Media Law

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  • Press Exceptionalism and the Religion Clause

    Media Law Prof Blog
    Media Law Prof
    24 Jul 2014 | 11:06 am
    RonNell Andersen Jones, Brigham Young University School of Law, is publishing Press Definition and the Religion Analogy in the Harvard Law Review Forum. Here is the abstract. In a Harvard Law Review Forum response to Professor Sonja West's symposium article,...
  • The Reporter's Privilege: Where Does The Proposed Federal Shield Law Stand And What Impact Would It Have?

    Newsroom Law Blog
    Eric David
    7 Jul 2014 | 7:23 pm
    The right of journalists to refuse to testify regarding information or sources obtained as part of the news-gathering process, known as the reporter’s privilege, has been recognized by 49 of the 50 states and the District of Colombia. However, these existing protections are only applicable in state court. Federal law offers no statutory reporter’s privilege, leading to high-profile federal court cases in which a journalist is forced to choose between revealing confidential sources or spending time in jail for contempt of court. The most prominent recent example is the case of New…
  • Bundled & Loyalty Discounts Under the Microscope at DOJ/FTC Workshop

    Seller Beware Blog
    Neil Rosenbaum
    12 Jul 2014 | 10:06 am
    On June 24, leading antitrust economists and attorneys participated in a workshop held by the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division on conditional pricing practices, including loyalty and bundled discounts.  The agencies’ objective for the workshop was to advance the economic understanding of the potential harms and benefits of these types of discounts, and to reexamine their treatment under the antitrust laws. Antitrust plaintiffs sometimes claim that discounting by dominant sellers (i.e., sellers with market power), facilitates…
  • The Udall Amendment: When Politics Mean More Than the Constitution

    Media & Communications Policy
    Patrick Maines
    14 Jul 2014 | 6:22 am
    It came as no surprise when, in June, Tom Udall (D-N.M.) and 41 other U.S. senators, Democrats all, proposed a campaign finance amendment to the U.S. Constitution.  Ever since the Supreme Court’s Citizens United decision in 2010, Democrats and their surrogates in the media and allied advocacy groups, worried that the case would work to their political disadvantage, have been on a mission to find some way around it. So what’s the amendment all about?  S.J. Resolution 19, as it’s called, proposes to allow Congress to regulate contributions to candidates for federal office, and to extend…
  • Court: Legal challenge to campus police raid can’t proceed in secret

    Student Press Law Center
    Frank LoMonte
    19 Jul 2014 | 6:58 am
    If you want to pursue a misconduct claim against campus police, be prepared to do it in public, a federal district judge ruled last week. U.S. District Judge Matthew W. Brann of the Western District of Pennsylvania refused to entertain a “John Doe” lawsuit by six present and former Bucknell University students who say a university-approved drug […]
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    Media Law Prof Blog

  • Press Exceptionalism and the Religion Clause

    Media Law Prof
    24 Jul 2014 | 11:06 am
    RonNell Andersen Jones, Brigham Young University School of Law, is publishing Press Definition and the Religion Analogy in the Harvard Law Review Forum. Here is the abstract. In a Harvard Law Review Forum response to Professor Sonja West's symposium article,...
  • Prosecuting Politicians For Hate Speech in Finland

    Media Law Prof
    24 Jul 2014 | 7:30 am
    Heli Askola, Monash University Faculty of Law, is publishing `Taking the Bait? Lessons from a ‘Hate Speech' Prosecution, in the Canadian Journal of Law and Society (2014). Here is the abstract. This article uses one case study to explore the...
  • The ECtHR, Internet Publishers, and Reputational Injury Under the European Convention on Human Rights

    Media Law Prof
    23 Jul 2014 | 7:58 am
    Neville Cox, Trinity College (Dublin), has published Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights Under the European Convention on Human Rights at 77 Modern Law Review 619 (2014). Here is the abstract....
  • The Lack of Press Freedom In Myanmar

    Media Law Prof
    22 Jul 2014 | 8:27 am
    A New York Times opinion piece on the lack of journalistic freedom in Myanmar.
  • License This, Not That

    Media Law Prof
    22 Jul 2014 | 8:25 am
    John Howells, University of Aarhus, and Ron D. Katznelson, Bi-Level Technologies, have published The Coordination of Independently-Owned Vacuum Tube Patents in the Early Radio Alleged Patent 'Thicket'. Here is the abstract. It has been proposed that difficulties in negotiating cross-licenses...
 
