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Some visitors to TPV have reported difficulties in seeing the embedded PDF documents in this post. PG first observed this problem this morning – Thursday, May 21 – (everything seemed to work as planned for PG yesterday) and managed to get the embedded PDFs to show up after refreshing the screen a couple of times. You may want to try holding down your Shift key when you refresh the screen.
As you can see below, PG has provided an alternate way for you to view the documents if the embeds don’t work/haven’t worked for you. PG apologizes for any aggravation this issue has caused.
Beginning Original Blog Post:
As observant visitors to The Passive Voice have noticed, PG included a post titled Plagiarism 2020 yesterday. Today, we’ll talk a bit more about plagiarism, focusing on filings in an interesting lawsuit pending in the US District Court in the Central District of California.
Here are the principal pleadings to date.
NOTE: If you have difficulty viewing any of these PDF documents in this post, following is a link to a shared Dropbox folder that contains all the documents, numbered in the order in which they were filed with the Court (You don’t need a Dropbox account to access this folder) https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0First-Amended-Complaint
PG will provide a bit of explanation and commentary. (You can page through each document by moving your cursor over any page, which will reveal up and down arrows plus a zoom feature.)
If you are easily bored and want to see the most interesting document PG found during his exploration of the Court’s files (which are public records), you can scroll way, way down to the end of this post to view Exhibit C to one of the documents you will read about if you don’t immediately jump to the end.
Exhibit C appears to be the result (perhaps only part of the results) of a computerized analysis comparing the entire text of each of the two books at issue in this case to determine the ways in which they are similar to one another – the core question in a copyright infringement case that does not involve actual copying of all or a substantial portion of a copyright-protected work.
If this type of analysis proves useful and is accepted by courts, the subjective opinions of various “experts” who compare each of the texts by reading them and creating conclusory lists or summaries of similarities or differences may be replaced by something that is more objective and can provide a basis for a more accurate and predictable standard for where the line is between “inspired by” and “copied from” lies.
The Complaint is filed on behalf of Pamela DuMond, an individual author.
The Complaint names four different defendants:
- Farrah Reilly a/k/a Emma Chase (for those visitors to TPV from outside of the United States, AKA stands for “Also Known As”. PG assumes Farrah Reilly is a pen name under which Ms. Chase writes.)
- Emma Chase LLC – It appears that Ms. Chase may operate a limited liability company which may or may not have rights to her book and/or receive proceeds from her book.
- Diversion Publishing Corporation d/b/a (Doing Business As) Everafter Romance
- Simon & Schuster, Inc. (a very large American publisher)
Per a later paragraph in the Complaint, Diversion Publishing published a print version of Ms. Reilly’s book and Simon & Schuster published an audio version of the book.
The Complaint is fairly self-explanatory and what PG would expect to see in a case like this.
Rule 8 of The Federal Rules of Civil Procedure describes what a complaint must contain
(a) Claim for Relief. A pleading that states a claim for relief must contain:
- (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
- (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
- (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
PG also notes that the Summons (a court notice to Defendants that they have been sued) was issued in late October, 2019. In November, 2019, two attorneys entered an appearance on behalf of all the defendants except Simon & Schuster.
In January, 2020, these two attorneys withdrew and were replaced by the S&S attorneys, so all the defendants are currently represented by the same attorneys, originally hired by S&S.
The Motion to Dismiss
The second document is a Motion to Dismiss filed by the Defendants.
A few things caught PG’s immediate attention.
- The names of three attorneys appeared on the motion, all from the same firm
- One attorney was from the California office of the firm – the defendants needed an attorney admitted to practice in California to file the response and provide ongoing information about California civil procedure, etc.
- Two attorneys are from the New York office of the firm and were permitted to participate in a California court case pro haec vice – for this case only.
- The defendants’ law firm is one of the 100 largest in the United States, with offices in New York, Anchorage, Bellevue (suburban Seattle), Los Angeles, New York, Portland, San Francisco, Seattle (in addition to the office in Bellevue) and Washington DC.
- PG concludes that Simon & Schuster is completely running the case via the attorneys they originally hired and who, thereafter, in January, 2020, undertook to represent the rest of the defendants..
