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How to Read a Book Contract – Non-Competition

20 June 2011

Once more, Passive Guy dips into his Contract Collection for another little horror. (What?! You haven’t contributed to PG’s Contract Collection yet? Click HERE to mend your ways!)

PG doesn’t disclose who, what or where regarding the sources for his contracts and he has modified today’s tidbit to maintain the anonymity of its sources.

While the paragraph heading says, “Conflicting Publications,” it’s really a non-competition clause. The author is restricted from competing with his own work – the book the publisher now controls. And the publisher controls the book with a very broad grant of rights these days.

Here’s the language:

Conflicting Publications

(a)        During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.

(b)        Subject to the terms of subparagraph (a) above, the Author agrees that in no event will the Author publish or authorize publication of any other book-length work of which the Author is an author, contributor or collaborator until six months after publication of the Work.

What do we see?

Let’s touch on a subtle point first. A normal non-lawyer reader would be a little confused by the first paragraph and assume the second paragraph was explanatory. Yes, the second paragraph explains a bit about the first paragraph, but it doesn’t limit the first paragraph.

In fact, the second paragraph is specifically made “subject to the terms” of the first. Theoretically, if there were a conflict between the two paragraphs, the first would govern.

Why is this a subtle point? Someone reading through the contract quickly would likely retain the mental impression that the Conflicting Publications clause said he/she couldn’t write another book until six months after the publication of the first one. If that was fine, a mental checkmark would be placed next to the clause saying, “OK” or something like that.

In fact, the first paragraph is much broader than the second.

PG recognizes this tactic because he did this sort of thing regularly when he was drafting contracts and wanted to slide something past opposing counsel if opposing counsel was a jerk. Obscure one sub-paragraph and place it next to a clearly-stated sub-paragraph so the clear subparagraph effectively overwrites the less-clear one in the reader’s mind.

PG is sure there must be a psychological term that describes this mental overwriting. The legal term for it is “Hardball.”

PG was about to digress on when he feels hardball is justified in contract negotiations, but that’s for another post. For the present post, an author and (in PG’s ever-so-humble opinion) most agents are not equipped to counter hardball tactics by publishers.

Let’s dig in.

First, we’ll do some color-coding to show how PG’s deranged legal mind sees the clause.



Let’s look at the time provisions – marked in yellow.

During the term of this Agreement. In a typical publishing contract currently offered, the author is giving the publisher rights to the book for the life of the copyright. This means the life of the author plus 70 years in the U.S.

This is an exceedingly long period for a non-competition clause. It’s very common for high-tech, biotech and pharmaceutical companies to have their employees sign non-competition agreements. These never last for more than three years after the employee leaves the company for any reason. In California, absent the sale of a business by an owner or part-owner, non-comp agreements are not enforceable for any length of time.

Additionally, in the real world, the scope of the non-competition agreement is often limited to those companies that directly compete with the employer. Depending upon the nature of the employer, a non-comp agreement will often cover only a limited geographic area.

These limitations apply regardless of how valuable the employee is. The head software programmer for the iPad is not restricted from quitting and going to work for a competitor under California law. The employee may be prevented from sharing Apple trade secrets, but he/she is free to go to work for Microsoft.

Since an author is not an employee of the publisher, the laws relating to employee non-competition agreements may not apply. However, the public policy behind those laws – you can’t interfere with someone’s right to earn a living in his/her chosen field – do apply as far as PG is concerned.

The time provision in the second paragraph restricts the author from publishing any book until six months after publication of the Work. (The “Work” is the book under contract.)

Who controls when the Work is published? The publisher. How long will it be until the Work is published? Probably about 18 months from signing the contract, although it can be longer. The timing is up to the publisher.

What does this mean?

Since the author is not permitted to authorize publication of another book, this means the author will be living on whatever portion of the advance is paid before publication (often 50% these days). For how long? Until six months following publication.

PG thinks a reasonable interpretation of authorize publication would prevent the author from signing a publishing contract and receiving an advance for an entirely unrelated book until six months after publication of the first.

So, even if you’re writing up a storm, either make that advance last or go back to being a barista until you’re free to sell another book.

Scope of Non-Compete

Let’s look at the blue portions in the first paragraph.

The author can’t create or permit to be created (more on this later) any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.