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    Newsroom Law Blog

  • The Reporter's Privilege: Where Does The Proposed Federal Shield Law Stand And What Impact Would It Have?

    Eric David
    7 Jul 2014 | 7:23 pm
    The right of journalists to refuse to testify regarding information or sources obtained as part of the news-gathering process, known as the reporter’s privilege, has been recognized by 49 of the 50 states and the District of Colombia. However, these existing protections are only applicable in state court. Federal law offers no statutory reporter’s privilege, leading to high-profile federal court cases in which a journalist is forced to choose between revealing confidential sources or spending time in jail for contempt of court. The most prominent recent example is the case of New…
  • N.C. Public Records Case Opens up Access to Agency Database

    Laura Chipman
    9 May 2014 | 7:36 am
    The North Carolina Court of Appeals recently decided a landmark case for public records law in the state. In that case, the panel of three appellate judges determined that the Automated Criminal/Infraction System (“ACIS”) database is subject to public disclosure under the North Carolina Public Records Act. The North Carolina ACIS database is a database of criminal records compiled in real time maintained by the Administrative Office of the Courts (the “AOC”) for the clerks of superior court across the state. The database contains real-time criminal records entered by…
  • First in Flight, Tops in Tech, Ascendant in UAS: Drones and North Carolina

    Stephen Hartzell
    26 Mar 2014 | 12:05 pm
    The next time you go for a long hike in a national forest with no cell phone service, you might want to take a drone with you so that you can send for help when you break your leg, dehydrate, and need help. While you, as a non-commercial drone “hobbyist” or “modeler,” might—emphasis on might—not violate any state or federal law if you were to send a drone to facilitate your rescue, the same cannot be said for many other potential drone operators.  In fact, law enforcement in some states may not be able to send a drone to determine your specific…
  • Second Circuit Denies En Banc Review of Aereo Decision

    Charles Coble
    16 Jul 2013 | 11:30 am
    The U.S. Court of Appeals for the Second Circuit denied today a petition for review, en banc, of an earlier decision by a three-judge panel of the Court that had ruled in favor of Aereo and against broadcasters in a case that originated in the Southern District of New York. On April 1, 2013, the panel concluded in the case that Aereo’s service did not violate the broadcasters’ exclusive right to “publicly perform” their copyrighted television programs. Broadcasters asked the full Second Circuit Court to review that decision, but a majority of judges declined to…
  • DOJ Leak Investigations Raise First Amendment Concerns

    Tim Nelson
    6 Jun 2013 | 7:06 am
    Many journalists, constitutional lawyers, and plain old average Americans have expressed alarm at recent revelations about the Obama Administration’s “unprecedented number of leak investigations.”  Perhaps most notably, James Goodale, who represented the New York Times in the Pentagon Papers case, has argued that the President is on his way to surpassing Richard Nixon as “the worst president ever on issues of national security and press freedom.” Of primary concern appears to be the Justice Department’s investigation of Fox News reporter James…
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    Seller Beware Blog

  • Bundled & Loyalty Discounts Under the Microscope at DOJ/FTC Workshop

    Neil Rosenbaum
    12 Jul 2014 | 10:06 am
    On June 24, leading antitrust economists and attorneys participated in a workshop held by the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division on conditional pricing practices, including loyalty and bundled discounts.  The agencies’ objective for the workshop was to advance the economic understanding of the potential harms and benefits of these types of discounts, and to reexamine their treatment under the antitrust laws. Antitrust plaintiffs sometimes claim that discounting by dominant sellers (i.e., sellers with market power), facilitates…
  • FTC Requires ADT To Monitor Spokesperson Endorsements Of Its Home Monitoring Systems

