305: Self-serving Small Print

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Ipsen:

Irridium:

Try this with any other industry, and that shit would be shot down damn near instantly.

This is a valid point, though I'm aware other software industries license in a similar manner.
Movies (in theaters) and books (paper) don't have to go through this crap.

What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.

Actually, books in paper form impose functionally equivalent limitations. Pop open most any book and you'll find an express reservation of a copyright and a prohibition that no part of the book may be copied without permission but for brief quotations in critical articles and reviews (i.e., fair uses). Generally, all owners of copyrighted materials make their copyrighted materials available to the public with this understanding. Software is no different. It's copyrighted material. The reason software is licensed to the end user is that it is a practical impossibility -- and makes no economic sense -- that the copyright owner would sell it outright -- not for $40 a pop.

My biggest problem with EULAs is that you have no choice but to accept THAT EXACT eula or go with out. If I go to mcdonalds and they say they will only sell me a cheeseburger if I agree to eat it naked, I can tell them to **** *** and go next door to burger king and get something almost identical but without the requirement.

Entertainment is the only area I set my mind on an exact product and then I can only buy that exact product from one developer. With that exact eula every time.

I guess the point I'm going for here is that games are a lot less fungible than many other products, which severly limits your options. A car is a car. It has 4 wheels and goes from A to B if you put petrol in. They don't all look the same, they aren't identical but to most people the exact choice is no real matter.

How courts deal with EULAs and other shrink wrap contracts seems to vary in places, but examples of courts holding them enforceable involve businesses vs other companies.

Remember that as a consumer who can just buy something in store, you don't necessarily even have to be able to read, so there is no way you could have known about the small print even if you could return a product in x days and get your money back.

Think about what software you install on your compe actually does, instead of worrying about what you could do with it, but maybe wouldn't be allowed to because some dubious EULA.

Plinglebob:

DonTsetsi:
And it's getting worse. How long until PCs come with agreements not to install a different OS?

While this may end up being the case with store bought PCs or specifically enclosed systems(like Netbooks or Macs), it would be close to impossible for it to happen to PCs generally because pretty much anybody with a working brain and a set of instructions can build a working PC from individual components. The only way it would is for Windows and Apple to stop selling their OS's as single items and even then, there's always Linux.

Unless they make those limitations hardwired. I don't think it will happen for desktop PCs, but it may for laptops.

Ipsen:
What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.

The intent is to get you to just click and not read it. That is the point of most legalize. To make you fall asleep and not read it. That way you don't notice the crazy crap you agreed to.

They even add in extra words and overly complex language to make it that much harder to read. It is not that they don't know most people are not Lawyers. They are counting on it.

Petromir:
I think a judge ruling on this could be a disaster. What this needs is a staute, decided by elected governments, in consult with the industry and consumers.

Define the basics whats reasonable under a EULA, produce an ombudsman to regulate things, and provide a court of arbitration before things go to full on courts. Define what rights each side has, and in turn what responsibilities.

Make it clearer on boxes that it is a license you are buying, not the item.

Well like it or not. In the USA at least courts often act because the Legislature has failed to. In some cases Judges will make rulings very uncomfortable on purpose to get Congress to act.

It is how the system of government self corrects when Congress gets distracted with say subsidies for example. It prompts Congress to do their job.

Ipsen:

Irridium:

Try this with any other industry, and that shit would be shot down damn near instantly.

This is a valid point, though I'm aware other software industries license in a similar manner.
Movies (in theaters) and books (paper) don't have to go through this crap.

What I've never understood is why EULA's are 99% of the time in legalese, for a large majority of consumers who not only don't care, but may not be familiar enough with the presentation to make relevant sense out of it all.

It fleshes out the defense of your product, sure, but the majority of games, let alone licensed software in general, don't have a large customer base of lawyers, I'm pretty sure.

Publishers (yes, laying blame on you) at least give a concise version for a layman's comprehension, so we as consumers at least have an idea when we do something that industries may not like.

