Fairly judging fair use: One Perspective on the Graphic Artists Guild V. College Art Association

Josh Bolick

Josh Bolick AKA Fair Use Police

*This is a guest post written by my colleague and office-mate Josh Bolick. I wholeheartedly support his rabble rousing.


This morning I came across a tweet from the Graphic Artist’s Guild regarding the recent CAA Code of Best Practices in Fair Use for the Visual Arts:

image00

I’ve been reading the CAA’s Code and thinking about fair use as it applies to visual arts in preparation for an upcoming presentation at a university with a strong arts emphasis. As such I was keen to know why the Graphic Artist’s Guild would protest. This is my thinking through the letter, which originated with National Press Photographers Association General Counsel and is endorsed by leaders of other relevant associations.

First, full disclosure, I am not free of bias. I work at Florida State University in the Office of Scholarly Communication where I consider and offer perspective on fair use questions as they arise in our community of researchers. As such, I’m in favor of fair use in the academy and think it’s a valuable asset that should be carefully and thoughtfully applied where appropriate. I’m no copyright radical. I strive to be dispassionate and fair in the consideration of copyright questions and the application of fair use, and value the intellectual property rights of others as well as well as the mission of the academy and researchers. So this conversation is taking place entirely within an academic context, which I think the CAA Code was also aiming for.

Second, I’m not a lawyer. However, I have colleagues at venerable institutions around the country who are. I would love to know what they think and look forward to reading their own reactions (I’m looking at you, Kevin Smith@Duke).

Finally, this is assembled pretty quickly, between meetings and other obligations, while sitting at my desk streaming The Beastie Boys Ill Communication on YouTube. I heartily invite all interested parties to engage with my ideas. If I got something wrong, I’m ready to admit it. And my goal is strictly collegial and respectful of all parties.

The NPPA Response letter is available here [PDF].

The NPPA Letter is represented in block quotes below to make it easily distinguishable from my own analysis, which follows each section. Comments are welcome on the Google Doc where I drafted this. Here we go:

“The undersigned represent the interests of a significant number of graphic artists, illustrators, photographers and other visual artists working professionally in the United States. We affirm that scholars and the public need to have the freedom to create new works and, that frequently, these derivative and new works are based on existing images through the application of the fair use doctrine. But it should also be recognized that professional visual artists create part of their income stream through licensing of their creative labors and that there must be proper balance between the needs of these various communities. Fair use is intended to provide that balance, and should not be used as an excuse to avoid paying a license, where appropriate, because it is perceived to be either difficult to obtain or too expensive.”

I agree, and so does the CAA Code. Simply invoking fair use in order to avoid paying for a license is spurious, disrespectful, irresponsible, and would result in infringement if litigated. That’s why the Code repeatedly includes language like “The writer’s/teacher’s analytic/pedagogical objective should predominate over that of merely representing the work or works used.” The takeaway is that the use has to be justified by the purpose of the use, not just added visual interest or flippant inclusion. At no point does the Code suggest that we can employ fair use to merely avoid paying for a license.

“One of the unfortunate conclusions of the Code in its current form is that copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace. Nothing could be further from the truth. Visual artists want their works used and only seek fair and reasonable compensation for that use. The Code fails to educate the academic arts community on when licensing is appropriate. Each of the undersigned associations provides educational content on their Web sites and/or programming for the education of their members and the general public regarding the full range of options under copyright law, including, but not limited to, fair use. We understand that the Code was crafted to deal with fair use specifically, but believe it does a disservice to your community by not further discussing licensing options.”

Unfortunately, in my admittedly limited anecdotal experience, copyright does often act as a barrier and result in self-censorship, particularly in academic contexts that rely heavily on visual art. A history professor can feel confident excerpting a block of text from another work for the purpose of engaging with the ideas contained therein without worrying about their use being contested. That’s fair use. They don’t think of it as such, because it’s so integrated into scholarly practice as such. As I write this, an art history graduate student just came to our office stressed out about incorporating images into her research. The culture of permission that the CAA Code is seeking to address is directing her research because she can’t navigate the complicated landscape and lacks funds to pay for image licenses. That’s a travesty for research culture. The Code addresses “when licensing is appropriate” by providing a list of limitations to the principle. Beyond the limitations, a license may be appropriate. IMO, the Code accomplishes the stated purpose of the CAA in creating the Code by not going into great detail regarding licensing options, particularly since the undersigned associations have all that information prominently displayed on their own webpages.

