It’s Not Theft

It’s funny, but whenever copyright or piracy is discussed on the internet someone from the “pro copyright” side of argument will inevitably start using strong words such as “theft” and “stealing” when referring to copyright infringement. Someone will correct them, and then the whole discussion becomes derailed into a fight over what does and does not constitute theft and whether or not is is morally virtuous to condone theft. We should probably have some kind of internet law for this – you know, like Godwins law for general discussions. There should be a piracy related clause for the theft bullshit.

Let me say it here once an for all though: piracy is not theft. If it was theft, it would be called that. We have different names for different things for a reason – that’s the only way we can tell them apart. Sometimes several names mean the same things – we call those synonyms. But piracy is not synonymous with theft. Neither is copyright infringement. Do you know how I know? Because I own a dictionary. When two words are synonyms, their dictionary descriptions should say the same thing. If they don’t the words are not synonymous. Copyright infringement and theft have quite distinct definitions. They are separate concepts both in common usage, and in the legal sense.

It is common to equate the two but they are very, very different crimes. You can ask any judge or lawyer. If you get caught pirating movies or music you will not be charged with theft but with infringement and/or illegal distribution. It is a completely separate domain of crime. Theft is usually considered a blue collar crime, while piracy is usually white collar.

Yes, I know I’m arguing semantics but in this discussion semantics are very important. If you are pro-strict copyright enforcement and anti piracy you should want to help people understand why illegal copying is wrong. Calling it theft is simply misdirection – you substitute one crime with another more serious crime – one that caries a higher social stigma. No one can really argue that theft can in any way be beneficial to anyone. But loosening copyright laws could be culturally beneficial allowing people to create derivative works and remixes easier.

Any argument that starts with “Piracy is like stealing, therefore…” is essentially a straw man argument. You are switching the object of discussion to incite emotional reaction in your opponent. Theft is heavy emotionally charged word, and it tends to throw people off their guard. When you equate piracy to theft, it becomes extremely easy to strike it down and if you do it well it shuts people up. Straw man arguments like this are effective. But they are intellectually dishonest. When you use them you are not wining the argument at hand but rather some other easily winnable argument that you cleverly switched to.

The point is that copyright infringement is just that. There is really no need to compare it to anything else. If it is inherently wrong, the wrongness should be self evident. Whenever you have to say “illegal downloading is like…” you are basically obscuring the issue, and redirecting the discussion. There should be no question about whether or not it is right or wrong.

But if people can’t really see this inherent wrongness, and if it is absolutely necessary for you to use a straw man to convince them otherwise then… Well, then maybe there is a point to our discussions. Maybe we should talk about it, and possibly explore the idea that perhaps the copyright law as it exists right now is not an optimal solution. Perhaps it could be changed to reflect the times we live in.

The problem with copyright infringement is that sometimes it is hard to tell who is hurt by it. When you steal my apple I no longer have an apple. When you illegally download my product I potentially lose a sale, but only if you intended to buy it in the first place. If you wouldn’t buy it if an illegal copy was not available then I technically did not lose anything. This makes the whole problem much more complex than theft.

When you look at copyright infringement you have to keep in mind that:

  • Some pirates become paying customers
  • Some pirates never were and never will be paying customers. They would never buy from you, so you don’t technically lose a sale when they download.
  • Some pirates may actually spread the word about you – so you may actually gain sales

It is easy and fashionable to dismiss all of the above as irrelevant. But these are clearly integral parts of the equation. Why should we hand wave them away? The only reason why people dismiss them so eagerly is because they don’t fit into “piracy is like theft” rhetoric. They completely wreck that argument, and so they must be excluded – otherwise the straw man can’t be spectacularly topped over.

Theft causes an actual loss of some resource that then has to be replaced. Copyright Infringement causes an assumed loss that you could potentially incur from sales under a specific set of conditions without actually being deprived of the original resource in any way. They are very different concepts and they should not be used interchangeably.