The issue vaguely reminds me of credit cards and the various fiascos therein. EULA's existence is understandable to an extent, but the wording makes it appear to be more of a "if you sue us" type document than anything else. There is no way around them though (discounting piracy), change will have to be implemented but it will be slow in coming.

Great article. Gamers just need the right person, with the right amount of money and time to finally prove these EULA's are as fair and legal as a selling a toilet paper parachute to someone about to jump out of a plane.

This is the best argument to boycot games(-companies) that use STEAM.

(or Sony for that matter. Now i wonder if the removal of OtherOS has something to do with the recent hacks. Maybe some pissed off linux-Nerds?)

I really wish companies would just sell their software. Agreeing to all that licensing-shit means you can get shafted for no reason what so ever!

"go play game X while company Y shoves it's Z in your A-hole"

Sjakie:
(or Sony for that matter. Now i wonder if the removal of OtherOS has something to do with the recent hacks. Maybe some pissed off linux-Nerds?)

Nothing proven but some people suspect that it's hackers who are angry at the result of the GeoHot lawsuit which was over the OtherOS issue (that lawsuit also brought this very topic to light with how public and abusive Sony was being with it's EULA, turning passive acceptance from many people into disdain for the practice).

CM156:

That being said, I do wish they could condense it down to "Don't pirate stuff", or in the case of online games "Don't sue us if our servers go down"

Yeah, I do read EULA's, and like 80% of them is stuff like this. Don't use this to break laws. Don't pretend to own the copyright for this, and don't sell it like you did. Don't sue us for stuff that is clearly not our fault. Don't sue us if we can't provide you an online service because your internet is down/our servers are overload/we went bankrupt.

It's the other 20% that kills.

I'm quite certain that EULA's will never stand in court, though. It would make no sense that they did. A legal decision will likely be on the side of common sense, so it would uphold the EULA in the cases I mentioned in which the costumer is the one being a whiny bitch, but would strike it down if it was the company who was acting all uppity.

Well, at least after the Geohot case ends we'll decisively see OH WAIT

JDKJ:

Actually, books in paper form impose functionally equivalent limitations. Pop open most any book and you'll find an express reservation of a copyright and a prohibition that no part of the book may be copied without permission but for brief quotations in critical articles and reviews (i.e., fair uses). Generally, all owners of copyrighted materials make their copyrighted materials available to the public with this understanding. Software is no different. It's copyrighted material. The reason software is licensed to the end user is that it is a practical impossibility -- and makes no economic sense -- that the copyright owner would sell it outright -- not for $40 a pop.

Huh. Believable. I'll count it my F(ail).

Anyone see that Human Centipad episode of South Park, that's what this article got me thinking of, and for the first time ever i did read more into the agreement given with the last Itunes update. Its some scary stuff when you think about it, were hit with so many EULA's to agree to in the gaming scene, it can become a major hassle to read through all of it.

Just remember, the next EULA you agree to without reading may include a section where the company has the right to abduct and experiment on you. ;) (i kid of course)

Ipsen:

JDKJ:

Actually, books in paper form impose functionally equivalent limitations. Pop open most any book and you'll find an express reservation of a copyright and a prohibition that no part of the book may be copied without permission but for brief quotations in critical articles and reviews (i.e., fair uses). Generally, all owners of copyrighted materials make their copyrighted materials available to the public with this understanding. Software is no different. It's copyrighted material. The reason software is licensed to the end user is that it is a practical impossibility -- and makes no economic sense -- that the copyright owner would sell it outright -- not for $40 a pop.

Huh. Believable. I'll count it my F(ail).

It's not exactly the same. For the most part, you're able to open and flip through a book before you purchase it, so if such an agreement is stated there, you have a chance to read it before purchasing the book. This is rarely if ever the case with software EULAs, in these cases the EULA pops up to be read during the installation process, long after the purchase has been made.

