Scripting News for 4/9/2007

Russo & Hale threatens defamation suit 

Earlier today my lawyers received a letter from Jack Russo, my former attorney and former friend, demanding that I retract statements I made here on Scripting News.

I just had a conference with my attorneys, and read some background on libel law as it applies to bloggers, from the EFF, and California’s anti-SLAPP statute.

I’m not going to, at this time: 1. Publish their letter; 2. Link to the portions of articles they want retracted; 3. Retract anything previously published.

I am going to spend some time thinking about this, studying, and learning about libel law to find out what the options are.

I am going to solicit the opinion of readers of this site, especially those who are lawyers.

I take my integrity as a blogger seriously. I only say things I believe to be true; and if there’s any doubt, I label opinions as such. I have at times made mistakes, and when that happens, I retract and apologize. If I have done this, in the matter of Russo & Hale and its lawsuit against me, UserLand and VeriSign, I will both retract and apologize. But anything I do is going to be done openly and in consultation with the readers of Scripting News.

Today’s links 

ThinkGeek: USB Rocket Launcher.

Jackie Danicki: “I’m struck by all the fear of O’Reilly there seems to be out there.”

Rafe Needleman shows how to use RSS to connect Twitter and Jaiku.

I think I’m pretty close to done in transitioning the dynamic RSS site into a static Apache-served site. I did get the blog posts moved over after all. I reviewed the spec carefully, word for word, and all the links. Everything seems to work.

O’Reilly’s code of conduct 

We all seem to be speaking with one voice today, this code of conduct idea is not a good one. Of course the NY Times couldn’t resist putting it on page one since it confirms their assertion that the blogosphere is a bad place. Maybe next time well-intentioned people will avoid the rush to perform for the big publications.

Jeff Jarvis: “O’Reilly only set us up to be called nasty, unmannered, and thus uncivilized hooligans.”

Mike Arrington: “It feels like a big angry mob is arming itself to the teeth and looking for targets, and I need to choose whether I’m with them or against them.”

I don’t think a mob is forming this week, around this issue. The emotional rages have predictable cycles. A catalyst appears, a few days of escalating emotion, then it dies down, and people are left with a bad feeling from all the venting, and some people are really badly hurt.

The thing I’d like to see is not a code of conduct for commenters (O’Reilly’s exercise proves how pointless it is), rather a code of conduct for well-intentioned individuals when mobs are forming. How can you subtract energy from the stampede? And what can you do to help the people who are being hurt by it?

If you look at how the mob formed around Kathy Sierra, you’ll see a fair number of A-list and near-A-list bloggers who are frustrated by trolls. Some who were targets of abuse had never been targeted this way, probably had never even seen anyone targeted this way. I got a phone call from Maryam Scoble, who until the mob scene, considered me a friend; she was enraged that I wasn’t joining in condemning the people the mob was devouring (who weren’t, imho, responsible for the really nasty stuff). Her rage didn’t sway me, I let my comments stand, unedited.

Today Tim is trying to justify the stampede, and the way it went after the wrong people. There’s no justification. If you want to heal from this, and I gather from reading many of the posts that’s the undercurrent, a good way to do it is to take back the mean things you said about the people who weren’t responsible. If you don’t want to retract them publicly, do it privately.

I have been at the center of these riots, some have even been led by Tim O’Reilly. The damage continues to this day, in the form of people who think what they say about me must have an element of truth to it. In a world where people don’t always meet each other face to face to form their own opinions, this kind of tagging can be permanent and hurtful and costly.

If you want to reform the blogosphere, here’s where to start. Have a brigade of people whose job it is to put out fires when they start. To defend the people who no one wants to defend. That, imho, would be a very positive first step.

Meanwhile in other news 

This just in!

Apple got me again. I broke down and ordered an AppleTV yesterday. I saw someone did an RSS reader for it. It’s pretty bare-bones. But now I have to get my fingers in there and start adding my own hacks. I also bought an HDMI-to-HDMI cable (theirs was pretty cheap!) and an extra Mac power cable. Someone asked if I would be buying an ApplePhone, and I groaned. “I don’t want to, but I probably will,” I admitted.