I wander what would happen if we started using this same strategy to put an equal sign between unrelated crimes – one of which is a minor infraction that millions of people commit every day, and other a serious crime that is contemptible. I know, let’s try this:

I know, I’m going to start saying that speeding on the highway is technically a premeditated vehicular manslaughter. I mean, look at the statistics. Thousands of people die due to speeding every year. You are probably going to tell me that you can exceed the speed limit without actually killing anyone. You will probably try to tell me that people do it all the time without serious accidents. Bah! I say that’s rubbish. That’s crazy talk. You are just saying that because you think breaking the rules is cool. You like to stick it to the man and drive above the speed limit like a maniac. You are trying to rationalize your crime away, but you are nothing more than a murderer. Every person who speeds should be charged with premeditated vehicular manslaughter because under an optimal set of conditions the two become equivalent.

Wait… That kind of makes me sound like some crazy person. Kind of like you sound when you start comparing piracy to theft. They are not the same thing. If piracy was theft, it would be called theft. The fact that somewhere deep down in your heart you feel it is “like theft” does not change how the courts look at it. I’m not making excuses, I’m not rationalizing piracy. I agree that it is illegal under the current law. But can we please just call it what it is, instead of strawmanning?

Why do we need to keep having this discussion. It’s like watching a bad sketch that has all the absurdity an irony of a Monty Python skit, but none of it’s humor:

“But piracy is not theft.”
“Yes it is!”
“I have a dictionary here that says it’s not”
“Bah! It feels like theft to me, so I shall discard your logic and go with my gut feeling on this!”
“Ok, but what you feel doesn’t really matter here. We are discussing facts.”
“Yes it does”
“So you are saying that your gut feeling trumps common sense, logic and a legal definition of the crime?”
“Yes.”
“I give up.”
Ha! So you admit you were wrong! I win.

It’s a bit like that. Only more stupid. And usually someone calls you a fag or a hippie midway through the discussion if you don’t immediately agree with them.

I’m mainly posting this here, so that when we have this discussion in the future (and we will have it many times – it keeps comming back like a bad venereal disease), I can just respond to silly arguments with “Piracy is not theft” and link those words back here. In fact I will probably have to do it in the comments thread below, at which point it will create a recursive loop with no exit. So please, don’t force me to use recursion.

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19 Responses to It’s Not Theft

  1. Alphast NETHERLANDS Mozilla Firefox Windows Terminalist says:

    Unfortunately, it is part of a much wider issue in modern judicial History: the criminalisation of risky behavious. Even in this category, there are always grades and some risk taking is risky for yourself only, while the two examples in your post are risk taking to you and a second person or for a second person only (respectively). More and more, lawyers and prosecutors are actually pushing the limit of offense towards less and less factual crimes. Potentially harming oneself or someone else becomes a crime with heavier penalties than the actual harm would ensure.

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  2. jambarama UNITED STATES Mozilla Firefox Ubuntu Linux Terminalist says:

    “If you get caught pirating movies or music you will not be charged with theft but with infringement and/or illegal distribution. It is a completely separate domain of crime.”

    “Illegal distribution” doesn’t mean anything. The action that gives rise to liability is infringing one of the exclusive rights section 106 of the copyright statute secures to copyright holders:
    1 – reproduce the copyrighted work
    2 – prepare derivative works
    3 – distribute the work
    4 – display or perform the work publicly.

    Copyright holders also get the exclusive ability to sell, license, or otherwise authorize others to exercise all or some of these rights. Actually, I’m not even sure that infringing the rights of a copyright holder is a crime. It is prohibited by law, but that doesn’t mean it gives rise to criminal, rather than civil, liability.

    Of course the statute is riddled with exceptions and whatnot, but exercising any of these rights, without holding the copyright, is what gives rise to a cause of action. There is no statute that says “illegal distribution is a crime” or really anything like theft – where statutes are typically very explicit, e.g. “trespassory taking and carrying away of the personal property of another with intent to permanently deprive the owner of the property.”