I really have no problems with the basic idea of a EULA, movies have it in the copyright reserved screen, cd's have it in the books, it has to be there to legally state, yep you bought a copy, thanks, just know you don't own the content, just a copy of it for personal use don't sell the content as your own and what not. That's cool with me, its pretty much implied with anything.

But going further than that with strange requirements and restrictions in it that inhibit or control lawful/personal use of the product is insanity, especially when it is some hidden shrink-wrap/post-purchase license, like you've paid for the console, software, & subscription to online network, NOW we reserve the right to make you use or not use certain services or we lock you out of the network reducing the functionality of the device you purchased, hah.

It is insanity, but sadly the culture shift is trending towards corporate empowerment and I don't see any end to this sort of action, at least not through legal/political avenues and while some economic avenues could work; at the rate that all manners of devices are gaining connectivity, I think this is soon to become fairly universal and you'd be left boycotting everything.

If you have a problem with these sorts of "contracts" there really are two options that I see (probably others, but that's for others to point out):
1. Become a ludite and get stuck using outdated tech/soft.
2. Agree to the BS documents, and do whatever you want to do with the product while laughing at the document. Should the VERY unlikely event occur where that corp try to bring you to court over making a hackintosh or something, make it as public as possible you'll lose anyways may as well make them look bad. Unless you are spreading around a root key you have a better chance of winning the lotto than winding up in court for ignoring the bs restrictions.

smv1172:
If you have a problem with these sorts of "contracts" there really are two options that I see (probably others, but that's for others to point out):
1. Become a ludite and get stuck using outdated tech/soft.
2. Agree to the BS documents, and do whatever you want to do with the product while laughing at the document. Should the VERY unlikely event occur where that corp try to bring you to court over making a hackintosh or something, make it as public as possible you'll lose anyways may as well make them look bad. Unless you are spreading around a root key you have a better chance of winning the lotto than winding up in court for ignoring the bs restrictions.

Well there is the 3rd option of breaking the "law" and a lot of people do it and just think of how sad it is that so much bad decisions have been made that people are desensitized to those kind of crimes. I mean, who, with any basic sense of moral, wouldn't agree that you have to be "paid" for your work, yet still people do it.
With so many things being really unfair (the legal issues might be borderline or not yet determined, but still I think everyone will agree that, unfortunately, that is far from what is fair), companies themselves are really encouraging opposition.
Companies might have the upper hand for now, but how long is it before every company exepriences an "attack", which are mainly a product of how they treat their costumers. And there are plenty of them that could go on a chopping board, from Valve/Steam, Apple etc.

The whole software/games business has become too big for itself, not only has there been a more than exponential growth in the cost of making games and in the prices that then have to be modified, but the actual struggle to survive in the market produced so much of what is basically greed. Instead of better managment and trying to figure out how to better organise the whole industry, companies take rights from the costumers...just sad really.

anian:

smv1172:
If you have a problem with these sorts of "contracts" there really are two options that I see (probably others, but that's for others to point out):
1. Become a ludite and get stuck using outdated tech/soft.
2. Agree to the BS documents, and do whatever you want to do with the product while laughing at the document. Should the VERY unlikely event occur where that corp try to bring you to court over making a hackintosh or something, make it as public as possible you'll lose anyways may as well make them look bad. Unless you are spreading around a root key you have a better chance of winning the lotto than winding up in court for ignoring the bs restrictions.

Well there is the 3rd option of breaking the "law" and a lot of people do it and just think of how sad it is that so much bad decisions have been made that people are desensitized to those kind of crimes. I mean, who, with any basic sense of moral, wouldn't agree that you have to be "paid" for your work, yet still people do it.
With so many things being really unfair (the legal issues might be borderline or not yet determined, but still I think everyone will agree that, unfortunately, that is far from what is fair), companies themselves are really encouraging opposition.
Companies might have the upper hand for now, but how long is it before every company exepriences an "attack", which are mainly a product of how they treat their costumers. And there are plenty of them that could go on a chopping board, from Valve/Steam, Apple etc.