“We also have a major concern that the Code itself does not deal with commercial uses made by museums and other non-profits under the claim of fair use, in particular the production of useful articles and coffee table books created for the commercial benefit of those institutions. Additionally, if educators are permitted to claim fair use for all of their classroom materials, publishers may lack the incentive to produce those materials, thus undermining the entire educational publishing business and in turn decimating the market for visual image sales.”

The creation of coffee table books created for commercial benefit falls outside the scope of fair use, and therefore outside the scope of the Code. The “Principle” under section 4 “Museum Uses” states: “Museums and their staffs may invoke fair use in using copyrighted works, including images and text as well as time-based and born-digital material, in furtherance of their core missions, subject to certain limitations [listed below].” Again, if a use falls outside the limitations, such as producing a coffee table book to sell in the gift shop to members of the public for their aesthetic pleasure, then fair use likely does not apply and licenses should be sought to purpose that content as such. Further, classroom use in limited and specific ways is clearly recognized as fair, subject again to the limitations suggested by the Code. Educators will never be able to “claim fair use for all of their classroom materials” unless all of their classroom uses were compliant with the principle given and the limitations listed, based on the 4 factor analysis, which seems highly unlikely.

“Last but not least, as partners with the academic community we would have warmly welcomed the opportunity to participate in the study groups had we been asked.”

I can appreciate this, but it seems like the CAA did its best to include various stakeholders if we can take the CAA President at their word in the opening “Message from the CAA President” and as outlined in Appendix B: How the Code Was Created.

That’s the end of the first narrative portion of the letter. Then we get to specific points:

Analytical Writing

The Code gives the impression that if one intends to write a book about a subject, and includes images that this favors fair use. This practice is in fact contrary to industry practice.

I can only speak for myself, but I didn’t get this impression at all, at least not in the broad sense that you suggest. What is stated is that “in their analytic writing about art, scholars and other writers (and, by extension, their publishers) may invoke fair use to quote, excerpt, or reproduce copyrighted works, subject to certain restrictions.” Where the use of an image clears the limitations, based on the four factors of fair use, that use may be fair and treated as such. Doing so may well be contrary to industry practice, but that’s the “culture of permission” that the CAA is addressing. They’re not saying to reuse images willy-nilly because it makes the book prettier; they’re saying that certain uses are allowed in the absence of permission if the use accomplishes an analytic object and is represented in an appropriate size/resolution to accomplish that end, etc.

While the use of a few selected images in a critical review of an artist’s work, such as an exhibition review, would be an example of fair use; a general review of an artist’s work in which the images are aesthetically used to enhance the text, even by an academic would require permission from the copyright owner.

Agreed. I don’t think the CAA Code suggests otherwise.

There is no automatic “educational” fair use exception, and all fair use factors must be taken into consideration, particularly harm to the potential market, where for many types of works and visual artists, the educational market is the only market.

Agreed; all fair use factors must be considered, but without giving particular consideration to any one over the others. The fourth factor, potential market harm, is no more or less important than the other factors and recent court cases bear this out[a].

Making Art

We believe the recommendation to prepare an “artistic objective” statement for fair use is misplaced. An artistic objective statement is what an artist writes for a gallery, exhibit or retrospective and should not be a “substitute” for the four-factor fair use test.

I think this references the second limitation in this section (Three: Making Art). I don’t think the CAA is saying to “prepare an ‘artistic objective’ statement for fair use. Rather, they’re saying the that use should be justified in view of the objective of the new work, and that artists who do so should be prepared to defend that decision. In doing so artists should work through the four factors, and doing it in writing is a good idea.

“When copying another’s work, an artist should cite the source, whether in the new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so.” This is already a fair use requirement for education/scholarship. And there is always some place to create a footnote.

Agreed.

•We assert that Appendix A, Fair Use Today, is personal opinion and should not be published side-by-side with the Code because it undermines the four-factor test in favor of an expansive fair use “two-key analytic question” test.