    Neil Rosenbaum
    11 Jul 2014 | 6:55 am
    ADT, LLC, a home security company, must now monitor its own spokespersons’ endorsements more closely.  ADT recently settled charges by the Federal Trade Commission (FTC) that it had misrepresented endorsements by paid spokespersons as independent product reviews from safety and technology experts.  ADT used paid spokespersons to promote its ADT Pulse Home Monitoring System, a product which allows consumers to monitor their homes and control various functions, such as turning off lights or adjusting the thermostat, remotely.  These spokespersons endorsed the product on…
  • NYC’s Supersize Soda Ban Falls Flat, But Soda Industry’s Fight Not Over

    Neil Rosenbaum
    10 Jul 2014 | 6:59 am
    New York City’s last ditch effort to save its supersize “soda ban” came up empty at the end of last month when the New York Court of Appeals held that the city health board lacked the regulatory authority to limit the sales of extra-large sugary drinks in the city.  The controversial and well-publicized “soda ban,” championed by former NYC mayor Michael Bloomberg, attempted to limit to 16 ounces the size of sugary drinks sold in restaurants, delis, food carts, movie theaters, and sporting events in the city.  With strong opposition from soft drink manufacturers and…
  • L’Oréal Smoothes Out an Advertising Wrinkle in FTC Settlement

    Neil Rosenbaum
    7 Jul 2014 | 10:12 am
    It looks like the search for the fountain of youth may have to extend beyond the cosmetics counter.  Last week, the Federal Trade Commission (FTC) settled deceptive advertising charges with L’Oréal USA, Inc. over two products the company claims provide anti-aging benefits by targeting genes.  Jessica Rich, Director of the FTC’s Bureau of Consumer Protection said that L’Oréal could not support claims that its cosmetics “could turn back time” by altering genes. The FTC’s charges stem from advertisements relating to the company’s Génifique and Youth Code…
  • Skinnygirl Class Action Lacks Central Ingredient

    Neil Rosenbaum
    2 Jul 2014 | 9:18 am
    Last week, a federal district court in New Jersey ruled that purchasers of Skinnygirl Margarita, unhappy because the drink contained preservatives, cannot seek relief in a consumer fraud class action.  The court observed there is no practical way to identify people who purchased Skinnygirl Margarita and thus fit within the class, since people do not keep receipts for such purchases.  In reaching its conclusion, the court joined a growing list of courts that have ruled consumers cannot bring class action claims on behalf of all purchasers of a particular product when there are no…
 
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    Media & Communications Policy

  • The Udall Amendment: When Politics Mean More Than the Constitution

    Patrick Maines
    14 Jul 2014 | 6:22 am
    It came as no surprise when, in June, Tom Udall (D-N.M.) and 41 other U.S. senators, Democrats all, proposed a campaign finance amendment to the U.S. Constitution.  Ever since the Supreme Court’s Citizens United decision in 2010, Democrats and their surrogates in the media and allied advocacy groups, worried that the case would work to their political disadvantage, have been on a mission to find some way around it. So what’s the amendment all about?  S.J. Resolution 19, as it’s called, proposes to allow Congress to regulate contributions to candidates for federal office, and to extend…
  • Dropping George Will Is a Bad Way To Arrest That Subscriber Decline, Post-Dispatch

    Patrick Maines
    10 Jul 2014 | 11:01 am
    Even as such things are becoming commonplace, the sacking of George Will’s syndicated column by the St. Louis Post-Dispatch sets a new low in mainstream journalism’s race to the bottom. In case you’re unfamiliar with the situation, Will wrote a piece (“Colleges become the victims of progressivism”) in which he ridiculed, in the context of a new Education Department mandate, some phony math and dubious cases being cited to demonstrate that America suffers from a rape epidemic. Will’s larger point was that the DOE mandate threatens the loss of federal funding to colleges that do not…
  • The Human Element of War

    Patrick Maines
    24 Jun 2014 | 9:27 am
    If you like your politics unencumbered by doubt, you shouldn’t read Lone Survivor just as the ISIS is retaking parts of Iraq for which Americans once died.  You might have a hard time getting your moral and intellectual bearings at the contrast between the kind of selfless heroism shown by Marcus Luttrell and the Seals who fought and died in Afghanistan, with the seeming futility of the American campaign in Iraq. Among the troublesome thoughts: Why did we invade Iraq?  Was it worth the loss of so many lives on both sides in a region of the world where the historical, religious, and…
  • Free Speech and the Academy