The whole software/games business has become too big for itself, not only has there been a more than exponential growth in the cost of making games and in the prices that then have to be modified, but the actual struggle to survive in the market produced so much of what is basically greed. Instead of better managment and trying to figure out how to better organise the whole industry, companies take rights from the costumers...just sad really.

That is a really good point that the software industry is a bit bloated, competitive, and people need to get paid, and I could see my 2nd option being a little unclear. Just wanted to state that I am not advocating piracy. I am saying buy the software then doing whatever you want with it. Like if you want to run macOS on a pc damn the eula that says you can't, or if you want to crack and mod Office or something to add functionality, etc. But as a coder, please buy the soft unless it is given out free.

I have an EULA on my computer Steam and other Programs agree to when I install them. Since they are on my system they must agree to my terms.

I'm always curious y the EULA have a "I Do not agree to the terms" options. Will a retailer give you a full money refund should you choose that option after you have opened it? It isn't like you have to agree to this contract prior to purchase its always after the fact. And if you buy it and not agree, you just paid whatever sum of money for large paper weight.

kind of asinine to have the EULA be presented after the product is purchased and not before.

Lord_Jaroh:

Petromir:
I think a judge ruling on this could be a disastor. What this needs is staute, decided by elected goverments, in consult with the industry and consuemers.

Define the basics whats reasonable under a EULA, produce an ombuudsman to regulate things, and provide a court of arbritration before things go to full on courts. Define what rights each side has, and in turn what responisibilities.

Make it clearer on boxes that it is a license you are buying, not the item.

I think making it clearer as to what the license allows would also help. Having consumers be trampled upon by supposed rights they are not allowed is silly. I believe it should be a physical object rather than a license myself, especially allowing me to return the damned thing if it does not work, or is a terrible product, first and foremost.

Had Sony come out at the beginning and said they were removing the OtherOS feature and would refund those who did not want the update, then this joke would of ended a few months after it began.

I firmly believe that if I spend $300~$450 on a console, it should be mine and I should be allowed to do whatever I want with it, just like my laptop I am writing this on.

If Microsoft were to tell me that they are removing the Windows Media Player because it allows for people to burn CD's thus allowing for piracy.... well, I wouldn't really mind, I hate WMP and its one of the first things I tend to replace.

But if they were to remove something I specifically bought the laptop for, say web browsing, then yes, that pretty much made my computer a useless $1,2000 paper weight, granted, a paperweight that can still play games.

I don't think ToS'es and EULA's as they are now should be binding, since there is nothing stopping users from just hitting "Accept" or scrolling to the bottom and hitting "Accept", a way to improve it though, and to make sure users know what they are agreeing to, would be to have a short questionnaire who's answers could be found in the EULA, though that would get annoying very fast, it would make users actually read through both forms.

While there will always be a back and forth argument over how software and hardware developers treat their users through the EULA, we cant do much against it besides actually reading and understanding what we are agreeing to.

Anytime we buy a new console we buy into the fact that it will stop being supported some day.

While I may not like some of what the EULA's set up for the contract relationship, I am for Sony on this. If you click the "I agree" or "I read" button after the EULA and continue on, you have explicitly accepted the contract. IF you don't like what it says, do not sign it.

I just bought a vehicle and had to sign several contract papers for the loan and such, and I can't claim later if the company stops making parts for the car that I would not have bought it had I known they wouldn't support the vehicle in the future. While nothing is being removed from the vehicle, it still works along a parallel.

PxDn Ninja:
Anytime we buy a new console we buy into the fact that it will stop being supported some day.

While I may not like some of what the EULA's set up for the contract relationship, I am for Sony on this. If you click the "I agree" or "I read" button after the EULA and continue on, you have explicitly accepted the contract. IF you don't like what it says, do not sign it.

I just bought a vehicle and had to sign several contract papers for the loan and such, and I can't claim later if the company stops making parts for the car that I would not have bought it had I known they wouldn't support the vehicle in the future. While nothing is being removed from the vehicle, it still works along a parallel.