It’s not really a personal opinion so much as it’s a professional opinion by a recognized expert. Further, the Code’s Introduction addresses this in the first paragraph: “Appendix A is an essay by Peter Jaszi presenting a perspective on fair use.” And again as a footnote to the Appendix: “*Peter Jaszi wrote this section and is solely responsible for it.” Hooray for context. Also, the four factor test isn’t undermined by the “two key analytic questions.” And Jaszi isn’t saying, by my reading, that members of the community ought to apply these two questions. Rather that “judges today generally focus” on these two questions and lean heavily on the four factors in doing so. He’s not saying, “do this”; he’s saying “this is what judges are doing.”

The final bullet in the Code’s “Limitations” regarding the creation of reference collections states that access should be for “legitimate purposes,” yet that term is undefined.

After looking for this and being confused as to what you’re talking about, I finally found this as the last bullet point under section Two: Teaching About Art. OK, “legitimate purposes” isn’t defined. I suspect they’re referring to pedagogical aims outlined in and subject to the “Limitations” portion to which this bullet belongs.

The Code does not recommend that an academic institution provide copyright education or information when using works that rely on fair use. We suggest that students should be educated about copyright and the need to seek permission in most instances.

I, and I suspect my broader community of colleagues who consider copyright in the academic context, heartily agree that more education and information is welcome. We’re working on it, diligently, though I disagree about “the need to seek permission in most instances.”

“Without participation from all of the stakeholders in the visual arts community there can be no consensus, let alone a set of “Best Practices in Fair Use for the Visual Arts.” As developed, rather than “providing a practical and reliable way of applying” copyright law and fair use, the document creates far more misconceptions than it resolves and encourages misappropriation of copyrighted work rather than the practice of due diligence and licensing. It is not helpful to the courts because it presents biased findings and in fact helps lead the professional community astray with regard to the best way to proceed when seeking to use the works of others.”

As I’ve stated above, the CAA appears to have made a good faith effort to include a broad range of the visual arts community in the production of the Code. I can certainly appreciate that the undersigned organizations would like to have been at the table. I disagree that the Code creates more misconception than already exists (that would be difficult to do given the atmospheric level of misconception that exists regarding copyright and fair use). The Code doesn’t address licensing because that’s outside the scope of the goal of a “Best Practices in Fair Use…” document. I think the goal is to give some guidance in the application of fair use; if your use can’t be considered fair in light of the guide, then permission/license should be sought. The Code isn’t intended to be helpful to the courts, but to practitioners in the visual arts academic community to whom the CAA is speaking. From the Introduction: “Although a code cannot control the judicial interpretation of fair use, it helps courts to become familiar with best practices in a professional community when called upon to rule on fair use.” As to whether the Code, “in fact helps lead the professional community astray”, I guess that’s a matter of opinion.

Very Best,

Josh Bolick

CC-BY this sucker. Reuse at will.

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Clarity.

“Climbing the ranks” is a really, really weird thing. I feel like I do less and less of my job-y things, and more of professional/service-y things. Like being invited to Edit a Volume on something.*

One hangup I have – despite the chance that I might lose some great opportunities, I’m not willing to bend on some things, like, for example, my commitment to open access and clarity on authors rights. I honestly believe that too often questions are not asked about how and why academic publishing happens the way it does, and so it never changes. I am fortunate to be in the position to not be tenurable (librarians are “specialized faculty” at FSU) and therefore I do what I want in terms of my research and scholarship activities. Like this email I just sent back to that Publisher, who kindly asked me to Edit that Volume.

First let me say I am honored to be considered. I am very interested in being involved, and would need more detail on what work would be expected of me, deadlines, etc. I’ve never had the opportunity to work on such a large scale project before. 

Also, as you might expect, I’d need to have clear commitment and understanding of your stated goals for an open access version of this content. I understand that you have a business to protect, but I have strong feelings about the necessity to make quality scholarly work open and available to the public. I would have serious reservations about contributing to a project that could not live up to my standards of openness, respect for authors rights, and consideration of the limited resources of students and libraries, your primary markets.

Thanks again for this great honor and I hope to hear from you soon on a direction forward. 

