corporations are unlikely to persuade their fellow capitalists
to adopt the digital Panopticon. While serious money can be made on the
existing Net, why should businesses adopt a less flexible and more intrusive
form of computer-mediated communications?
Even for the trading of intellectual property, there is no
pressing need for investing in expensive copyright protection systems.
Information can still be commodified through other tried-and-tested methods:
advertising, real-time delivery, merchandising, data-mining and support
services. (33) While these techniques remain profitable, the weakening of
intellectual property within the Net can be tolerated. Increasingly,
information exists as both commodity and gift - and as hybrids of the two. No
longer always fixed in physical objects, the social distinction between
proprietary and free information becomes contingent. For instance, the Linux
operating system can either be downloaded without payment from the Net or be
purchased on a CD-rom from a dot-com company. (34) This hybrid existence is not
confined to ‘cutting edge’ software. For instance, the same dance tune is sold
on vinyl, given away on MP3 and sampled to create new sounds. The passive consumption
of fixed pieces of information now co-exists with the participatory process of
‘interactive creativity’. Free speech is both free trade and free gifts.
Making Media
According to current copyright legislation, this new form of
free speech is simply a new type of theft. Information must always remain a
commodity within cyberspace. Yet, within the Net, free speech is evolving into
the fluid process of ‘interactive creativity’. Information exists as
commodities, gifts and hybrids of the two. Oblivious to this growing
contradiction, politicians carry on tightening the legal protection of
copyright at both national and international levels. (35) They are determined
to help their local media corporations to compete successfully within the
global marketplace. As a result, the letter of law criminalises the on-line
activities of almost every Net user. For instance, giving away bootleg MP3s is
stealing the intellectual property of media corporations. The ‘negative’
concept of media freedom prohibits political censorship only to justify
economic censorship. Free trade is state power. (36)
Yet, in their daily lives, everyone knows that there is
almost no chance of being punished for swapping MP3s. The existing copyright
laws are increasingly unenforceable within the Net. If only for pragmatic
reasons, the concept of media freedom now needs be extended beyond freedom from
political censorship. For instance, in nineteenth century Europe, Karl Marx
argued that free speech shouldn’t be confined within free trade. The Left had
to struggle not only against political censorship, but also economic
censorship. Crucially, the removal of legal controls was an essential
precondition, but not a sufficient foundation for free speech. Everyone also
had to have access to the technologies for expressing themselves: the
‘positive’ concept of media freedom. (37) During the Fordist epoch, the Left
almost forgot this libertarian definition of free speech. For technical and
economic reasons, ordinary people appeared to be incapable of making their own
media. Instead, the Left supported public service broadcasting so its leaders
could gain access to the airwaves. Free speech was restricted to elected
politicians. (38)
With the advent of the Net, this limited vision of media
freedom is becoming an anachronism. For the first time, ordinary people can be
producers as well as consumers of information. Marx’s ‘positive’ concept of
media freedom is now pragmatic politics. Instead of making media for them, the
state can help people to make their own media. For instance, public service
broadcasters can nurture network communities and telecoms regulators can
encourage infrastructure investment. (39) Above all, the state must reverse the
recent tightening of the copyright laws. For the ‘positive’ concept of media
freedom precludes vigorous economic censorship. The widespread ‘fair use’ of
copyright material should be recognised in law as well as in practice. The
rigid enforcement of intellectual property must give way to official toleration
of more flexible forms of information: bootlegs, copyleft, open source and
public domain. ‘Fair use’ is free speech. (40)
For most people, the weakening of copyright protection is
someone else’s problem. They are unconcerned that trading of commodities in the
old media must co-exist with the circulation of gifts in the new media. (41)
Even neo-liberals are realising that the trading of physical commodities is
much easier outside the digital Panopticon. While e-commerce will always depend
upon legal regulation, ‘interactive creativity’ among Net users has little need
for courts and police. When copying is ubiquitous, punishing people for
stealing intellectual property will seem perverse. Instead of formal laws, most
on-line activities can be regulated by the spontaneous rules of polite
behaviour. (42)
‘The more perfect civilisation is, the less occasion has it
for government, because the more does it regulate its own affairs, and govern
itself...’ (43)
Sooner or later, the state will abandon its attempts to
impose economic censorship on the Net. Even the media corporations will
eventually have to accept the demise of information Fordism. Instead of
copyright enforcement, government intervention can focus on extending and
improving access to the Net for all people. The ‘negative’ freedom from state
censorship must evolve into the ‘positive’ freedom to make media. In the age of
the Net, free speech can become: ‘...the right to make noise... to create one’s
own code and work... the right to make the free and revocable choice to
interlink with another’s code - that is, the right to compose life.’ (44)
=======================================================
Richard Barbrook is co-ordinator of
the Hypermedia Research Centre, University of Westminster, <www.hrc.wmin.ac.uk>.
=======================================================
Footnotes
(1) Jean-Jacques Rousseau, The Social Contract, page
98.
(2) For instance, the British government is introducing
legislation which includes any actions which ‘seriously interfere with or
seriously disrupt an electronic system’ within its definition of ‘terrorism’.
See Will Knight, ‘Hackers Will Become Terrorists Under New Law’, page 1.
(3) For an analysis of increasing legal regulation of the
Net, see Lawrence Lessig, Code.
(4) See Richard Barbrook and Andy Cameron, ‘The Californian
Ideology’.
(5) See Mitch Kapor, 'Where is the Digital Highway Really
Heading?'.