    Patrick Maines
    19 May 2014 | 10:42 am
    So here we are as a nation, at the intersection of fear and despair, and what do we get?  A blessing on the activities of the latter-day Hitler Youth among the nations “progressive” collegians!  This, courtesy of a piece written by one Lucia Graves, as published in National Journal. Under the title “The Case for Protesting Your Commencement Speaker,” Graves manages to assemble, in the fewest number of words, more non sequiturs, straw men, and fallacies than should be permitted any professional journalist. Of course some might argue that Graves is neither professional nor a…
  • The FCC’s Net Neutrality Vote

    Patrick Maines
    16 May 2014 | 8:58 am
    Not unlike the way that people present themselves as avatars in cyberspace, policymakers in Washington present themselves behind a veneer that is usually as predictable as it is tiresome. But not always!  Once or twice a decade some public official will do something that surprises, and in doing so leaves all the other players gobsmacked and reeling. This is precisely what has happened at the FCC in recent days as the newly installed chairman, Tom Wheeler, acting in the wake of a court order, has proposed a reform of that agency’s so-called net neutrality regulations.  In a nutshell, the…
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    Student Press Law Center

  • Court: Legal challenge to campus police raid can’t proceed in secret

    Frank LoMonte
    19 Jul 2014 | 6:58 am
    If you want to pursue a misconduct claim against campus police, be prepared to do it in public, a federal district judge ruled last week. U.S. District Judge Matthew W. Brann of the Western District of Pennsylvania refused to entertain a “John Doe” lawsuit by six present and former Bucknell University students who say a university-approved drug […]
  • Supreme Court cellphone-search ruling sends a cautionary message to schools

    Frank LoMonte
    25 Jun 2014 | 12:02 pm
    In a 9-0 ruling that will reverberate in the nation’s schoolhouses, the Supreme Court decided Wednesday that police can’t automatically search the contents of a motorist’s cellphone just because they arrest him. Instead, the Court decided in Riley v. California, the search must be justified by probable cause to believe that the portions of the phone being […]
  • Georgia State couldn’t be sued for walking away from WRAS deal with GPB

    Adam Goldstein
    24 Jun 2014 | 4:19 pm
    One story we’ve been following very closely here is the controversy surrounding the fate of Georgia State University’s student-run radio station. After negotiating for years in secret, Georgia State University entered into an agreement (let’s not use the word contract, just yet) with Georgia Public Broadcasting to give the latter organization 14 hours of daytime […]
  • Appeals court upholds judge’s decision to toughen Miami student’s probation after interview with student newspaper

    Jenna Spoont
    23 Jun 2014 | 11:08 am
    In retrospect, a Miami student’s interview with a reporter — in which he described his threat to kill the president as “pretty funny” — was ill-advised, considering he’d expressed remorse to a judge only a month earlier at a probation hearing. The resulting newspaper article in The Reporter, the Miami Dade College’s student newspaper, prompted […]
  • Teachers, professors can speak more confidently after Supreme Court protects whistleblower’s rights

    Frank LoMonte
    22 Jun 2014 | 7:31 pm
    The Supreme Court has taken a step — whether it’s a giant step or a baby step is yet to be seen — toward restoring sensible First Amendment protection for teachers, professors and other government employees who blow the whistle on wrongdoing they learn about on the job. Thursday’s 9-0 ruling in Lane v. Franks protects government […]
 
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    Digital Media Law

  • How Do We Know Driverless Cars Are Safe? Google Says ‘Trust Us’

    1 Jul 2014 | 4:19 pm
    Driverless cars are on the road now – Google’s fleet has logged about 700,000 miles of autonomous driving – and the California DMV will be issuing regulations in a matter of weeks allowing self-driving cars to be sold to the public, possibly setting the regulatory pattern for the rest of the country (video). Google has predicted 2017 for first commercial availability, while Nissan and Mercedes say it will be 2020. The cars are highly complex systems whose sheer quantity of software surely exceeds the hundred million lines of source code in today’s non-autonomous vehicles. They weigh…
  • 2030 May Be The Year They’ll Take Your Driver's License Away

