Jimquisition: Lawsuits, Memes, and Tasty Medicine

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Meh the thing is Nyah cat at least has a leg to stand on, the keyboard cat looks nothing like "keyboard cat" if this whole thing is about the actual copying vs parody of.

But who knows what they wanted, the fact they were contacting them before the lawsuit can just mean they wanted credit for there work, or hell why not a small percent to get using the actual nyah cat without permission.

I'm pretty damn sure no one bought scribblenauts because you can spawn the cats, but with all versions of the game able to connect to the internet, I say no less then updates with their names in the credits.

Entitled:


For example, even if Fair Use would be interpreted so widely as I said above, that it would reduce IP to the specific works themselves and all "universes" would be free to use by anyone, the Big Five movie studios would have much more options than they have now: Spiderman could appear in The Avengers 2, the fucking Justice League could appear in Avengers 2, Sony could make it's own Harry Potter reboot, everyone would be making various Star Wars EU adaptations contradicting each other, and generally, they would continue to be the Big Five, and all get ridiculously rich from giving people what people want, using their big budgets.

The price of this would have to ignore that other people, not just the other four, butsmall fries and indies, are "touching their stuff" and using their own franchises as explicit inspirations.

so instead, they are grabbing with all ten at every possible controllable concept, just so they can spend millions constantly circle-suing each other for the smallest details. Not because it's necessarily more profitable, but because at this point, they just get a kick out of controlling stuff.

I've heard this line of thinking before and like the current system, also limits creativity. I believe creators should be rewarded for their creations, within reason. Under what you are talking about, an artist could create a work and have absolutely no say in the matter if someone publishes that work as their own(as in, they say they created the concept for the ip). Not only that but the artist would constantly have to prove that the original idea was theirs in job interviews when presenting their portfolio. Now, from the consumers point of view, they now have a gigantic selection of media that all have the same characters and are mostly crap making it extremely hard to find what's good. Quality would be all over the place but mostly low as their would be no overseeing element licensing the ip to quality productions.

I just want the line for ip to move into public domain to be 25 years, after that it's open season on the ip. It gives enough time for the creator to profit and make sequels while making it possible for other people to take the ip in different directions in under a lifetime.

EDIT:

muffinatorXII:
first of all the lawsuit wont really hurt WB it will hurt 5th Cell way more.

also think about the precedent this lawsuit will set if it's successful. Scribblenauts has a ton of references of all sorts of stuff, including internet memes like Nyan Cat, and keyboard cat and even fucking rickrolling, and all those references and easter eggs are fun and cool little things for us to enjoy. games finding ways to incorporate these sorts of stuff is creative, it's fun, and this kind of stuff is punishing that creativity, which is the last thing we need in an already stagnating industry.

there are plenty of reason to dislike WB, but they're not gonna get punished, 5th Cell is. they're gonna be punished for making an interesting game, THE BASTARDS!

these guys are just looking for some money

... I take it you just watched TB's content patch?

I really wish he understood the difference between a reference to a character and including the original character wholesale...

Also, putting a character someone else created into your own work is not a creative endeavor without context. Do you think Nyan Cat was included for creative reasons and including other ip like Mickey Mouse, Megaman, Mario or Sonic was avoided because it wasn't in their vision or wasn't creative enough?

I cannot stress this enough: Fuck Gearbox and fuck SEGA, I hope they lose. And especially fuck SEGA. I'm sick of people treating SEGA like the victim here. SEGA is the most guilty of all the offenders, not the victim. We, the gamers, are the victims. If SEGA had done their job as a publisher and not let Gearbox jerk them around for 6 years, or at least not released the game for any platform and just taken Gearbox to court, none of us would be out $60 for the massive pile of lies and shit that is Aliens Colonial Marines. Fuck SEGA fuck SEGA FUCK SEGA!

Anyway I was actually not aware that WB and 5th Cell were being sued over that. I didn't even know you could copyright memes. Really shows how fucked up copyrights are. And yeah, I know I didn't buy any Scribblenauts game for Keyboard Cat or Nyan Cat, nor did I use either in any of the games that I played. Two memes aren't really a selling point so yeah, they do seem greedy at first glance indeed.

But like you said, despite how fucked up it may be that you can copyright such things, they are copyrighted, and thus the copyright holders are entitled to sue and get compensation for the illegal use of their characters. And absolutely Warner Brothers would do the same thing if it was their characters showing up in some game without permission. Sorry Warner Bros, but fuck you. Hope you lose, because you deserve to lose legally and morally (even if I do have issues with being able to copyright a goddamn meme, but that's got nothing to do with the copyright infringement on hand here).

...Also fuck SEGA.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

Under US law, that's completely irrevelevant. There are plenty of copyrights and patents where the creator (or not the creator, life being what it is) files their registration after the fact, gets it accepted and then retroactively applies the copyright.

It's how Immersion got away with suing the bejesus out of Sony and Microsoft, their original 1995 patent has nothing to do with tactile feedback in game controllers, it was for the tactile reproduction of sound from TVs, it also relied on either a speaker or a stepping motor to theoretically work. Their updated 1998 patent (note, over a year after Dual Shock hit the market) suddenly included game controllers and weighted universal motors responding to non-audio inputs. They completely changed what their patent covered and the means used to achieve it, then sued the guys it now applied to.