What’s any material? What’s based upon?

If the author writes a fantasy novel with an original fantasy creature – we’ll call it a Cypriot Boomslang – the author probably can’t have t-shirts printed for friends and family with an original drawing of a Cypriot Boomslang on them because the shirts would be based upon material in the book.

In fact, the Cypriot Boomslang won’t make an appearance in anything the author does for anyone else except this publisher for the rest of the author’s life.

Material is not a defined term, so it can cover lots and lots of ground.

But Wait! There’s More!

Look at the little red or’s in the first paragraph. The way Passive Guy’s legal mind reads that paragraph is:

  1. During the term of this Agreement [forever], the Author shall not, without written permission of the Publisher [never get it without paying money], publish or permit to be published any material based upon the Work.
  2. During the term of this Agreement [forever], the Author shall not, without written permission of the Publisher [never get it without paying money], publish or permit to be published any material incorporating material from the Work.
  3. During the term of this Agreement [forever], the Author shall not, without written permission of the Publisher [never get it without paying money], publish or permit to be published any material which would compete with its [the book’s] sale [in any form].
  4. During the term of this Agreement [forever], the Author shall not, without written permission of the Publisher [never get it without paying money], publish or permit to be published any material which would impair the rights granted hereunder.

Items 1 and 2 bring up the undefined material again. The author can’t publish any material. The paragraph doesn’t say book or story, although they would almost certainly be material. How many different things does material cover? Perhaps this is left to the imagination of the publisher and its attorneys.

Items 3 and 4 are even more interesting.

Item 3 says the author can’t create anything that competes with the sale of the book or anything derived from the book that is the subject of the contract.

What competes with the sale of a romance novel? Every other romance novel? What competes with the sale of a romance novel written by Big Bubba John? Every other romance novel Big Bubba John ever writes.

With one contract and one advance for one romance, Big Bubba John might be out of the romance business for good if the publisher wants to enforce the contract. He’ll be stuck writing about monster truck races for the rest of his career.

Item 4 says the author can’t create things that impair the rights granted hereunder.

Impair. That’s a lovely word, never defined in the contract. Impair could be construed to cover lots and lots of different acts by the author without much imagination.

The rights granted hereunder. What rights are those? Well, traditional subsidiary rights for one thing – movies, plays, comic books, t-shirts, action figures, etc. So you can’t impair any of those rights with anything you ever write or allow anyone else to write.

But there are far more rights than just traditional subsidiary rights. After getting burned by publishing contracts that don’t mention ebooks, publishers changed standard publishing contracts so the author grants rights to future technology of any type that might incorporate anything from the book. Is that clear? You signed the contract, so don’t you go out and impair any of that stuff or you’ll violate that contract.

Permit or Authorize

The two provisions marked in green extend the author’s obligations to acts of third parties. PG doesn’t like either one, but the first paragraph bothers him the most. The author agrees not to permit to be published anything the Publisher might object to thirty years or fifty years in the future.

Does this place an affirmative obligation on the author to police his/her copyrights to prevent loss or impairment of the publisher’s rights? If the author knows of such damaging acts by third parties, is the author permitting those acts if the author stands by and does nothing?

Contributor or Collaborator

Finally we reach the purple text that applies during the publication-plus-six-months time period.

Neither contributor nor collaborator is defined in the contract.

Let’s go back to that closet romantic, Big Bubba John. What if his wife, Little Bubba Sue, is inspired by her husband’s lyrical prose and decides she wants to write a romance novel as well?

As is typical with husband/wife authors, Little Bubba Sue hands Big Bubba John a stack of paper hot off the printer and says, “What do you think about what I’ve written today? Too many vampires or too few?”

Big Bubba John sits down with a red pencil and dutifully goes through the manuscript making big red X’s, writing in new dialogue and correcting numerous grammatical errors. (Little Bubba Sue went to welding school instead of Yale and is a little wobbly on grammar.)

Is Big Bubba John contributing to his wife’s romance novel? Is he collaborating with her? PG says Yea.

Attorneys who have read this far will say something about privileged communications between husband and wife and they would be correct until Little Bubba Sue blogs about what a wonderful help her big ugly husband was with her vampire romance and dedicates her book to him to show her gratitude for all his editing and suggestions.