Saw two movies over the weekend — House of Sand and Fog, and Stranger than Fiction. Both had chances to be great, but neither achieve anything close to it. House is a really grim movie, which is something I don’t mind in a movie, but — it had zero suspension of disbelief. So I was watching from the outside, not in the story at all, amazed at how bad things could go, but not really feeling it. Oh well.

And Stranger than Fiction was trying to be Sixth Sense-ish or John Malkovich-like, or a clone of Eternal Sunshine of the Spotless Mind, a tricky movie, with great acting. It had good acting, and great actors, but a stupid plot that oversold itself. In the end you feel the energy was sucked out of you for nothing. Just a void. You wanted to laugh (Will Ferrell is the star after all) and you wanted to get involved (Emma Thompson) and you owed them respect (Dustin Hoffman) and they had style (Queen Latifah) but the whole thing didn’t come together. Oh well. You gotta watch some mediocre movies so you really get to appreciate the great ones.

Hope Tim O’Reilly doesn’t feel this post is uncivil. :-)

What kind of kid was Tim O’Reilly? 

As I think about this code of conduct thing, I find myself wondering what kind of kid Tim O’Reilly was.

It made me think of an idea Ponzi has for Gnomedex. She’s thinking of asking my mother to give an interview on stage. I know Ponzi loves me, so I’m actually thinking of supporting the idea. (My mother also loves me, btw.)

I think the kind of kid each of us was has a lot to do with how we approach things as adults.

I was bullied a bit when I was a kid, but then I shot up and the bullies mostly left me alone and picked on smaller kids. I couldn’t help but identify with them, and I felt bad that I didn’t put myself between the bully and the kids they tormented. And I have definitely been pushed around in the blogosphere, and as I mentioned earlier, the biggest bully on my blog block is Tim O. So I find it pretty ironic that he’s the one calling for civility.

But I digress.

I wonder what Tim was like when he was a kid. What did he get in trouble for, or maybe he didn’t. I don’t want to presume to know, but I wonder.

Since he’s made our behavior such an issue, and mine in particular, for so many years, in so many ways, it seems only fair to ask some questions about him.

35 responses to this post.

  1. Have a brigade? Who should have a brigade? (isn’t that a military unit lead by a brigadier general?) Sounds like you want to suppress sectarian violence with a surge. That doesn’t sound like Dave. It sounds like the resident.

    Or did you mean a bucket brigade? (goes with putting out fires).

    Reply

  2. I mean a bucket brigade.

    Or someone who runs in front of the president and takes a bullet for him.

    I want the fires to go out quickly. I don’t like mob justice.

    Reply

  3. I don’t think you’ve ever said something I agreed with more. Wow. Flipping the issue around to be

    “rather a code of conduct for well-intentioned individuals when mobs are forming. How can you subtract energy from the stampede? And what can you do to help the people who are being hurt by it?”

    is spot on. Absolutely. I’d love to see it.

    Reply

  4. Awrighty then. Amen to the bucket brigade

    Reply

  5. Posted by Marcelo R. Lopez on April 9, 2007 at 11:44 am

    http://scobleizer.com/2007/04/09/um-dave-what-maryam-really-was-hurt-about/#comment-334256

    Not that you asked me to, Dave. Just the same I have to tell you, I may not agree with you very often, but today, you not only hit the nail on the head, you counter-sinked the screw flush. You simply could not be more on the money here.

    Like I said in my comment to the Scobleizer, YOU were ( and I presume still are ) how a REAL friend would be with a person they considered their friend.
    My best friends won’t serve up whatever my ego’s expecting to hear, they’ll remain real with me. And if I’m wrong, or if I’m letting feelings cloud my better judgement, guess what, they’ll tell me, “Hey, you’re full of it.”. Why ? Because that’s what a real friend does. They know you, and care enough about you to be the one’s who’ll look you square in the eye, and bring you back to reality.

    Just remember what I said above, when I comment DIS-agreeing with you on something in the future. Keep on truckin’, Dave.

    Reply

  6. Gee, anyone can have a bad day. However, if you are mean spirited you should be held accountable for what you say. Which we really are held accountable, by God, for the things we do and say. Vengence also belongs to God. Forgiveness is for us. It will be most beneficial to those who are hurting to just forgive, move forward, and let God take control of the situation. Believe me, things will be corrected. God is good! Afterall, you cannot make people do anything they are not willing to do, even apologize.