(6) For an analysis of the origins of the First Amendment in
English liberalism, see Leonard Levy, Emergence of a Free Press. An
English liberal mandarin later defined ‘negative’ freedom as: ‘...the area
within which the subject - a person or group of persons - is or should be left
to do or be what he [or she] is able to do or be, without interference by other
persons...’ Isaiah Berlin, ‘Two Concepts of Liberty’, pages 121-2.
(7) Ithiel de Sola Pool, Technologies of Freedom,
page 211.
(8) See Christopher May, A Global Political Economy of
Intellectual Property Rights, pages 16-44.
(9) See Richard Barbrook, Media Freedom, pages 7-18;
and Leonard Levy, Emergence of a Free Press, pages 220-281.
(10) See Christopher May, A Global Political Economy of
Intellectual Property Rights, pages 45-66.
(11) Despite denouncing state regulation as obsolete, Newt
Gingrich’s neo-liberal think-tank still saw that: ‘Defining property rights in
cyberspace is perhaps the single most urgent and important task for government
information policy.’ The Progress and Freedom Foundation, Cyberspace and the
American Dream, page 11.
(12) John Locke, Two Treatises of
Government, Mentor, New York 1965, page 395. For a socialist remix of this
liberal analysis, see Eugeny Pashukanis, Law and
Marxism.
(13) This analogy with the repressive ‘war on drugs’ is made
in Richard Stallman, ‘Freedom - or Copyright?’, page 2.
(14) See the Recording Industry Association of America,
‘RIAA Lawsuit Against Napster’; and the Motion Picture Association of America,
‘DVD-DeCSS Press Room’.
(15) For instance, all the major record labels are members
of a consortium to develop encryption methods for copyright-protected music,
see the Secure Digital Music Initiative website.
(16) For instance, see the Gnutella and Freenet websites.
(17) See Howard Rheingold, The Virtual Community,
pages 289-296. The dystopian vision of the Net is inspired by the symbol of
oppressive modernity in Michel Foucault, Discipline and Punish.
(18) See Elmo Recio, ‘The Great Firewall of China’; and
Duncan Campbell, ‘Inside Echelon’.
(19) Jack Valenti talking about the potential threat from
the DeCSS decryption program in ‘Film Studios Bring Claim Against DVD Hackers
in Federal Court’.
(20) See Simon Clarke, ‘What in the F---’s Name is Fordism’.
(21) For instance, Robert McChesney says: ‘It’s almost an
iron law of US communication[s] media... that... the corporate sector comes in,
and... muscles all... other people out of the way and takes it over.’ Corporate
Watch, ‘Towards a Democratic Media System’, page 3.
(22) Lawrence Lessig, Code, page 141. Also see
Michael Hauben and Rhonda Hauben, Netizens, page ix.
(23) Tim Berners-Lee, ‘Realising the
Full Potential of the Web’, page 5. Also see Richard Barbrook, ‘The
Hi-Tech Gift Economy’; and ‘Cyber-communism’.
(24) See Rishab Ghosh, ‘Cooking Pot
Markets’; and Richard Barbrook, ‘The Hi-Tech Gift Economy’.
(25) See Bill Brewster and Frank Broughton, Last Night a
DJ Saved My Life; and Sheryl Garratt, Adventures in Wonderland.
(26) See Jacques Attali, Noise, pages 133-148. Also
see Romandson, ‘Interactive Music’.
(27) From academic research to management theory, this new
paradigm now fascinates the cutting-edge of intellectual life. For instance,
see Manuel Castells, The Rise of the Network Society; and Jonas
Ridderstråle and Kjell Nordström, Funky Business.
(28) See Richard Stallman, ‘Freedom - or Copyright?’. Some
American judges have already defined computer programming as a form of free
speech, see Patricia Jacobus, ‘Court: Programming languages covered by First
Amendment’.
(29) See Free Software Foundation, What is Copyleft?.
(30) See Tim Berners-Lee, Weaving the Web, pages
78-80.
(31) See Tim Berners-Lee, Weaving the Web, pages
70-71.
(32) See John Hagel and Arthur Armstrong, net.gain.
(33) See Esther Dyson, Release 2.0, pages 131-163.
(34) See Robert Young, ‘How Red Hat Software Stumbled Across
a New Economic Model and Helped Improve an Industry’.
(35) See Christopher May, A Global Political Economy of
Intellectual Property Rights.
(36) See Lawrence Lessig, Code, pages 30-60.
(37) See Karl Marx, 'Debates on Freedom of the
Press'. In contrast
with its ‘negative’ predecessor, ‘positive’ freedom is defined as: ‘I wish to
be... a doer - deciding, not being decided for, self-directed and not acted
upon... by other men as if I was... a slave incapable of... conceiving goals
and policies of my own and realising them.’ Isaiah Berlin, ‘Two Concepts of
Liberty’, page 131. For this socialist concept of political
rights, also see Karl
Marx, ‘On the Jewish Question’.
(38) See Richard Barbrook, Media Freedom, pages
55-73.
(39) See Richard Barbrook and Andy Cameron, ‘The Californian
Ideology’, pages 63-68.
(40) See Richard Barbrook, ‘Cyber-communism’,
pages 26-35.
(41) For a discussion of the ‘fragmentation of copyright’,
see Christopher May, A Global Political Economy of Intellectual Property
Rights, pages 144-157.
(42) Among early users of computer-mediated communications,
such spontaneous self-regulation was dubbed ‘netiquette’, see Michael Hauben
and Rhonda Hauben, Netizens, pages 63-4.
(43) Tom Paine, Rights of Man, page 165.
(44) Jacques Attali, Noise, pages 132.
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