What’s the bottom line on this clause?

It is ridiculously easy for the author to inadvertently breach the publishing contract under this clause. Want to sue your publisher for stealing ebook royalties from you? A clause like this would be Hammer No. 1 in the hands of the publisher’s counsel in any litigation between author and publisher. You might win on ebook royalties, but you would lose on something under your non-competition clause.

What are you going to do if you see this contract provision in something you’re supposed to sign?

When you receive a contract with a clause like this in it, you swallow hard, then bravely raise all the issues PG discussed. Your editor, Jane, will say something like, “We hear this rubbish all the time. Passive Guy was cutting his pills in half when he wrote that blog post. This isn’t anything like what we mean by this provision. What this clause really means is XYZ.”

You reply in your sweetest voice, “Oh, Jane, I’m so pleased to hear that. I knew I had the best publisher in the world. So there is no confusion in the future when I’m not dealing with someone as understanding as you are, let’s put XYZ in the contract.”

Why do this if Jane says the contract means XYZ? Doesn’t that solve the problem?

It does solve the problem if:

  1. Jane outlives you by 70 years.
  2. Jane is still working at the same publisher during that entire time.
  3. Jane doesn’t ever have a boss who says, “This company enforces its contracts according to their terms,” or “Das Unternehmen setzt seine Verträge entsprechend den jeweiligen Bedingungen.” (Shout out to all of PG’s fans at Bertelsmann)

In the reality-based world, business contracts last three years, five years, ten years. You might risk your career on Jane’s assurances during those time periods. You don’t want that risk for the rest of your life.

Get it in writing and make sure the writing matches what your agreement really is. Assurances feel wonderful, but solid contracts pay better.

One last lesson in contract analysis before we close our happy discussion.

You might say to yourself, “Well, when the book goes out of print, I’ll get my rights back.”


Depends upon how your Out of Print clause reads.

If your OOP clause ends with “Publisher shall have no further rights to publish the Work,” that clause may not eliminate the publisher’s other rights under the Conflicting Publications paragraphs.

You want your OOP clause to end with something like, “Neither Publisher nor Author shall have any further rights or obligations under this Agreement and this Agreement shall thereafter be null and void.”

Speaking of Out of Print clauses, Passive Guy hasn’t seen any good ones lately, so he will end with a request for more contributions to his Contract Collection.

The Obligatory Disclaimer: Passive Guy is an attorney, but he doesn’t practice law any more. Even promises of free pizza won’t lure him into analyzing your contract, giving you advice on what’s right, what’s wrong, what to do or even where to find the closest courthouse. For legal advice, go hire an attorney who is practicing law. PG only recommends attorneys for close relatives.

Contracts, PG's Thoughts (such as they are)

32 Comments to “How to Read a Book Contract – Non-Competition”

  1. Just looking at the first clause, I’d expect it to limit all works in the same “world” or genre as the one to be published. Which would include things like a short story or bookmark the author would want to release for free to build buzz for the full work.

    Since there’s no time limit, I’d expect it to also potentially bar the sale of other short stories or novelettes in the same “world” or genre until contract ended, barring written permission from the publisher.

    *continues reading post*

    …Er, I guess that makes me abnormal, because I didn’t see the clear one as defining the first one, but as an addendum to the first one. And an equally-nasty addendum, too. No wonder some authors have so many pennames! (But as written, might that clause apply to another penname, too, since it’s the same person?)

    I’m no lawyer, so I don’t know anything about what laws might interfere with the legality or enforceability of those clauses, but the implications are appalling. Go figure authors “can’t make a living writing fiction”. Ulgh.

    So this is pretty much a “We will henceforth own your world and creatures and characters” clause.

    Also, what’s “book-length”? Living Dead Girl is 27k words and sold as a book. (And it’s a darn chilling one, too!) So novelettes are banned from publication, too?

    Nasty clauses!

    • Carradee – You get the idea.

      This is not a classic publishing contract clause, but rather a newcomer that PG has just heard about over the last few months.

      • I kinda figured that this specific clause was fairly new, but clauses to this effect have been around for awhile, right? Otherwise, LJ Smith wouldn’t have been fired from Vampire Diaries.