    Thank you,

    Ty

    Reply

  7. Freedom is a two-way street. One is free to say mean, evil and hateful things. Others are free to think them bad people. Others are also think ill of those who facilitate and/or encourage the meanness and evil. If you don’t want a reputation for being a jackass, don’t be a jackass and don’t encourage jackassery. The challenge, of course, is when otherwise smart people begin to substitute the judgment of others for their own when evaluating who is/isn’t a jackass. The best solution to that, IMHO, is for smart people to be MUCH more conservative when adopting the judgments of others as their own.

    As for Tim’s Code of Conduct creating a framework whereby independent publishers (bloggers, etc.) are marginalized, doesn’t that stand to reason? He’s a publisher. Doesn’t he stand to profit from the perpetuation of a system wherein the publishers are the gatekeepers and the “enforcers of standards”?

    Reply

  8. IANAL, so my comments are probably worthless, but I’d bet they’re keying on the parts of your postings (I won’t link to it or quote it since you didn’t) that implied (and I could be mis-interpreting your intent) that one of your explicit goals was for them to become known as the kind of lawyers that perpetrate various legal evils upon their clients. In short — to sully their reputation. While it may be well deserved, I’m sure that’s the part they consider libelous.

    Ironically, this is EXACTLY why working with attorneys is SO scary. Even if you criticize them in good faith, they can often use the law (and their knowledge of its hopelessly complex inner workings) to intimidate you (legally, in many cases) when you try to shine the light on their evil. Then, you have to get other lawyers to help you defend yourself, which, even more ironically (I think I’m using this word correctly) begins the (potential for the) cycle again.

    For what it’s worth (very little, realistically), you’ll be a hero in my book just for taking them on in the first place. That’s gutsy. Just make sure the fight doesn’t kill you (figuratively or literally). In that case, the bastards will have won.

    Reply

  9. your former lawyers are making your life hell; they do not have a leg to stand on. They would if you, intentionally said something false to intentianally hurt their business; but, since you’ve done nothing but express what is happening to you, you’re fine.

    Reply

  10. they do not have a leg to stand on

    If only that mattered.

    “Don’t worry,” my lawyer said, “they can’t arrest you for that.”

    “You don’t understand,” I told him. “I’m calling from jail.”

    Reply

  11. Posted by Dan on April 9, 2007 at 7:16 pm

    Dave, I cannot give you legal advice. Even if I could, I am not qualified — I am not an expert in defamation law, or even California law generally.

    That being said, I’ll highlight the following from the EFF Bloggers’ FAQ: “Truth is an absolute defense to a defamation claim. But keep in mind that the truth may be difficult and expensive to prove.” [Emphasis added.]

    In addition, even assuming you’re entirely in the right, keep in mind that at this stage, the deck is stacked against you. If they sue you, I would expect it to be nearly impossible to get the suit dismissed, which means discovery, interrogotories, and other pre-trial headcaches you’ll have to endure just for the privilege of defending yourself. And all the while, the outcome will be uncertain.

    I found the Anti-SLAPP page quite interesting. California has some really odd and granular statutory provisions. California Civil Code Sect.47 (in particular, paragraph (c)), linked from the Anti-SLAPP page, sounds like it could be an absolute defense, but I’m not sure after my cursory look whether it applies to your situation, and again, I am not a California lawyer.

    Reply

  12. interesting tactic …. fight a legal battle with a blog…. your strengths would be:

    - everything you say goes on the record very neatly (dated and avaliable)
    - you present yourself as public and open
    - you leverage any ‘skills’ that your readership has.

    could set an interesting precedent.

    But Dave, isn’t this very close to taking advantage of a ‘mob mentality’ that you have been arguing against? Your readers will automatically be on your side, and in their eyes the reputation of the that law firm will be affected.

    I know nothing of your case, nor do I know anything about that law firm, but I do already have a negative image of them.

    Aren’t you doing exactly what you are arguing against? … using your power to rally the troops in your favour?

    Reply

  13. By coincidence, I just watched Stranger Than Fiction, and I thought it came together nicely. In fact, I’m surprised you don’t note its curious relevance to the Sierra/O’Reilly/etc. situation: If you knew how your actions would affect someone–if you knew at a visceral, personal level–mightn’t you act differently? Could you do and say the same thing? I guess that’s true of all human experience. Would Americans sanction a war in Iraq if they had to watch their homes destroyed and their country occupied? etc. etc.