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  3. jambarama UNITED STATES Mozilla Firefox Ubuntu Linux Terminalist says:

    @ jambarama:
    jambarama wrote:

    Of course the statute is riddled with exceptions and whatnot, but exercising any of these rights, without holding the copyright, is what gives rise to a cause of action.

    Actually this isn’t quite right. My comment should read – “exercising any of these rights without holding the copyright and without permission from the copyright holder, is what gives rise to a cause of action.” Since obviously blanket licenses (like CC, GPL, BSD, and other licenses), and specific licenses (like what ABC failed to negotiate with cablevision), permit the exercise of these rights in specific ways.

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  4. jambarama UNITED STATES Mozilla Firefox Ubuntu Linux Terminalist says:

    Sorry to post so much here. If I thought a little more carefully, I wouldn’t have needed two follow ups. Before: jambarama wrote:

    Actually, I’m not even sure that infringing the rights of a copyright holder is a crime. It is prohibited by law, but that doesn’t mean it gives rise to criminal, rather than civil, liability.

    I’m sure now, infringement generally isn’t a crime any more than unknowingly selling Toyotas with faulty acceleration is a crime. You won’t go to prison, you aren’t prosecuted by the state, you don’t get the “beyond a reasonable doubt” standard of review, you don’t get a free state appointed lawyer, and you don’t get other procedural protections.

    This was the thrust of Professor Charlie Nesson’s argument in the Tenenbaum case – the crushing penalties for infringement are so severe that infringement should be considered criminal, and all the extra protections should kick in. This argument was apparently a loser.

    This may not hold in all situations – e.g. for commercial or maybe willful infringement – you may be prosecuted by the state and you can go to prison, but that’s not what we’re generally talking about.

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  5. IceBrain PORTUGAL Mozilla Firefox Linux Terminalist says:

    Just want to point out that piracy usually does involve robbery, after they attack and invade the vessel… :)

    Oh, and by the way, I claim that ad-blocking (which everyone seems to perceive as OK) is much more like theft than file sharing: you are actually putting strain and using the site bandwidth, which cost them real money, without paying them back by watching the ads.

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  6. STop DENMARK Google Chrome Linux Terminalist says:

    IceBrain wrote:

    without paying them back by watching the ads.

    I doubt their ads would make me buy anything anyway :)

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  7. Luke Maciak UNITED STATES Mozilla Firefox Linux Terminalist says:

    @ jambarama:

    Yes, you are right. It is not even a crime. This is why all the lawsuits against file sharers out there are civil ones.

    @ IceBrain:

    I wouldn’t really say ad-blocking is stealing either, but it is more harmful. Speaking of which… Are you guys white listing my page? Pleas do if you are not. It’s the right thing to do. I always white list the blogs I like.

    @ STop:

    True, but most programs (like Google adsense) pay you for impressions as well. Clicks pay better, but just viewing the ads does count.

    I never actually bought anything that I found via an advertising banner and I doubt that I ever will. But I still white list the websites I like – especially private blogs.

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  8. copperfish Mozilla Firefox Linux Terminalist says:

    I actually whitelisted your blog yesterday after the article posted on arstechnica.com dealing with the same issue :)

    For me piracy is more about convenience than anything else, i don’t pirate anything because I want to, but rather because the legal route is harder and far more limiting. You can thank international distribution agreements and DRM for that.

    A few examples:

    I rip all my DVDs because I only play stuff on my HTPC.
    I paid for a copy of Torchlight because I wanted to support the developers, but I can only play the pirated version under Wine on my laptop.
    Even if I wanted to buy a specific item it isn’t available in my part of the world because of distribution agreements.

    Piracy in those examples is not theft. Nobody suffered any real or potential loss. In all cases what I did is regarded as illegal.

    I think piracy is sometimes theft, but mostly it is just piracy.

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  9. STop DENMARK Google Chrome Linux Terminalist says:

    And they won’t stop at piracy: free software is the next target, for being “anti-competitive” and “anti-business”.

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  10. Kevin Benko UNITED STATES Konqueror Linux says:

    Let’s back up a step here.