      • Out of curiosity, how does a clause like this “We will henceforth own your world and creatures and characters” clause apply to an author’s ownership of their copyright?

        There’s no explicit transfer of copyright to the characters/world/etc, but the “we own it” clause plus the one that basically says “you can’t impair our granted rights” makes it sound to me like a copyright grab. You can’t play with them anymore unless we let you. If we let someone else play with them then you can’t sue us because that’s impairing our granted rights.

        This is really an appallingly one sided clause. Would a judge let this stand?

        • Jean – The general rule is the author owns all rights under the copyright unless he/she explicitly transfers them, but I would be very leery about the language you mention.

          The general rule on contracts is that if two people agree in writing to something that’s not illegal, the court will enforce the contract according to its terms. I was never happy going into court if all I had was a claim that the contract was unconscionable.

  2. I have bookmarked this. I’m now officially terrified and will be sure to consult a lawyer if and when I cross paths with a book contract.

    • Sarah – Thanks for the bookmark and I promise there are no non-competition clauses hiding under your bed with the rest of the monsters there. 🙂

  3. This post is incredibly informative. It’s a pity you couldn’t just offer the information without slinging mud.

    and (in PG’s ever-so-humble opinion) most agents are not equipped to counter hardball tactics by publishers

    I regret that poor experiences you’ve had with agents. Mine has proven the exact opposite, most specifically, an exceptionally gifted contract negotiator.

    It added nothing to your post and rarely does from previous posts I’ve read.

    • Guest1 – I’m happy you have had good experience with agents.

      PG hasn’t had bad experience with agents, but knows many authors who have.

      His point is really directed to the fact that, while there are undoubtedly exceptions, most agents are not attorneys and/or are not equipped to discern the dangers hidden in publishing (and agency) contracts these days.

      Looking specifically at the clause I discuss here, I don’t believe any responsible agent who understood the clause would permit her/his client to sign a contract with such a clause included, yet many agents have done that very thing.

      • That’s how I read the comment, PG. An agent is NOT an attorney! To rely upon an agent for good legal advice is foolhardy (not to mention probably illegal on the part of an agent).

        • Christian – Thanks for your comment.

          If agents are negotiating contracts and advising clients on the meaning of those contracts or particular provisions of those contracts, they’re doing work that attorneys do in non-literary settings. Trained paralegals performing services in another field that literary agents regularly perform with publishing contracts would be charged with the unauthorized practice of law.

          I don’t practice law any more, so I don’t care about protecting attorney turf, but literary agents reside in a strange legal sphere. No law of which I’m aware regulates them and anyone can hold him/herself out as an agent, regardless of training or experience.

          If an agent brought an attorney in to consult on legal issues in each publishing contract, I wouldn’t have concerns, but I am not aware that this happens.

  4. I know authors who cannot get that type of clause struck, but who are able to modify it with as many qualifiers as they can. “Book-length work” becomes “historical romance novel of over 40k words set in the Victorian era written under author’s current pen-name.” Not a great solution, of course.

    The publishers see so many of their authors going independently e-book, where (gasp!) many of them are actually making more money, with greater creative control over their product. I see this type of non-compete language as an attempt to keep the author-herd from jumping the fence and finding that, yes, the grass really is greener…

    • Anthea – You raise a good point. Striking the clause isn’t the only way to deal with it. You can effectively neuter the clause with the kinds of modifications you mention.

  5. “Das Unternehmen setzt seine Verträge entsprechend den jeweiligen Bedingungen.”

    I’m not a specialist on Bertelsmann (I gracefully offered myself to them a couple of years ago, but they didn’t want me), but that quote feels like something is missing – maybe an ‘um’ as last word?

    • Stefan – I’m a specialist on Google Translate and am happy for correction of the German (or other languages) it spits out. 🙂

      • PG – Yeah, I suspected that there would be some prosaic explanation like that – but I didn’t want to give up hope that you had got hold of some really disturbing email/memo through one of your fans there and just missed out on the last word…

        Coming back to the non-competition clause: As an outsider I was wondering if this is just a special (nut) case – or is this common (in this extreme form)?

  6. I am amazed a US court would enforce this contractual provision. In the UK, it would be deemed a contract in restraint of trade, and going to court to enforce it would get a judge livid with anger.