    Anyway, I liked it quite a bit.

    Reply

  14. Posted by Scott on April 9, 2007 at 10:31 pm

    Speaking of rss, you can also get your blog posts on twitter by sending a trackback whenever you publish an entry. Check out http://www.pingtwitter.com/

    Reply

  15. Dave,

    I’m a regular reader of your site, and of course enjoy it very much. Keep writing!

    About the lawsuit, I think you have made your point, i.e what sort of people Russo and company are. Just retract the statement they requested for the sake of your time and resources. This is their game It is better to back down, especially after achieving your point.

    later,
    ethioblog

    Reply

  16. Posted by mark wilson on April 10, 2007 at 5:25 am

    “The damage continues to this day, in the form of people who think what they say about me must have an element of truth to it. ”

    Where there is smoke, there is fire.

    Reply

  17. Posted by jim mason on April 10, 2007 at 7:15 am

    I am not a lawyer however, your post of 4/5/2007 is the one I believe they are not happy with. This is where you say they are fast becaming filers of frivolous charges. It is free speech I am not sure if it is protected free speech however. Get a good lawyer!

    Reply

  18. Posted by Ralph Hempel on April 10, 2007 at 7:30 am

    I’d agree with ethioblog at this point. Principles can be expensive to defend, both financially and emotionally. Even if you retract the statement, anyone searching Russo and Hale will likely find your post and think twice about hiring them.

    It makes me wonder if they actually “get” the power of your site.

    I am not a lawyer, but having required their services once or twice I’d have this to say about any agreed retraction: Make damn sure that they sign a one-time only clause, which explicitly prevents future actions for anything up to the date of the agreement.

    Cheers, and good luck

    Reply

  19. Ralph, I agree that principles are expensive to defend, but at least the emotional cost could be helped with support from my fellow bloggers, who so far have not said very much. This is a factor in my decision, because if there’s no will to protect bloggers from these kinds of actions, I’m afraid they will become more commonplace. If I were on the outside of this, if another blogger was being pursued by a lawyer, I would at least post a public expression of support. I’m more comfortable taking a risk if I know others are on my side. I’m less comfortable, and maybe not even willing, if I do it without any support from other bloggers, who will be the beneficiaries if I win, and who will pay if I lose.

    Also, should I decide to retract some of my comments, I’m not sure how to do it. If I did, it would be unprecedented — I’ve never done it before, in over 10 years of running this blog. Do I strike-through the retracted portions of the posts, delete them? When retracting, the law requires that you give the retraction as much prominence as the statement you’re retracting, but that seems to be about print publications, not web publications.

    I’m tired of being chased by these people. I really am. I want to get on with my life and work, without having lawyers involved in everything I do. It may never happen. But I’d also like to use the new tools to level the playing field, to make sure that it’s possible to find out who you can trust when you hire a lawyer. I think a lawyer is like a doctor, or a programmer, we hope we can trust their professionalism, that we pay them to make us healthy, not more sick. I don’t want make my troubles worse.

    Reply

  20. Posted by Dan Mayfield on April 10, 2007 at 8:04 am

    I have at times made mistakes, and when that happens, I retract and apologize.

    How have you retracted in the past?

    Reply

  21. Posted by Jeanne Kane on April 10, 2007 at 8:05 am

    Hi Dave,

    Having been in a legal situation that lasted over eight years, I have felt that I was hostage, and I do not use that word lightly, by the law and lawyers who hold the keys to that entire system and the filing of motions and interrogatories, etc. which hold you captive for years. There is an essay by Kafka about a person trying to ‘get into’ the law system. Most people think it’s about getting out of the legal problem, but as a lay person, dependant upon a lawyer, you are held in check by a system that you don’t understand and pulled along by the tide of ire and the flood of paper.

    Unless you are willing and able (and that means money) to fight the fight and defend yourself, basically on principle, you will be stuck in that system for years, especially if the other side is a lawyer, because they have have the knowledge and means to make your life hell with little impact on their financial situation except to spend more time. As far as a lawyers reputation, most people cannot fight back about all the unethical or negligent things their lawyers do. I also think that lawyer and reputation present an odd justoposition of words, no? Discontented clients don’t really have a voice about lawyers.