I see your point, but would you have agreed if there had been a clause in the contract stating that the manufacturers can come by at any time and take out say, the radio or the power steering and you have to let them. Oh, and you can't replace them, either.

Now imagine if you didn't get that contract until after you had already paid for the car in full, and couldn't get a refund.

That being said, I understand the idea of not being able to sue if support is cut out when it comes to games like Demon's Souls or Portal 2. Servers can't run forever.

I think I now understand more of what Yahtzee means when he says full priced games should have a solid single player, but I'm getting off topic now.

Jhereg42:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.

This. I hope this point comes up in whatever court cases deal with EULAs. If piracy is theft, EULAs are extortion.

Well, since the Supreme Court has ruled that EULAs can in fact strip you of the right to class-action lawsuits and force you into arbitration (with third-party companies that tend to find in favor of the corporation 95% of the time), the only advice I can give now is this:

Do not buy any consumer goods, at all, ever, unless you can afford a lawyer to go over all the fine print.

Because, seriously, every time someone says "Well, just read the EULA", I respond: Have you? Sixteen pages' worth of small-print lawyertalk designed to confuse anyone with less than an MBA in law? We should get a 5% reduction in a product's price everytime their EULAs use words like "henceforth" and "heretofore".

JDKJ:
You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

--8<--snippage of case law--8<--

The main issue is when the consumer doesn't agree to the EULA but is prevented from getting a refund/exchange/recompense for the cash outlayed for the licenced product. That's something that hasn't been put to the test in a case similar enough to game software to be of use, at least as far as I know of.

Edit: Heh, and I got the 'forum rules update' agreement screen when posting this. Hahaha.

For those people who are against this, SONY being able to decide what you are allowed to do with their product and with their services. If you don't like, don't use it. It is not like someone is forcing you to use it - buy an XBOX and stop whining.

This is why you should read papers like these, even if they might not contain anything and are long. You agreed to obey by them, so shut up. Don't like it? - Then vote with your money, don't use their products.

Jhereg42:
Here is another problem with the present system.

You buy a PC game for $50 at your local retailer. Go home, start to load it. Read the EULA, and just cannot agree to the draconian idea that you don't own your disks that you clearly now own. So, since you cannot accept the EULA you responsibly box it back up and try to return it. Only, retailers are very nasty about returning opened PC games. They simply assume you pirated it and want to return it now for a full refund. (a lot of companies will not accept a PC game with the wrap opened.) Correct me if I am wrong, but I believe that the same is true with digital distribution like Steam.

Whoops, now you are up the creek. You paid for your product, do not accept their contract that is only available for examination AFTER you've paid for it, and you cannot return it.

I think that is why EULAs are going to be shot down by courts in the end. They force the user to agree to terms after the license has been purchased, not before. There is a understanding on the part of the buyer that they are purchasing a finished product at retail, not a license to operate another person's product.

This is the fundamental problem with EULAs and they way they are used regarding the gaming software industry.

As far as actual contract law goes EULAs are quite sound, even 'shrink-wrapped' ones, it's their implementation that is broken. If you set up a situation where there is no way to avoid 'accepting' the EULA (such as keeping a product as tacit 'acceptance' when there's no way to return it) then there's every chance of the contract being voided.

Also... piracy as an excuse to no exchange/refund? What is this, the 90s? Easier to just torrent a game than buy one, crack it then drag your arse back to the shop where you bought the game.

Actually, the main reason retailers don't refund/exchange PC games is DRM using one shot serial numbers... because Publishers can't seem to just wipe a used serial from their online authentication servers so the serial is valid again... oh no, apparently that would require thought and would mean the same title can be bought twice while they only get the money for it once which would make it almost as bad as the used games market.

RhombusHatesYou:

JDKJ:
You may think that "EULAs are not legal documents," but the courts of a number of different jurisdiction in the United States, as represented by the sampling of opinions listed immediately below, have considered the issue and concluded that EULAs are binding and enforcable.