    • Thomas – There are some potential US federal anti-trust issues in this type of provision, but it’s not a clear winner. If the author is a resident of the state of California, I think some parts of this clause would have problems passing state law standards.

  7. Excellent post. These clauses have always made my skin crawl.

    “What’s any material? What’s based upon?”

    Interesting question, as I was also thinking this could apply to non-fiction blog posts related to or promoting the work.

    As to the agent business, this is why I’ve become increasingly apprehensive about agents’ qualifications to advise their clients on contracts. My thought is that the way most agents approach contracts is on the basis of “industry practice.” That is, through experience and observation, they know that when the publisher offers up a clause such as above, they in fact generally want (as PG says) “XYZ.”

    And maybe 95% (maybe 99%, maybe 99.9% of the time this is correct, that the client is fine with this advice). But that’s a very bad way to approach a contract. One MUST assume the worst. But in cases like this, an agent can easily get away with “industry practice” and appear to be safely right.

    Mind you, when I say “appear to be,” I am thinking in terms of the fraudulent psychic who says to a mark, “I sense you are concerned about matters of love,” or “you have suffered a loss.” They are not correct in their reading, because they’re fake. They’re spouting vague generalities that are usually correct, and give the APPEARANCE of correctness.

    I’m afraid this is how a lot of very bad agents still get crowed by their clients as contact geniuses. Just because none of the one or two or five contracts YOU’VE signed so far has YET turned around and bit you in the a**, the agent must be a genius (or at least competent). That may not at all be the case. The proof of competence isn’t in the generalities, it’s in the exception.

    Now, it’s been pointed out to me that many agencies (especially larger ones) may have an in-house legal department, or at least an attorney on retainer to deal with any questions.

    It’s also been pointed out to me that since most publishing contracts start with some kind of boiler-plate (and larger agencies have a pre-negotiated boiler-plate with most publishers to use as a starting-point for individual negotiations), that by the time you contract comes along, much of it may already have been vetted by an attorney.

    I applaud all of that, but it leaves a couple concerns:

    Just because you contract is 95% identical to previously vetted contracts, the danger is in the 5% that’s unique to it and it alone.

    Because there are so many familiar stock clauses and the agent deals with so many such contracts, they may fail to notice small changes in those stock clauses. (And as PG has demonstrated, a change of a word, or word order, or punctuation, can have major ramifications.) Of, if they notice them, not having the legal training to really understand the legal meaning, they may underestimate the importance of these changes.

    And thirdly, a stock-clause that may be benign in one contract, might have much darker implications in a contract with changes elsewhere, for example if a term is clearly defined elsewhere in the contract in a way outside typical “industry practice” that the agent might be lulled into assuming.

    My thought is that, if a writer is handed a contract by an agent and they have concerns about something in it, a good question might be, “has this clause been vetted by an attorney IN THIS EXACT FORM AND CONTEXT?”

    But then, I don’t really know diddly, so I’m interested in what the more-informed mind of PG has to say about this…

    • Steven – All good points.

      Many agents tout one of their primary strengths as “knowing how things are done” and some discourage their clients from retaining outside counsel because those lawyers don’t know “how things are done.” So, if everybody is screwing the author, then that’s “how things are done.” The agent is financially motivated not to do anything to cause the deal to fall apart because there is no compensation for failed efforts. Some agents are ethical and won’t push their clients into a bad contract, but some are not.

      I’ve mentioned before that most of the publishing and agency contracts I’ve looked at are simply not very well-drafted contracts separate and apart from their gotcha clauses. If I were still practicing law, I wouldn’t have much problem either breaking or evading such contracts for my clients.

  8. Mr. York wrote, “…this could apply to non-fiction blog posts related to or promoting the work.”

    Yes, but what would be the point of applying it in that way? It’s clearly in the publisher’s interest to have that kind of promotion done by the author.

    I’m old and forget stuff, so PG, if you’ve dealt with the following question before, just ignore me.

    What does your crystal ball say about a situation where an agent has done as you hypothesize in your answer to Christian K.’s comment above? Would it give the author some wiggle room to repudiate the contract? Or would that not be a “fatal flaw” with regard to the contractual relationship between the author and the publisher?