- A large firm like the one representing the defendants would almost certainly have competent IP litigation attorneys in California, likely in both the LA and San Francisco offices. However, they’re using two New York attorneys, Elizabeth A. McNamara, a full partner with more than 30 years of experience, with lots of litigation, in IP and media matters, and Kathleen Farley, an associate focusing on media in addition to an LA IP associate. PG suspects a 20-minute court hearing in California would generate a significant number of billable hours sitting on an airplane for the New York lawyers.
The Motion to Dismiss is a 28-page document. PG doesn’t know what the current large-firm New York City rule-of-thumb per-page cost for a serious litigation document is, but PG suspects we’re looking at a serious five-figure fee just for drafting this document. If the court sets oral arguments on the motion, PG suspects an additional five figures will be spent by Defendants if the New York lawyers show up.
The biggest question on PG’s mind is, “Why is Simon & Schuster spending so much money defending this case?”
PG doesn’t know how many audiobooks S&S sold before the Summons arrived, but the dollars it has received and would generate if the audiobook continued to be sold would seem to be much less than the costs of defense. PG has no inside knowledge about settlement discussions, if any, but PG bets that S&S could get a release from Pamela DuMond, the author/plaintiff for less than it’s spending on its New York and California lawyers.
However, the fact that S&S offered to have its lawyers represent the rest of the defendants as well is an indication for PG that S&S wanted to control the defense of the case and is likely in the battle for the long haul.
Back to the merits of the Motion to Dismiss.
As PG mentioned much earlier, under the Federal Rules of Civil Procedure, a Plaintiff need only provide a “a short and plain statement of the claim showing that the pleader is entitled to relief;“
After reading the Complaint, PG thinks it’s pretty clear what Ms. DuMond thinks the Defendants did wrong. If the Defendants are seriously confused, the process of discovery – depositions, interrogatories, etc., etc., – will offer plenty of opportunity for Defendants to clear up any questions they may have.
The Defendants argue that the Complaint only mentions a few examples of plagiarism/copyright violations. PG thinks these are clearly identified as just some of the similarities, not all of them.
One thing the Motion to Dismiss does demonstrate is that S&S is going to attempt to make litigation expensive for the Plaintiff.
Plaintiff’s Opposition to Defendants’ Motion to Dismiss
For PG, this is where things became more interesting.
The copying and copyright infringement of the Defendants was
most likely the result of digital text spinning followed by a re-write and polish. Text
spinning — also called automatic paraphrasing — is performed by computer software
containing a built-in thesaurus.
While digital text spinning results in the alteration of the original work, it also results in nonsensical phrases, awkwardly constructed sentences, patterns, repetitions, and other anomalies — all of which exist in the Defendants’ Copy. What else could explain why the very unique word “Rome” occurs at exactly 67% of the way through the digital version of the Work and at exactly 65% of the way through the digital version of the Copy; and the very unique word “Beyoncé” occurs at exactly 95% of the way through the digital version of the Work and at exactly 95% of the way through the digital version of the Copy. Defendants will argue that the exact same word placement is a remarkable coincidence or that the word is not a form of protected expression.
As detailed below, the digital versions of the Work and the Copy show similarities
that are so striking as to preclude the possibility that Ms. DuMond and Defendant
independently arrived at the same result. The Appendix is replete with similarities that
are similarly placed in the Work and the Copy. This Court should employ a digital
analysis of the Work and the Copy, rather than the antiquated paper analysis urged by the Defendants.
But the Work and the Copy share more than striking similarities in names, stock characters, or trope – they share hundreds of copyrighted elements including written dialogue, written plot points,written character traits, and written scenes, to name a few.
|Hero||Prince Nicholas Frederick Timmel||Prince Nicholas Arthur Frederick|
|Heroine / Villainess||Heroine: Lucy “Lucille” Trabbicio||Villainess: Lucy “Lucille” Deringer|
|Good Friend||To Heroine, Lady Esmeralda||To Hero, Lady Esmerelda|
|Name of Bar||The MadDog Bar||The Horny Goat Pub|
|Penthouse Character||Owner: David Billingsley||Butler: David|
|Pie Reference||Marie Callender’s||Marie Callender’s|
|Famous References||Kardashian, Beyoncé, Brad Pitt, James Bond||Kardashian, Beyoncé, Brad Pitt, James Bond|
|Words on one page||penthouse, hand-painted, crystal, marble floor||penthouse, hand-painted, crystal, marble floors|
|Chapter 3 Passage||Pies, shop, open, chocolate, berries, counter||Pies, shops, opens, chocolate, berry, counter|
|Linda Blair Reference||“swiveled his head toward me like Linda Blair”||“Linda Blair Exorcist-head-spinning”|
Computer Analysis of Similarities of the Two Works
If you’ve made it this far, PG congratulates you and suggests you may wish to apply to law school.