I am truly honored to be at a place in my career that these opportunities are coming my way. And I hope they continue to. But it is more important to me that I consider how my actions have effects beyond my own career. Being conscious about the danger of perpetuating a system I hardly have faith in(academic publishing as we currently know it) may hamper my career, but to be honest I probably don’t have time to Edit that Volume anyways. And I’d rather my career be made on a principle/platform for change than acquiescence to “the way things are.”

N.B. I post these correspondence here not to puff myself up but to shed as much light on the system as I can. This is my act of professional disobedience, talking about they who we do not talk about, the publishers who hold our careers in their hands.

* currently in secret planning stages, thus the secrecy.

Its Our Time: Three crazy ideas for LIS to “own” open access.

This is my “repent and ye shall be saved” talk, prepared and presented at ACRL-NY’s 2014 symposium on the topic of Academic Librarians and Open Access.

Slide01

Let me give away all my secrets up front – I’ve only been a librarian for three years, scholarly communication is the only job I’ve ever had in a library, and I’ve never known librarianship without HathiTrust, DPLA, campus/funder open access policies, The Code of Best Practices for Fair Use in Research Libraries, research data management, and digital humanities. I’ve never done reference. Never put together a collection development plan. Never once recommended a book to a patron. Best yet, Librarians are untenured faculty at Florida State, so I have nothing to lose by challenging the scholarly communication system as we know it.

In developing this talk, I thought I had a new idea. But then, reviewing some of the other things I worked on this year, it turns out I am really just a broken record on a soapbox. So if you have read or heard anything I’ve done recently, feel free to stop reading and begin uploading all your publications to your institutional repository while I blather on.

Most of the discussions about open access and the academic library have been how we can provide services and support to the campus – what we can do to support OA rather than what we can do to DO OA. I’m much more interested in the latter.

There is a time for coalition building, but there is also a time for action.

I titled my talk “Scholarly Communication is People” because I believe that is the number one thing that we have lost over the 8 years that Open Access Week has been observed in libraries internationally. In the beginning, we (libraries) made it about money (the Serials Crisis); scholars have made it about their rights to their work; funders have made it about a return on investment; policy makers have made it about civic life. I believe all those things are true, but what we overlook too often is that the academic enterprise, and by extension all this damn writing we do, is about making better humans. The only real reason open access matters is because of the potential it offers. The possibility that a member of the public, disconnected from higher education, will discover academic research that matters to their real life is the reason I wake up. And we have done a disservice to the public by making it all about us.

My mantra, when thinking about open access and academic librarians, is simply this, borrowed from colleagues in the digital humanities – Less yack, more hack.

Slide04

To that end, here’s one of the crazy things I’ve done this year:

Slide05

And another:

Slide06

And, the Journal of Librarianship and Scholarly Communication just published an article based on a talk I gave at the Library Publishing Forum in March, titled “Free to All: Library Publishing and the Challenge of Open Access,” asking what is our responsibility, as we move into publishing roles, to advance an open access agenda with our partners?

You can imagine the variety of responses that I might have gotten to any of these. My entire professional output this year has basically been, “so, what are we really doing here?” The good news is its not just me, alone on my soapbox.

Here’s what we currently know about open access and academic librarians: Slide07

UPDATE: there are currently 11 OA policies in libraries. The Open Access Directory lists only “unanimous faculty votes.” ROARmap represents a fuller list of policies. Thanks to Jen Waller at Miami U – Ohio, where they passed a policy in 2012, for catching this.

Since 2009 there have been 7 open access policies passed specifically in academic libraries (Oregon State, University of Calgary, U Oregon, Gustavus Adolphus College, U of Northern Colorado, Wake Forest, UNC-Greensboro). Of course, there are many other instances where campus OA policies apply to libraries also, but these represent an important subset of campus open access policies.

We have a 10 year old, international, disciplinary pre-print archive that is entirely underutilized as a tool for disseminating and discovering scholarship in our field.

The Directory of Open Access Journals lists 143 OA journals (97 in English). Several of my personal favorites are College and Research Libraries, In The Library with the Lead Pipe, Code4Lib, Weave, Journal of Electronic Publishing, and the Journal of Librarianship and Scholarly Communication.

Out of 14872 signatories on the Cost of Knowledge Elsevier boycott, 389 self-identify as hailing from the Library and Information Sciences, including 8 students in library school.

This is all great, encouraging progress. However, after a brief literature review the picture looks a little more grey.