    18 Jun 2014 | 6:34 pm
    I was stuck in traffic yesterday, which I didn’t really mind because I have a fun little yellow convertible, and I was thinking about Uber ($17 billion! – that’s the company’s valuation, not the price of a ride) and Google’s driverless cars (development cost unknown), and I decided it was time to connect the dots: once a car learns to drive, there’s no need to own it and there’s no need for a driver. That’s because the car can come when called, take you to your destination, then go off and pick up someone else. That sounds great and I’m hardly the first to connect those…
  • New Website -- jhandel.com

    20 Apr 2014 | 11:13 am
    My new website is up at jhandel.com. It tells everything you always wanted to know (and more!) about my background and entertainment/technology law practice. Give it a look!Check out “The New Zealand Hobbit Crisis,” available on Amazon in paperback, Kindle and audiobook. Visit my website (jhandel.com), follow me on Twitter or friend me on Facebook or LinkedIn. If you work in tech, take a look at my book How to Write LOIs and Term Sheets. 
  • Aereo to Face Uphill Battle in Supreme Court Next Week, Experts Say (analysis)

    15 Apr 2014 | 9:36 am
    Next week’s Supreme Court argument will be difficult for cable-competitor Aereo, legal experts agree, as the company faces off against not just broadcasters but also the influential U.S. Solicitor General’s office and the Copyright Office. While it will be a tough fight for the company, the case is so complex and the copyright and communications statutes so intricate that one advocate said the decision could end up as lopsided as 7-1 – in either direction.The only expert willing to offer a prediction, Akin Gump’s Pratik Shah, said “I think a majority of the Court will be skeptical…
  • Joan Rivers Faces Potential Fine, Expulsion in WGA East Trial (Analysis)

    15 Jul 2013 | 11:01 am
    The penalties could be severe – but Rivers may have some unexpected defenses.With the WGA East sending Joan Rivers off to a trial board for alleged violations related to Fashion Police, the star will be facing what’s likely to be a tough tribunal – and a fine that could be as high as all the money she’s made on the hit show in the last year, plus expulsion from the union.What’s more, she may have to face her accusers without an attorney present. The WGAE rules say that a member at a trial board “may be represented by a Current member in good standing,” but there’s no provision…
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    Media Law Journal

  • I am not a bully, says Nick Smith. And if you call me one, I’ll sue you.

    Steven
    27 Jul 2014 | 8:44 pm
    Conservation Minister Nick Smith is being accused of political interference for trying to discourage NZ Fish and Game from publicly advocating for cleaner lakes and rivers. Now he’s threatening to sue those who made the claim. Now, I don’t know what happened at the meeting, and it’s clear there are different recollections of exactly what went on. But on the basis of what’s been reported, I very much doubt Nick Smith will sue. Why not? There are three main defences to a defamation action. The first is truth. Radio NZ is reporting that there are four people who were at…
  • Throwing the book at the Chief Judge II

    Steven
    9 Jul 2014 | 9:31 pm
    Former Privacy Commissioner Bruce Slane also criticises the High Court order requiring Kim Dotcom to seek documents from author David Fisher under the Privacy Act so that he can turn them over to the Crown. But he takes a different tack to mine. He argues (very persuasively, I think) that these documents are not really under the power of Dotcom, even though he can request access to them, since that access is subject to a number of conditions and processes. This is pretty similar to the point Ewan Morris makes in the comments in my previous post. The proper process here would have been for…
  • Throwing the book at the Chief Judge

    Steven
    2 Jul 2014 | 8:00 pm
    News media activities are exempt from the strictures of the Privacy Act, which generally requires that people gather information directly from those concerned, explain what they’ll do with it, keep and securely, and don’t use or disclose it for unauthorised purposes. The Privacy Act also allows those affected to access information about them, and seek to correct it if it’s wrong. The media lobbied hard for exclusion from these rules, arguing that they would make the media’s task unworkable. Parliament agreed, and journalists breathed a sigh of relief. But what does…
  • Law Commission on contempt