--8<--snippage of case law--8<--

The main issue is when the consumer doesn't agree to the EULA but is prevented from getting a refund/exchange/recompense for the cash outlayed for the licenced product. That's something that hasn't been put to the test in a case similar enough to game software to be of use, at least as far as I know of.

Edit: Heh, and I got the 'forum rules update' agreement screen when posting this. Hahaha.

Fine. Then make that very narrow distinction clear and you're on firm ground. But say that, as a categorical matter, no EULA is binding legal document when there's a slew of court opinions that say they absolutely are, is to spew pure horseshit.

SinisterGehe:
For those people who are against this, SONY being able to decide what you are allowed to do with their product and with their services. If you don't like, don't use it. It is not like someone is forcing you to use it - buy an XBOX and stop whining.

All console manufacturers have a "this is actually ours and we can fuck it up if we want" clause in their EULAs. It's usually a few clauses below the 'if you fill your console's case with kittens, we're not fixing the damned thing when it breaks' clause.

JDKJ:
Fine. Then make that very narrow distinction clear and you're on firm ground. But say that, as a categorical matter, no EULA is binding legal document when there's a slew of court opinions that say they absolutely are, is to spew pure horseshit.

I wasn't saying EULAs in and of themselves are not legally binding. They're solid contract law (shrink-wrapped EULAs aren't so solid in Oz but that's neither here nor there for this) but the way the game software companies implement them presents a scenario where they could be voided because the publishers and whoever else have established a system that, going by your cited cases, leaves the consumer with no way to not 'accept' the EULA and with no way to redress.

RhombusHatesYou:

JDKJ:
Fine. Then make that very narrow distinction clear and you're on firm ground. But say that, as a categorical matter, no EULA is binding legal document when there's a slew of court opinions that say they absolutely are, is to spew pure horseshit.

I wasn't saying EULAs in and of themselves are not legally binding. They're solid contract law (shrink-wrapped EULAs aren't so solid in Oz but that's neither here nor there for this) but the way the game software companies implement them presents a scenario where they could be voided because the publishers and whoever else have established a system that, going by your cited cases, leaves the consumer with no way to not 'accept' the EULA and with no way to redress.

I didn't mean you. I meant the horseshit-spewer to which I originally responded. That's what they said.

If I may agree to the EULA for Devils Advocate for just a moment here, I don't think these EULA's are implemented to screw over the consumer. Let's face it, there are people in this world who simply look at things in terms of can and can't exploit. Usually these forms are in place as a minor effort to have legal grounds to defend themselves from cheats hackers and pirates. If they can't rely on them then they are just going to find more annoying and difficult ways to protect themselves so that the other side doesn't drive them into a huge financial hole.

Yes it sucks when these things affect those of us not trying to scam the system, but if companies abuse EULA's I think the best way to fight it with your wallet and future purchases. They know that the power is ultimately in our hands.

All this attacking the big guy just because theyre big is getting tiring. If we were in their shoes every one of us would be doing the same thing. Otherwise we wouldn't be wearing those shoes.

Edit: I also find it hilariously ironic that to post this I had to agree to updated forum conduct rules.

JDKJ:
I didn't mean you. I meant the horseshit-spewer to which I originally responded. That's what they said.

Well, glad to have that all settled then.

We really need a gaming consumer advocacy group. Something like the EFF that works exclusively on making sure the EULA is fair for both sides.

It's really like any other legal contract, and the fact that these companies have been bullying users into signing it without representation or even full explanation is absurd.

Douglas Heaven:
Self-serving Small Print

Odds are pretty good you don't bother to read every EULA you agree to, and odds are even better that someone is counting on that fact.

Read Full Article

Welcome to the Escapist. This is an excellent first article, and if you continue to put out excellent articles like this, we will be glad to have you here. This issue has seriously bothered me. People seem to act like fraud and even outright theft from consumers by developers/publishers is perfectly acceptable. There is something deeply wrong with this situation.

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