    (If you don’t want to go there, just kill this post. 😀 )

    • LP – Your question about contract wiggle room would be somewhat fact-dependent. If the publisher had reason to know the agent was knowlingly acting against the author’s communicated interests and instructions, there might be an argument about publishing contract validity. However, in the majority of cases, it would be an author/agent issue.

    • PG may have his own take on this, but I don’t think it’s safe in contracts to even assume that the other party will always act in their own interest. In fact, you have to assume that they will act in the most contrary fashion possible, no matter how illogical or irrational it may seem.

      Using the above example, assume you have such a non-compete clause, and blog as part of your promotion of the book. Later, the company is bought by a temperamental multi-billionaire with an ego the size of Jupiter, and this individual gets mad at you for some unrelated reason. Let’s say that you decide to take your best-selling series to another publisher, or your Ford Focus got in the way of his 2-million-dollar Zonda supercar on the freeway.

      At this point, the multi-billionaire calls on the army of lawyers that he keeps around the house the way some old ladies keep cats. He tells them to crawl over ever contract they have, every bit of documentation, everything their private detectives can dig up, and to cause you PAIN.

      So never mind that the blog posts were promotion in the interest of the publisher, they were a technical violation of the contract, and represent one-more-thing to hit you over the head with.

      Therein lies a fundamental difference between “industry practice” and what the contract actually says.

      • Steven – You make a good point about the danger of trying to predict what the other party’s interest may be. In the corporate world particularly, things may be happening that impact the publisher’s attitude toward your book that you cannot fathom.

        And even if you absolutely understand what the other party’s interest is today, it may be different six months from now, particularly considering how fast publishing is changing.

  9. Great Post, I’ve been researching this little nasty clause for awhile now as it was a main sticking point in my husband’s contract. After speaking with his agent, and an attorney that specializes in publishing contracts he confirmed that language very similar (if not identical) to this is in most “big-six contracts”. While I was on the phone he pulled out 5 – 6 of the 500 he has worked on and they all had them. I too see this as a way of keeping an author “locked in” with one house – much like the movie industry in the early days. After all having a non-compete makes the negotiations go pretty much in the favor of the publisher…You don’t like the advance we offer? Well does it look a bit better when you realize you can’t sell the work to any other house as it is prohibited by the non compete?

    In the “old days” you really had no but to sign contracts with such a clause – today…with the increase of self-publishing and small presses successes I hope these start to get removed or at a minimum seriously defanged.

  10. When I read the second paragraph I had this thought and I’m curious whether I’m at all right about it.

    It says “in no event will the Author… authorize publication of any other book-length work of which the Author is an author, contributor or collaborator.” That says to me that if Big Bubba Joe is invited to an anthology, he can only contribute to it (by writing a short story or anything else) if the anthology’s publication date is six months or more past his book’s publication date. Is that correct? It’s a book-length work of which he is a contributor, though his contribution is not itself book-length.

    Or does it only apply if his contribution is book-length? Or can he contribute to a werewolf anthology since his books are about vampires? Or can he contribute a story about the same characters in his book as long as the story doesn’t give away the ending (thus competing with the sale of the book)? Or am I totally off the mark?

    • Clare – The second paragraph is not a model of clarity (neither is the first), but I think the language as is prohibits any sort of contribution to a publication that ends up being book-length. So, a short story contributed to an anthology is out of bounds.

      I think anything with the same characters would be prohibited by the first paragraph.

  11. I’m an author and a ceramist. As a ceramist I just received an email offer where I asked a lot of questions. The response was, “Further details can be provided upon signing an NDA with a no compete clause.”

    It sounds like this is the same ‘no compete clause’ that is being discussed here (but in an artist’s contract). I have no idea what a NDA is (possibly non-disclosure?), but if I can’t ask this person more questions,it would be in my best interest to not be involved with them.

    Thanks for informing us! Really appreciate it!!


  12. Someone mentioned pennames earlier but I haven’t seen them discussed at any length.

    Would a penname also fall under “Author” for the purpose of this contract? If I publish an erotic novel as X am I barred from putting out a non-fiction book on gardening as Y at the same time/within 6 months of publication?

    • Danielle – You’ll have to sign the contract in your real name and using a pen name wouldn’t get you out from under the non-compete.

      Somebody always blabs, anyway.

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