    I think the dilemma is one of “do I stand up for myself” or “do I agree quickly with my adversery so I don’t end up in the legal system”. Tough because both have merit. With libel, I think the test goes to what is true and what is false about what you write. What a mess that is to sort out, each side believing in it’s own integrity. I would love to see you stand up for yourself, but not at the cost of your health issues.

    Here’s another idea. Please consider posing the idea of mediation. Mediation that would be private and the results private. I know it’s heated at the moment, but a mediator takes the adversarial out of the equation and moves toward resolution with a negotiated settlement. Recently, on a personal note, a skilled mediator solved eight years of problems for me in two hours. It was amazing how much each side moved to have resolution. Relative to my corporate work years ago, we sought out mediators in various cities around the country to come in and mediate employee/magement/vendor diputes with 100% succces. I learned from that that most people want to get out of the legal situation and are willing to move from a hard line position and seriously negotaite. Just a thought and I wish you some peace on this Dave,
    Jeanne

    Reply

  22. Posted by Ralph Hempel on April 10, 2007 at 8:23 am

    Dave, offseting the emotional cost of your fight with support from bloggers is, to put it bluntly, not worth much. Talk is cheap. There will be a lot of “support” in the form of words that you may find comforting, but when you ask them to really go through the experience with you, I doubt there will be too many people by your side.

    And I mean in the offices, helping you calm down after discoveries, getting you mentally prepared for the next phase, taking you out for dinner, and generally being there for you, listening to your probelms as the fight gradually sucks the life out of you, making you unable to contribute your wisdom on what you are good at.

    Thinking about how to retract the statements is a good idea. Striking through the text, prominently, will probably not satisfy them. I’m honestly concerned that there’s nothing you can do that will make them happy.

    Mediation is a great idea, and I hope that they can agree to it. Maybe a quick offer to retract a specific statement with a one time clause is a good idea just to get it over with…I know it grates on you, but I have gone through a similar episode and can say that I sleep OK at night now and I’m not sure if the same could be said if I went to court.

    At the end of the day, people that know and care will know why you retracted. They won’t think less of you. I know that your cultural history encourages standing up and fighting, but it also teaches the wisdom of knowing which fight to pick.

    Cheers

    Reply

  23. Posted by jim mason on April 10, 2007 at 8:23 am

    too many bad lawyers, look at the medical field it very hard to get a bad review of doctors. very hard to review the files on a doctor!

    Reply

  24. Thanks everyone for the good advice.

    Reply

  25. One reason why many people might not be willing to voice their support of you in this instance is because it might call the lawyers’ attention to themselves. So, we might be in solidarity with you, but careful of how we demonstrate that solidarity in print when our words could be used against us too. After all, a lawyer who is willing to sue you would be very happy to depose one of us and take up our time and cost us money.

    Reply

  26. Scoble, interesting point, I imagine that even by mentioning this here you’re sticking your neck out a bit, and I thank you for that.

    I think ultimately the solution here is for so many people to stick their neck out that even the most persistent lawyer can’t depose all of them.

    And if you get deposed, can’t you blog the experience? Assuming you’re not a party to the suit. Maybe even if you’re a party to the suit.

    I think at some point we have to live up to the promise of “Naked Conversations” or stop making the promise.

    I think there are some lawyers who would like to see change, btw — and I think many of them are blogging. They’re the kind of people who can stand up, because they get their legal advice at no charge.

    And so far I’m learning so much, it’s been worth it.

    Reply

  27. Dan, when I retract and apologize on Scripting News:

    1. I run a blog post saying I made a mistake, I say what the mistake was, and what the correct statement is, and I apologize for making the mistake. I leave the original statement where it is. In that way I’m emulating the print experience.

    2. In DaveNet (which I no longer run) I’d make a similar statement in the next email that goes out, and sometimes I’d run a special piece just for the retraction and apology.

    I remember two cases where I did this at the urging of a reader who I mentioned (no threats were involved, if there had been threats I don’t think I would have accomodated them) and in both cases I came to regret doing it, because the original statement turned out to be true.

    That’s why these days I’m much more careful about this. Making people happy isn’t my job. So funny that this was an issue yesterday BEFORE I got the letter from the lawyer. But life works that way.