The following document is the one that interested PG the most. It is attached to the Plaintiff’s Opposition to the Defendant’s Motion to Dismiss as Exhibit C and appears to be one of the products of a computer analysis of the two works – Ms. DuMond’s original book and the one she claims violates her copyrights – to determine how similar the two works are.
As with earlier embedded PDF files, if you can’t see this one in your browser, you can access it at the shared Dropbox folder – https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0Exhibit-C
31 thoughts on “Pamela DuMond v. Diversion Publishing Corporation, Farrah Reilly, Simon & Schuster, Inc., Emma Chase, LLC, Emma Chase and Simon and Schuster, Inc., Case Number: 2:2019cv08922, US District Court for the Central District of California”
I don’t want to apply to law school, but admire PG for having done so.
As someone who uses language carefully, making a big effort not to use similar words and phrases in my fiction, I looked forward to that final document.
Usually PG has links to another site – a plagiarism site – with these posts and more analysis. I hope there is a link later.
This has quite a few very obvious similarities, and some phrases that are, to me, identities. It reminds me of the Brazilian case (also romance), and the same kind of suit starting with an ‘award winning author’, who was probably informed by a fan that such-and-such a book had an awful lot of similarities with her book.
In some cases, the whole tone of a book was changed by a human plagiarist (otherwise how to get from clean romance to erotic MM romance?), which was insult added to injury for the original author. (Sorry, can’t come up with details – my brain stores these factoids but not the references.)
What is interesting, in a bad way, is S&S defending this suit with high-powered lawyers, because if it is profitable enough a field to fear a judgment, this isn’t the only case they’re worried about, IMHO. And it is REALLY hard to believe they didn’t know about it.
Thanks for a fascinating read, PG.
Sorry about the omission, A.
I can’t see the linked documents. Is it possible to get the very short summary? Who is suing who over what?
Sorry for your problem, Dave.
An author is suing another author, a romance publisher and Simon&Schuster for copyright infringement.
It appears that content spinning may be involved.
So in short, somebody loosely copied an existing novel and sold it to S&S, who now have to defend it or admit they were hoodwinked.
Maybe it would’ve been cheaper to fire the acquisitions “editor”?
Defending the thing is already eating into their profits and there’s no cheap end in sight. The case looks perfect for a contingency lawyer so making the plaintif rack up costs is only upping their exposure.
Books rarely earn enough to justify such a fight by a BPH unless there’s something bigger at stake.
Unless…maybe they sold movie rights and now face a suit on that end?b
Felix – Under US Copyright Law, the owner of the copyright can obtain actual or statutory damages (statutory damages can be helpful if proving actual damages is difficult) plus punitive damages if the court decides the infringement was willful plus attorneys fees.
Normally in civil litigation, each side bears the cost of their attorneys and the winner receives the damages they can prove they suffered. In commercial/business cases, damages are often based, at least in part, on lost profits caused by the defendant’s wrongful actions, which are not always easy to prove.
Which only adds to the mystery.
That kind of “spinning”, is it, has to be by intention, raisng the stakes. Wouldn’t tge smart move be to cut the author loose, fire whoever bought it and settle for as little as possible?
Taking it to the mattreses makes it all or nothing and exposes tbeir own coffers to deep award. I still think more is at stake than reported.
Felix, I’m afraid old Max has been gone for decades. It isn’t the 1940s any more. “Acquisition editors” have not had independent authority to acquire since the 1970s in general… and the 1960s specifically at S&S.* The acquisition process ordinarily requires at least four different people at a mid-sized-or-above commercial publisher to approve it… and at least two of them haven’t read the manuscript.