    I strongly object to the term *PIRACY*!!!

    I am not sailing around in a ship, flying a Jolly Roger, and doing the traditional pirate-stuff.

    I would suggest a term that suggests being a proponent of a new or modern business model.

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  11. lessigfan UNITED STATES Opera Windows says:

    Every time a discussion about copyright infringement comes up, a few people have to make the point that piracy involves ships. I think this argument is stupid & a waste of time.

    In many languages, words can have more than one meaning. Piracy can mean boarding and hijacking ocean vessels by force for profit AND infringing the rights of copyright holders. The word has had both meanings since the 1700s, and actually preceded copyright. Many pro-copyright-reform groups have embraced the name – e.g the Pirate Party – as have US courts.

    If you don’t like the term, that’s fine, call it infringement or whatever. That’s what Stallman has done with GNU/Linux and refusing to lump disparate legal theories into an “intellectual property” group. But don’t waste breath insisting that everyone else needs to follow your convention. One legitimate definition of the word piracy includes copyright infringement. Get over it.

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  12. Zel FRANCE Mozilla Firefox Windows Terminalist says:

    I couldn’t find any mention of the term “piracy” in any of the laws we have about copyright infringement.

    I’m not familiar with the US laws, but in here a theft without aggravating circumstances can be punished by up to 3 years of jail and 45k€ fine, while reproducing any intellectual work without holding the rights to do so is also punishable by up to 3 years of jail and 300k€ fine.

    You also risk a 3750€ fine if you circumvent by any means a technical measure meant to protect a software, 6 months of jail and 30k€ fine if you provide such means.

    Civil reparations cannot be lower than the actual value of the copyrighted content, so people with 3000+ mp3s, movies and games would have to pay several million euros (and the fine) if they were convicted.

    I’d say copyright infringement is worse than theft in the eyes of the (french) law. Good thing judges have a little more sense than law makers.

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  13. Matt` UNITED KINGDOM Mozilla Firefox Windows Terminalist says:

    The following is quoted from me on Slashdot on one of the countless discussions that deteriorated into debating different definitions. It got moderated to +5 Insightful too, because Slashdot likes to argue about copyright and I was arguing against the unpopular side :mrgreen:

    It’s mostly the same argument as you make here; copyright infringement is not theft, they’re two distinct and different things that the law is against and conflating the two only serves the purposes of the copyright holders, not the purpose of unbiased discussion.

    The important point for me is that, given that they are two different things, you can debate whether one ought to be legalised without implying that you want to legalise the other. If copyright infringement were simply “theft” then changing the laws surrounding copyright would have to impact on the legal definition of theft too, which would be absurd.

    Copyright infringement is a distinct thing from theft. They are two separately defined legal terms, plain and simple, not the same thing. They are both illegal. They are not the same crime.

    The ethics of whether copyright law should be changed or abolished, whether infringement should be made legal (and hence would no longer be “infringing”) and whether illegal copyright infringement can be right or moral are all entirely separate issues. The only thing I’m saying here is that “Theft” and “Copyright Infringement” are two clear and distinct terms with different meanings under the law. There is no reason whatsoever to conflate them, and pretend they mean exactly the same thing.

    Well, not quite true – there is one reason, and as far as I can see it’s the only reason, and that’s because “Pirates are stealing our music” has more emotional impact then “Our copyright is being infringed”. The whole “you wouldn’t steal a…” campaign, for example, relies on erasing the difference in people’s minds between theft and infringement, to make them feel bad about something they may otherwise have been doing without thinking about it. This doesn’t change the legal side of things, only peoples’ perceptions, but perceptions can be powerful. The industry are using that to their advantage and I for one don’t like their way of doing it, so I’ll insist on correct use of the terminology.

    You could even draw parallels with Orwell (although doing so feels cliched) – the ‘Newspeak’ idea revolved around removing words with similar meanings so that varied and nuanced ideas would be collapsed into a single concept. All forms of political dissent, freedom fighting and the like would be lumped together with terrorism and criminality, under the label “thoughtcrime”, making the not-so-bad sound as bad as the very worst. Putting theft and copyright infringement together under “stealing” is the same – suddenly infringement sounds just as bad as theft because you’re calling both of them stealing.