    Reply

  28. Posted by Jacob Levy on April 10, 2007 at 10:10 am

    Dave

    Believe me that I write this as a friend. Your lawyer is not your friend, thats what *friends* are for, not lawyers… Sheesh.

    Based on what you wrote about them, if they were just regular joes, they’d be upset and pissed. Being lawyers, they threaten to sue for defamation. I believe they’re actually doing you a great favor, in that they’re only threatening, not actually suing. They’re giving you an honorable out.

    Specifically, you wrote (I dont have the exact text in front of me) something to the effect of this firm “being in the business of suing their clients” and “filing frivolous lawsuits”. Thats debatable. What seems to be true is that they sued you. There’s a huge difference, as I’m sure you understand. One is potentially defamation or libel (again, IANAL) and the other is just a fact.

    My advice: retract in whatever way they want you to, and move on. Then stick to your guns and tell the tale of how they’re actually dealing with you, in public, as much as you’re able to. Go back to the original problem, where you seem to have (according to the drift I’m getting from you, at least) an ironclad case and they dont have a leg to stand on. In *this* one you’re on shaky ground, IMHO again, IANAL, etc etc — all disclaimers apply.

    Its a lawyer’s job to make the opponent lose their case, and they use whatever tools the law gives them. Thats just life. Yes, it sucks. The experience you’re getting now is actually a lawyer being nice to you and only threatening to sue you, instead of just suing you for every cent you’re worth. Take advantage of it while you still have 2c to your name.

    Reply

  29. The crucial distinction in American libel law concerns whether you are dealing with a “public” person. As I understand the history of this, since the landmark NY Times v Sullivan decision, public person has been pretty widely interpreted.

    If it is a public person, then truth or falsity of a statement is not at issue. What is at issue is whether the writer/publisher engaged in “actual malice” — that the publication was done with intent to harm. I think it would be hard to show actual malice on your part.

    If it isn’t a public person, then truth is the key defense. On your side, the falsity of your statements is not assumed, as it would be in England. So it is up to the plaintiff to demonstrate both the falsity and that actual damage the plaintiff suffered.

    Of course, I’m not a lawyer, etc.

    Knowing you, I think you should fight for what you think is right, but not to the point of foolishness. Lots of libel letters in my experience get sent just to frighten people.

    Reply

  30. Posted by Jacob Levy on April 10, 2007 at 11:18 am

    Hello? Noone seems to be paying attention to the fact that they’re offering Dave a way out… Dave, Take it! Don’t hesitate!

    All these people who are telling you to fight it, they’re not in your position, and IMHO you don’t need this fight, no matter what the truth and who is right. Cut and run.

    Just my $0.02 of course.

    Oh, and this is one more reason why I dont blog. It gives me too much angst (inside joke alert).

    Reply

  31. Jacob, I love you and your angst, but I don’t think I’m being offered a way out.

    And I think Lance has a lot of good points, as does Brett.

    Brett didn’t encourage me to fight, but he did encourage me to keep writing, which is the kind of advice I would give myself.

    There’s a First Amendment in this country, and it’s worth standing up for, imho.

    Reply

  32. Posted by Dan on April 10, 2007 at 1:03 pm

    @Jacob – They are not necessarily offering Dave a way out. My recollection is that California law requires that they request a retraction before they can pursue a claim for defamation.

    Reply

  33. Posted by Jacob Levy on April 10, 2007 at 1:05 pm

    @Dan, I didnt know that. If they request a retraction and Dave offers one (or they negotiate one) do they have grounds for suit?

    Reply

  34. Posted by Dan on April 10, 2007 at 2:00 pm

    @Jacob — I believe that if they ask for and receive a retraction, they are limited to seeking damages in the amount of their specific monetary losses. But I’m not sure that the requirement to seek a retraction applies or how it works even if applicable. I’m not giving legal advice, here — and I’m not qualified to give legal advice on this subject.

    In any event, the point is that a retraction wouldn’t necessarily settle anything in and of itself. — unless R&H expressly agrees that it does. It takes both sides to settle a dispute.

    Reply

  35. The usual course should anyone negotiate in this kind of circumstance is to conduct any correspondence/phone calls/etc “without prejudice”. No one sensible would retract/apologize/correct without a prior written agreement that it would be in full and final settlement of any action arising out of the alleged infringement. Otherwise any action you take to ameliorate the situation could (and will) be used against you.

    Reply

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