So “firing the acquisition editor” is at best 25% of the problem. To deal with the “incompetence in acquisition problem,” you’d have to fire everyone who proclaims an internal opinion at acquisition time without having read the manuscript, and that’s just a start.
* Disclosure: I used to work in-house at a segment competitor of S&S, competing for some of the same market segments (and sometimes manuscripts/authors, it’s a complex segment). I’ve also had some… litigation history… with other segments. S&S isn’t (and isn’t part of) my favorite media conglomerate. If I have a favorite media conglomerate.
I like your solution. 🙂
In most companies that kind of behavior is a firing offense. In Manhattan publishing it probably brings promotion since it adheres to their guideline of “just like xxxx but different”. So what if it really isn’t different. Who could possibly notice?
In my experience, incompetence is spread wide and runs deep at a great many traditional publishers, large and small, C.E.
D – I think it depends on how you define “loosely”.
If computer analysis finds that, with the use of computer-assisted spinning techniques, the infringer basically transformed the entire novel into something that is equivalent in most respects with word substitutions, is that wrongful conduct equivalent to copying the entire novel word-for-word or something less?
So you think they’re looking for a prececent legalizing spinning?
That might not go against the letter of the law but it sure goes against the spirit. And likely to draw an appeal with a horde of big media as friends of the court filling with the plaintif. Like LOCKOUT, this is a pretty clear derivative and a pretty poor job of spinning at that.
Some of those examples…
Felix – I didn’t express myself clearly.
If the facts described in the Plaintiff’s Complaint and Plaintiff’s response to the Defendants’ Motion to Dismiss are true, I think this is copyright infringement.
If some sort of spinning, via software or otherwise (although I think software is probably the way spinning is done on documents longer than a few pages) was used on the text of the Plaintiff’s book and the end result includes the similarities discussed in the response to the Motion to Dismiss (I would be surprised if this wasn’t just an excerpt and a full analysis would include many more similarities and statistical analyses indicating that the probabilities of two different persons randomly writing the two books were miniscule), I think this will end up as a reasonably strong copyright infringement claim.
It is conceivable that an original text could be run through so many spinning iterations that it bore no resemblance to the original text, but that would either require more corrections/rewriting than it would be worth or, regardless of the original seed text, the end result would be so different as to not infringe on the copyright.
Aside from the tawdry copying alleged in the Plaintiff’s Complaint, what interests me about the general idea of using computers to generate books really gets into the AI field. If I fed all of Jane Austen’s works into a text AI system (like the ones that write financial and sports results articles with no human intervention, only, presumably, more powerful), would the AI be able to create a book-length text that would read like a lost Jane Austen draft?
Oh, I agree it is infringement…
…and stupidity of the nth degree.
Lifting a plot, copying a character and renaming it, maybe using tbe same setting; individually tbey might pass, but all three? And expecting it to go unnoticed today? Only in big pub, apparently.
As you point out, there’s no shortage of plagiarism detection tools so trying it is folly. And *defending* it? That is what I wonder about.
About that Austen-mimic AI?
Well, it turns out that is coming real soon and will need to be dealt with soon. Sooner than soon.
The enabling tech is here right now:
Microsoft just announced they’ve built a massive supercomputer (one of tbe top five in tbe world) solely for AI work, but in a unique way: the computer will generate general-purpose models for different classes of work and the models can then “train” on specific datasets to produce the needed application. The models won’t be sold, but rather leased on AZURE (their answer to AWS). They’ve already validated the approach with their natural language AI.
“It’s good for AI that “learns from examining billions of pages of publicly available text,” Microsoft said in a statement. “This type of model can so deeply absorb the nuances of language, grammar, knowledge, concepts and context that it can excel at multiple tasks: summarizing a lengthy speech, moderating content in live gaming chats, finding relevant passages across thousands of legal files or even generating code from scouring GitHub,” Microsoft’s site for open-source programming collaboration.”
So ghosting for Austen, Heyer, or Rowling will be trivial for an application that can edit, debug, or even write software.
(One obvious application is taking old software written in “antiquity” for mainframes and porting–rewriting it for modern languages and environments.)
This is not a research product, it’s production ready, a commercial product.