    Legally speaking, they’re separate, and whether infringement is as morally bad as theft or not is a side issue to be determined separately (and personally) but if we let them convince us that they’re just the same thing then the debate will be over without it ever having taken place.

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  14. Ajzimm3rman UNITED STATES Mozilla Firefox Windows Terminalist says:

    “every person who speeds should be charged with premeditated vehicular manslaughter because”

    You know what? I’d be down with that if they raised the fucking speed limits so I didn’t HAVE TO SPEED FUCK!

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  15. The problem I have is that the “piracy isn’t theft” people are almost always the exact same people who want to argue that “piracy is perfectly okay”. For example: http://i.justrealized.com/media/2008/08/piracy-is-not-theft-handy-guid e.jpg

    See? Piracy isn’t theft. Apparently, it’s not even copyright infringement. It’s “copying” or “sharing”. Personally, I think piracy is a lesser crime than shoplifting (because shoplifting does remove the original). My attitudes towards people who pirate varies depending on their situation. I know people that are poor students. They’re struggling to make ends meet, and are taking out loans. While I still don’t condone piracy in their case, when they pirate, I think of it as a lesser crime than when people with money pirate. I know pirates that have plenty of money, but they pirate because piracy costs them nothing – which means they can keep their money for high-end computers and other expensive things. I see them as a worse than poor people who pirate.

    In the modern world, piracy is easy and you almost certainly won’t get caught. Once you remove the moral boundary (as the “piracy isn’t theft” people want to do), then essentially, piracy is just another method of distribution. For them, buying a game looks like this:
    Amazon.com: $50
    BestBuy: $50
    Piracy: $0

    Of course you’re going to go with the cheapest alternative. In this view, paying is just a donation. The use of the word “theft” is to create some level of resistance to the idea of piracy. “Copyright Infringement” just doesn’t have much of a punch to it. Even further, people can’t relate to being on the bad end of “copyright infringement”, but they can understand being on the bad end of theft. Personally, I think that people who justify piracy should, logically, justify a whole bunch of other bad behaviors:
    – If no one is living in a house, pirates think that they should be able to live there for free (no rent) as long as they don’t damage the house.
    – They don’t think they should have to pay taxes (it wasn’t the government’s money to begin with; the taxes are the “real theft”).
    – They should be allowed to park in pay parking lots or at meters for free.
    – They think they should be allowed into concerts and amusement parks for free. (“Hey, maybe they’ll buy something when they’re inside, or recommend it to friends.”)
    – They should be allowed to ride in other people’s cars for free. (“Hey, you were headed my way.”)
    – They should get free cable TV and free satellite TV, with access to 100% of the channels.
    etc, etc.

    In some ways, pirates can be viewed as people who don’t pay their taxes. Taxes go to produce a lot of things for the community. If they’re not paying taxes, but you are, then you’re paying so other people enjoy the benefits of your tax dollars. Same thing with piracy: if people aren’t contributing (when they would’ve bought something) then I (the copyright-respecting consumer) am propping up the companies that is creating the products that benefit us all. It’s unfair that pirates aren’t contributing, and that the costs fall on those of us who respect copyright.

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  16. vacri AUSTRALIA Mozilla Firefox Ubuntu Linux Terminalist says:

    Saying that piracy isn’t theft because otherwise it’d just be called theft is a poor argument. Using the same argument, burglary, fraud, and robbery aren’t theft.

    I’m kinda in the middle on the piracy issue. I’m in the pirate-a-bit, buy-a-bit category. I think those who say there’s nothing wrong with getting free content and never paying for it are scabs. These people love saying ‘information wants to be free’ when it comes to other people’s work, but strangely don’t say the same thing when it comes to their bank details, social security numbers and so forth. If info really wants to be free, then it’ll be okay to forward contact details and lists of downloaded media to DRM lawyers, right?