    Steven
    22 May 2014 | 10:22 pm
    The Law Commission has released its discussion paper on contempt of court. It covers changes to the sub judice rule (under which you can be punished for publishing something that interferes with fair trial rights), scandalising the judicary (under which you can be punished for suggesting judges are biased or corrupt), contempt in the face of the court (under which you can be punished for disobeying a judge’s instruction or throwing a dead cat at him or her), civil contempt (under which you can be punished for disobeying court orders), and rules regarding jurors (under which they can be…
  • Taurima Report

    Steven
    13 May 2014 | 3:49 pm
    As many of you know, I was on the panel for the TVNZ inquiry into Labour Party activities at TVNZ by Shane Taurima and other TVNZ staff members. Other panel members were TVNZ’s Head of Corporate and Legal Affairs Brent McAnulty and CEO of the Radio Broadcasters Association Bill Francis, and we were ably assisted by TVNZ’s Senior Counsel Helen Wild and BRG Director Chris Wikaira. The report is here.
 
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    Shear on Social Media Law

  • Social Media Evidence May Determine Who Shot Down Malaysian Plane

    18 Jul 2014 | 6:37 am
    It appears that a Malaysian passenger jet may have been mistakenly shot down in the skies above territory that is in dispute between Ukraine and Russia.  USA Today is reporting that rebels who may be backed by Russia may have arms capable of downing a passenger jet that is flying 20,000+ feet in the sky.Photos of the tragedy have appeared online and it leads me to believe that the crash site may become contaminated. In this hyper-sensitive and viral world everything posted online about this tragedy is put under a microscope.  For example, American Pie actor Jason Biggs Tweet…
  • Porky's Fan? VA Prosecutor Requests Warrant To Photo Sexting Teen's Erect Penis

    9 Jul 2014 | 2:20 pm
    An article in the Washington Post alleges that Manassas City police and Prince William County prosecutors want to take photos of a teenage suspect's erect penis as evidence to prosecute him for sexting with his girlfriend.  In order to photograph the suspect's erect penis he may be required to go to a hospital and receive an injection to create an erection.It appears that the case began when the suspect's (he is 17 years old) 15 year old girlfriend sent photos of herself to the 17 year old, who responded by sending the 15 year old girl allegedly pornographic images of himself.  The…
  • Social Media Posts Lead To Firing of TV and Radio Personalities

    7 Jul 2014 | 1:36 pm
    Last month, Travel Channel personality Adam Richman made some very disturbing posts that led to his upcoming new show being postponed indefinitely.  Talk show host Anthony Cumia of Sirius was fired from his radio show last week for a series of allegedly racists Tweets.  Both of these incidents occurred "off the air" during personal time but they had negative employment consequences.Social Media is not the panacea that some business consultants claim.  Too many self styled "social media consultants" advise their clients to pump out content on multiple platforms 24/7.  On a…
  • EPIC Files FTC Complaint over Facebook's Emotion Study

    6 Jul 2014 | 1:33 pm
    The Electronic Information Privacy Center (EPIC), a privacy advocacy group that has been performing great work for 20 years filed a complaint with the FTC alleging that Facebook's emotion study "deceived its users and violated the terms of a 2012 FTC consent decree."  The complaint was filed right before the July 4th holiday weekend.  Facebook's refusal to issue an immediate apology regarding this issue demonstrates once again that the company is tone deaf when it comes to user privacy.  I have documented Facebook's troubling position regarding digital…
  • Facebook's Unethical Experiment May Have Violated FTC Order

    30 Jun 2014 | 9:44 am
    Facebook has proven once again that it does not care about its users' privacy and that it may manipulate their users' emotional well-being for corporate profit.   In an explosive article in The Atlantic it is alleged that Facebook intentionally manipulated the news feeds of almost 700,000 users as part of an experiment about emotional contagion on social networks.  In the past, it appears Facebook related research was focused on analyzing the information users upload.  In contrast, this appears to be the first time Facebook has publicly acknowledged that it was…
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