The publishing world would be well advised to set some transparency rules fast or face chaos because this isn’t simple spinning. Those mimic texts will come, opening the door to truly original “echoes”. Obviously mimicking Austen or Shakespeare will be legal, but what about Tolkien, Zelazny, or Heinlein? Or somebody alive and active, like Rowling or Grisham?
Those posthumous discovery manuscripts? They may become routine. So what happens then?
I agree that AI-as-author is a trend that will continue to expand into more and more areas, Felix.
If I were a newspaper reporter who starts with wire stories to write articles or anything other than a staff writer who only does original feature articles, I would be very nervous about my career prospects at a whole lot of publications now.
Some of the print magazines I have subscribed to for a very long time (and continue to read in print because there are places and times when you just can’t [or don’t want to] use an iPad) are growing thinner and thinner with each issue.
One other trend I’ve noticed in some pubs is that not only are there fewer ad pages overall, more and more ad pages are purchased by a small portion of the total number of advertisers in the issue.
Advertisers have always exerted some real influence over the content of ad-supported media, but when a single advertiser can cut your ad revenue by 30% if it pulls out of an issue, several issues or permanently, that advertiser might as well be the owner of the magazine.
The owner can fire anyone who displeases him/her and an advertiser of that magnitude can tell the owner to fire anyone who displeases the advertiser..
It *is* going to happen.
Can’t be stopped because there are legit uses for the tech. And those uses mean money, which is why MS and others are pursuing it.
Just one of many uses: translation. Author uploads manuscript to KDP2030, checks out a list of countries to be sold in. Each country in the checklist has a “translate?” check box. If selected, it will use the AWS translation AI to create a version in the local language that preserves tone and meaning.
The consumer in thst country gets a choice of original text or (at a slightly higher price, maybe a buck) a translated version.
Or, how about a “dialog time machine”? Author supplies a manuscript, specifies period, location, and social class of characters. System verifies/adjusts dialog to use time/place/class-appropriate terminology. Author reviews, accepts changes as desired. No different than a good grammar checker.
These systems are called “AI” but they aren’t. The proper term is the older “Expert System” and their value lies in democratizing and spreading expertise. This is a good and valuable tool to have but like all tools it can be used for good or ill; it can be used to produce more and better legal content or it can be used by the lazy and incompetent to steal. One way or the other it *will* by used. Maybe by 2030, maybe later, maybe sooner, but it *will* happen.
The only choices available are how to deal with it: ignore it until too late or lay down guidelines upfront.
But like it or not it *will* happen. Corporate translation needs alone guarantees the tool will be created. And once created…
You’re welcome, A. Sorry for the problems you experienced.
Just for reference, I had the same problem, but kept reloading the tab – and eventually all the documents were visible.
Today I ran into a story about a 2012 movie, LOCKDOWN, that has found surprising success recently on Netflix.
Along tbe way, the report pointed out the movie producers lost a plagiarism lawsuit in the EU because the story, much like the case in the OP, while not a direct copy, was more than a little too reminiscent of John Carpenter’s ESCAPE FROM NEW YORK. More remake than homage.
The awards, though, were not terribly high even compared to the movie’s modest box office.
(The box was actually pretty good compared to the typical French SF movie, especially when Luc Besson is involved. Those typically take decades to break even. 😀 )
Maybe the court took pity on the producers.
The offending movie is LOCKOUT.
Awards in that sort of lawsuit in the United States tend to be larger than in any other Western country, Felix.
I think that, until 2013, contingency fees (called damages based agreements (DBAs) in blighty) were prohibited in the UK. My understanding (which could be wrong or outdated) is that DBAs haven’t taken off in the UK as much as many American contingency fee attorneys would have expected.
I also understand that there are issues arising from different practices concerning the costs of litigation. In the US, the general proposition is that each side bears its own attorneys fees, win or lose.
In the UK, at least under some circumstances, the court can require a losing party to pay some or all of the legal fees and expenses of the winning party. So a losing party who has counsel on a DBA fee arrangement not only doesn’t get paid, but is hit with a big bill for fees and costs.
In the US, the losing party in a contingency fee case doesn’t get any money, but he/she doesn’t end up with bills for the other side’s attorneys fees. (I think there may be a few exceptions in some states, but they’re pretty rare on the ground.)