    What I really wanted to say though was that I came up with an analogy the other day. Piracy is like jaywalking. Jaywalking is something everyone does. A single instance doesn’t really hurt anyone, and traffic isn’t really affected. But as jaywalking increases, traffic is more and more affected until it comes to a standstill. Like piracy, you’ll never stop jaywalking, but it can be reduced by making it more convenient for people to cross the road legally. It’s not a perfect analogy and isn’t meant to be a direct piece-by-piece comparison, but there are curious similarities.

    Ultimately the semantics are just that. The fundamentals are about creators being remunerated for their work, and users exchanging something of value in return for their entertainment (which they clearly value). Doesn’t matter what you call it. Invent a new word if you have to, but don’t forget the first principles are what it’s really about.

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  17. Dave Mozilla Firefox Windows says:

    Brit raises a valid point I think. Although the difference between someone not paying for a software product, and someone getting in your car because you are going their way anyway is that you can kick that person out of your car. The govt can send you to jail for not paying taxes (see Mr. Capone)

    Software and softdata (like music) falls into its own category. At the end of the day the fact is that if you dont want to pay for it, you going to get it cracked somehow and use it for free.

    The best you can do is let users use the software for 30 days or so, and then popup messages all the time asking them register (and pay) for the software. Maybe disable a few features.

    Then they can use the software in its diminished state, or get it cracked, or pay for it.

    Here in South Africa there is a company that goes around and makes sure businesses are using software that is paid for and licensed. They dont do it to personal users though, just businesses, as they can be fined and have assets taken away, etc. (BSA)

    When I write software to sell, I make sure that it needs to be registered and that the client pays for it. If someone else gets a hold of it, then they going to need someone to crack it, and good luck to them.

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  18. Matt` UNITED KINGDOM Mozilla Firefox Windows Terminalist says:

    @ vacri:
    The jaywalking analogy does kind of work… but to extend it, we now see the pedestrian crossing industry bodies equating jaywalking with carjacking; after all, they both disrupt the traffic, so they must be pretty much the same thing.

    As I see it, there’s a handful of fundamental conflicts in this debate, and none of them are really deeply related to the definition of ‘theft’ vs ‘copyright infringement’

    First, selling copies for any great price is a business model on its last legs because copies are no longer scarce in any meaningful sense. The record labels and big business attached to music are built on top of distribution and marketing (which used to be incredibly expensive, and hence required such a company) but now distribution is effectively free and marketing can happen, if the music is good, almost without any further effort.

    New business models are starting to emerge – donation driven, ad supported, or using the downloads as advertising for the things that really are scarce – concert tickets, merchandise, physical media etc. but the record labels can see themselves being made unnecessary, so they rail against the changing world. I think they’ve had their day and need to adapt or die.

    Secondly, copyright has gone far beyond its original intent – the idea was to offer creators a limited monopoly so that the public domain would be enriched by their work after the copyright term was up. Now the terms are so long that almost nothing that came out in your life will be in the public domain before you die. Every so often some profitable work gets dangerously close to becoming public property and the industry lobbies for a retroactive extension.

    The system is broken, it no longer serves its intended purpose, it only serves the copyright holders (allowing them to continue collecting money for work that was done many decades ago, something no other industry gets to do). I think it needs to be reformed; make copyright terms much shorter, maybe make copyright non-transferable (allow them to be licensed, but not sold) so that the big businesses can’t own music or other works in perpetuity.

    Third, social opinion (or at least, what we can surmise about opinion by behaviour) is in tension with the law. People want to be allowed to make copies of media they own and share them with others, they want to watch media in the manner they choose (device shifting and the like… protected by fair use in some places but forbidden in others) and they don’t want to be hamstrung by restrictions placed by the copyright holder. The law is supposed to be a reflection of the society it governs, so that tension can’t last forever and the law can’t win in the face of adverse public opinion. Sooner or later it’ll have to change.

    I may have gone off on one a bit there… /longpost

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