Slide08

A 2007 study surveyed 10 research libraries (9 ARL) and found that “library faculty members are not practicing what they generally advocate.” Only 50% of the respondents considered the copyright policy of the journal to be important, and only 12% had exercised the right to self-archive.

A 2009 study reported that 77% of respondents agreed that principles of OA relate to the purpose of academic libraries, but only 46% agreed that “OA would fail without active involvement of libraries.”

In 2011 Holly Mercer studied the open access behaviors of academic librarians, and concluded that while 49% of articles published by librarians in her study were openly accessible, 94% were eligible to be open.

Earlier this year, Chealsye Bowley and I dug deeper and discovered that we are almost halfway there on many measures — 54% of the LIS journals we reviewed allow the author to retain copyright, while the publisher receives a license to publish; 45% of the journals allow pre-print and post-print archiving; 49% offer gold Open Access publishing options that require an author processing charge (APC) ranging from $300 to $3,000; 56% of our LIS journals are owned by commercial, for profit publishers. The remainder are supported and published by library consortia, libraries, universities and/or University Presses, and a large chunk from our societies and associations.

What does it all mean? We’re getting better, but not as quickly or publicly as we could be.

I believe that we’re at a place where we’ve got the campus support model going pretty well. It’s well past time for us to critically examine the research practices of our own profession and to take steps to change it. This is where we’re at, what I’d like to discuss is where we could be going.

Slide09

1) All librarians should/can be invested in Scholarly Communication and open access.

Because evolution. New roles for new times. In the past 3 years, most of the new hires at my library have been “functional specialists” in brand new positions. Our field is evolving and being in the know about scholarly communicition is great, but doing it for our own research is better.

Because example. I’m literally just tired of all the best examples of the potential greatness of our open access future being from Physics, BioMed and Digital Humanities.

Because it’s super easy, and it flows from and touches everything that we “believe” in – our heritage of “access for all.”

2) All libraries need a scholarly communication initiative.

Because the populations we serve are being taught poor scholarly communication habits that will continue to perpetuate a misguided system.

Because scholarly communication it is multifaceted. Most people think of a tripod of Scholarly Communication: an institutional repository, a campus open access policy, and an open access fund. But really “scholarly communication” is just Publishing 101: how does peer review work, what is/are Open Educational Resources, Why Creative Commons, what are the best practices for utilizing Google Scholar, are there best practices for professional social networking, digital project management, effective data management strategies, etc. When we define “scholarly communication” not by our library-land buzz word idea of what it is, but as the practice and habits of scholars and researchers effectively passing information between one another… much of what is being done in many libraries could be wrapped into a nice little ScholComm package. “We don’t have a repository” is not a good enough excuse anymore, because your faculty are already using ResearchGate, Figshare, Mendeley, and they need to know how to use those platforms legally and most effectively. The true bottom line for an effective scholarly communication program in my opinion is copyright education. If everyone that interacted with the library left with a firm grasp on their own copyrights to the things they create (including especially scholarly works) the system of academic publishing would change itself overnight.

3) A scholarly communication initiative builds peer-partnerships with researchers and scholars

Because respect. As the library organization evolves, the campus must develop a new perception of the librarian. We do research too, and must be treated as such.

Because collaboration. All things research/scholarship in the future will have elements of collaboration, and what we bring to the table (information skills, copyright knowledge, project management, cross-disciplinary perspective, etc) is invaluable. Not to mention time and people to devote to advancing new research practices like data curation, or grants compliance to federal funders open access mandates.

Because Scholarly Communication is people. We need to invest in making new connections, in new ways, with our colleagues beyond the library. It’s as necessary for the continued relevance of the library as it is for the advancement of the research/teaching agenda at an institution.

Here are some specific things that we can be involved in to change the scholarly conversation: Slide10

OpenCon – A group of young and early career researchers devoted to working toward a more equitable research ecosystem. Included especially folks outside of libraries.

ARCS – Advancing Research Communication and Scholarship. A new conference focused on the evolving an increasingly complex scholarly communication network, “deeply committed to building a conference that explores and respectively debates the different and even conflicting ideas of what a better system of scholarly communication is and how to build it.” Inviting folks outside of libraries.