The losing party’s counsel, particularly in a case that goes to trial, can end up taking the big financial hit because counsel put a lot of time into the case, time it might have been otherwise able to spend on money-making legal services, and receives nothing.
In the US, there is also an established structure of third parties who may be willing to finance/pay some of the costs if they receive some of the rewards. I don’t know that such businesses exist in the UK.
Generally speaking, in many parts of the world outside the US and UK, enforcement of laws through the court system is effectively available only to the government and rich people. Legal assistance for someone unable to pay a lot of money simply doesn’t exist.
My harangue wouldn’t be complete if I didn’t acknowledge that a great many places in the world believe the US legal system and the ways it operates are an abomination.
If you are just checking on comments and missed the amended post, I have a shared Dropbox folder (no Dropbox subscription required to access) with copies of all the litigation documents embedded in the original post.
This happens both more often and less often than it appears. It happens much more often than it makes its way to the press, or even to the courthouse. It happens much less often than certain subcommunities of writers, and certain overreaching rightsholders, think. (The delicious irony that one of those overreaching rightsholders is a literally-down-the-hall part/affiliate of S&S is too much for my low blood-caffeine levels to truly savor. And I say that based on actual litigation history.)
The problem is what “this” is. “Unconscious influence resulting in unconscious pastiche” is one thing — it’s one reason that many serious authors try not to read even marginally related works when they’re elbows deep in their own novel-writing machines (invocation of Julia’s day job from 1984 entirely intentional… especially the other implications). Intentional tagging along is another thing. So is overreaching as to elements intended only to provide marketing, and not creative, support (like this one, and the less said about certain supernatural horror fiascos in the last few years the better). And, sometimes, it’s intentional plagiarism. Nobody has enough data to say how often any of these things happens; it’s all at best post hoc rationalization.
The main barrier to understanding what’s going on, and thereby learning to avoid difficulties, is that we’re having to trust lawyers who are advocating for certain binary beneficial positions — and tend to have about as much real creativity as Wyatt Gwyon’s left big toe — who, even worse, generally haven’t read the respective works with any real literary perspicacity, and not hearing uncensored/unfiltered statements about real interests and thought processes from those actually involved. Or, worse yet, we’re stuck relying upon insurance company perspectives on all of the above because they hamstring even the lawyers.
I should also mention that the above is for the “serious” alleged copy. It doesn’t even begin to consider parody, satire, commentary, etc. If there’s one thing that the legal system cannot do effectively, it’s display a sense of humor that is at all consistent; just compare the 2Live Crew case to the Dr. Juice case! And the less said about the Second Circuit’s abject refusal to consider its 1909 Act concepts and precendents in light of the 1976 Act, accession to Berne in 1988, etc., the better.
And somewhere else, there are “fair use” and the “idea/expression dichotomy” to consider. The tl;dr version:
This stuff is hard, and anyone who tells you otherwise is stupid, lying, or has a specific agenda. Or more than one of them. And I’m not excluding otherwise-esteemed federal judges; the Hon. Learned Hand understood far less about creativity than one would glean from any of his opinions, which are still worshipped in the Second Circuit as holy writ — notwithstanding his specific agenda.
One is tempted to extract a measure of amusement at watching CBS/VIACOM attempting to ditch S&S while hoping for a billion dollar price and finding no takers in today’s environment.
To add to the entertainment, their attempt to reduce their debt by ditching S&S has attracted the attention of the deep pocket streaming video players. The latest rumor has Netflix licking their chops at the S&S-free media conglomerate.
Thanks for covering this story. I do appreciate it.
For reference — Royally Screwed won Best Audible of the Year in Romance 2016.
Passionflix obtained Royally Screwed film rights in 2017. https://www.instagram.com/p/Byc6AWqADpf/
Royally Screwed has spawned at least 4 derivative books, and foreign rights sold to Germany, France, Italy, and who knows where else.
You are very welcome, Pam.
Keep up the good fight. In addition to (hopefully) yourself, your battle is helping lots of other authors who don’t realize plagiarism/copyright infringement exists, how to discover it is happening to them and what they can do about it.
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