Triangle Scholarly Communication Institute – The theme this year was “Scholarship and the Crowd,” i.e. how do we connect scholarly work beyond the ivory tower? Teams and working groups including scholars, publishers, technologists, etc., working together to explore this idea. Inviting folks outside of libraries.

Library Publishing Coalition – Newly founded organization, facilitating key connections with University Presses, an essential partner in academic publishing, whose goals align closely with ours. We should push LPC to become our advocate for change as publishing evolves around us.

Slide11What can we DO to change our own research practices?

Acknowledging that not every librarian will be a researcher (Jill Emery points out there are many different ways to support open access), those of us that do produce research have some unique opportunities.

  1.  Pledge. If Erin Mckiernan can do it and survive in neuroscience, we can do it too. Inspired by that article that Chealsye and I wrote, Stuart Lawson over at JISC crowdsourced an LIS open access declaration. Shockingly few people have signed on, and/or heard about it. I think public announcements about our principles are important to changing perceptions about libraries.
  2.  Follow through. Deposit your work in repositories. Change your publication contracts. Reuse other peoples CC-licensed work. Contribute your work to open access journals. Its imperative that we model the behavior we are asking from our campus communities.
  3.  Go Forth. Imagine scholarly communication beyond the PDF, platform/technology agnostic, mobile, agile, big data-ed, experimental, no-textual, multimedia, etc. What could it be, and why aren’t we going to push our field to do that next big thing?

Here’s my big idea(s):Slide12

Lets negotiate a SCOAP3-type deal with Taylor and Francis. They currently hold most of the LIS journals, and we continue to rent our own research back from them. It would be a “Big Deal” on our terms, for our own work.

Lets build an Open Access Journal of Librarianship – borrowing models from PLoS, f1000, and other megajournals like rapid publication, post-publication open peer-review, high volume of submissions and publishing.

LISarxiv – lets utilize e-LIS as an active, productive, international pre-print server and speed up the production and consumption cycle of our own field. Slide13

What would happen if next year for open access week all academic librarians vowed to live up to our principles, start taking responsibility for changing our own scholarly communication practices, refused to continue to perpetuate a system that continues to prove its blatant disdain for author’s rights, libraries budgets and the good/right of information access to the global knowledge ecosystem?

In conclusion, two points – we need to just do it, and we can and should consider a broader swath of what we already do to be “scholcomm” work.  But what I’m most interested in is us just doing it.

Less yack, more hack.

Bibliography available on Zotero

Recommended Citation:

Vandegrift, Micah (2014): Scholarly Communication is People: Three crazy ideas for LIS to “own” open access. http://dx.doi.org/10.6084/m9.figshare.1273504

The Place Beyond the CDRS

Report back from my time at Columbia U – CDRS.

The Lib Pub

Last week, I was honored to serve as a Visiting Scholar at Columbia University Libraries Center for Digital Research and Scholarship (CDRS). It all began with a wayward tweet, the details of which are collected as a Storify, but I wanted to also “problemitze” and “interrogate” (my favorite, gold standard cultural studies lingo) my impressions as they are still fresh in my mind. Beyond the good conversations, what did I learn about the state of library publishing? Or, really, what did I learn about libraries doing good, interesting, productive work outside of what is considered the traditional library role? For the first time in my life, I took really good notes, so lets see what I can mash them into…

First, its difficult for me to reflect on CDRS detached from the personalities that drive it. Much of my desire to spend time there was due to connections I made…

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As Iron Sharpens Iron…

More rabble from me. Anyone surprised?

The Lib Pub

[I never officially introduced myself on the blog, so, hello. I’m Micah. I’ve written some other stuff over here.]

5LPTweet

I am very pleased to have just submitted a paper to the Proceedings of the Library Publishing Forum, to be published in the Journal of Librarianship and Scholarly Communication. Needless to say, these are both groups that I believe in, support, and generally think are awesome, great, wonderful things that are important parts of my professional life. That said, in submitting my paper I took a careful look at the options presented to me as an author. Here is the cover letter I included with my submission:

This submission is intended for the Proceedings of the Library Publishing Forum. It is based on a panel session, focused on “Alignment with Open Access Publishing Policies.”

Due to the nature of this publication (JLSC) as a web-only journal, I…

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