They won the case, it was complete bullshit, but they won (Yay Patent Trolls!).

Also, in the US intellectual property is automatically the copyright of it's author (and for up to 70 years after their death) unless the owner signs it away or it's deemed to be an abandoned or 'Orphan' work where the creator (or their estate) is somehow impossible to trace or contact. Since Nyancat has it's own website and Wiki page, it can't be very well argued that Torres was impossible for Warner/5th Cell to track down and ask/pay for permission.

The only people here that I'm sad for is 5th Cell, they don't deserve to go down over this. Two wrongs don't make a right.

Moonlight Butterfly:
So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.

Well to be fair, they did try and talk the issue out first. You can't say they didn't try to have it end civilly, instead of ending in court.

If there is pettiness here, I'd say it's on both sides.

Monxeroth:
You are wrong, both objectively and factually because this video is MISINFORMATIVE.

The game WAS and ALWAYS WILL BE objectively and factually released BEFORE the trademark copyright of the Nyan Cat was even filed, this cannot be denied.

This might (and I really want to stress the MIGHT portion) be relevant in deciding damages, but when they filed for the copyright is irrelevant. Copyright is automatic so the second that person created nyan cat they had exclusive rights to it, and one would have to be delusional to think WB didn't know that. And I think this is something we need to be very clear on for those who seem to think that when the copyright was officially filed is relevant: there is no requirement to file for copyright with any official organization in order to hold the copyright. It makes it a bit simpler to proceed in litigation when you can point to it and say you have registered proof you're the copyright holder, but not having it does not vacate your rights as the creator of a copywritten work.

1.If this is succesful then companies will have even more reason to believe that we're a bunch of thieves out for money and to steal whatever we can take just because we can

If companies want to think we're a bunch of thieves because they stole and rightly got sued over it then they can go ahead and continue being morons/completely insane. We'll see how well that works out for them.

2.If this is succesful then things like scribblenauts, good games, will not be possible in the future

Bullshit. It just means they'll do the smart thing and get the rights before hand instead of stealing someone elses intellectual property. Not to mention this has absolutely zero impact on any original, generic, or fair use IP they utilize. WB losing this suit would literally have zero impact on the law as it exists today. Existing precedents would continue chugging along as they were before.

3.References, eastereggs and any kind of hint at anything will not be possible in any game

Again, bullshit. There's plenty of room for all kinds of things under various fair use exceptions such as satire. Every single point you've just made is needlessly alarmist and objectively wrong.

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?

If it was a parody it would be perfectly fine under the law. If not a parody or something that falls under another fair use exception, he'd have to pay for the rights. Something a hip hop artist is likely familiar with anyway since so many of them sample other songs and pay various rights holders anyway.

I just can't help but feel that 5 Cell will be the one to pay for this, rather than WB. Then again, if 5 Cell was approached by the original creators about this beforehand, then they probably deserve this as it was their decision to include Nyan Cat and Keyboard Cat, not WB. This really does seem more a case of 5 Cell vs creators because of this, rather than WB vs creators, and thus I'd say that people need to set aside their hatred of Warner Bros when discussing this particular case.

There are 2 main questions I have regarding the case being made here:

1) Were the characters Nyan Cat and Keyboard Cat copyrighted before their inclusion in each count of alleged infringement? Any inclusion of the characters before the copyright was filed are legally allowed, whereas any inclusion of the characters afterwards are indeed illegal.

2) What precedent will this set on copyright as a whole, and will the results do more harm than good? On one hand, we already have people like the MLP staff and game devs who actively are forbidden from taking fan suggestions or reading fanfictions of their own works because of lawsuits like these, as well as the obvious concerns over references and use of internet memes in for-profit works. On the other hand, you have a case of stopping people from just flat-out taking copyrighted works from content creators or even worse - the original content creators losing their IPs over not immediately defending their copyrights and trademarks. The whole ordeal with Bethesda and Mojang comes to mind with that, as well as the takedown of many fangames entirely out of fear of losing the IPs. All sides need to be considered in a case like this.

Monxeroth:

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?

Eh? Did Valve do something I wasn't aware of? Because Jay-Z doesn't mention a "witch" in that song, nor have I found anything from Valve concerning "99 problems but a witch aint one"

From what I read, the suing guy owns the rights to "Poptart Cat", not "Nyan Cat" which is derivative of the first (and as a derivative, protected by us law).

-Dragmire-:

I've heard this line of thinking before and like the current system, also limits creativity. I believe creators should be rewarded for their creations, within reason. Under what you are talking about, an artist could create a work and have absolutely no say in the matter if someone publishes that work as their own(as in, they say they created the concept for the ip). Not only that but the artist would constantly have to prove that the original idea was theirs in job interviews when presenting their portfolio.

I didn't say abolishing all IP, I said limiting it to the actual works themselves produced, instead of extending it to all aspects of franchises. (and obviously, plagiarism is an entirely different matter).

-Dragmire-:
Now, from the consumers point of view, they now have a gigantic selection of media that all have the same characters and are mostly crap making it extremely hard to find what's good. Quality would be all over the place but mostly low as their would be no overseeing element licensing the ip to quality productions.

Qualiy *is* already all over the place, most big budget works are in existing IPs, and every time a new work gets popular, there are instant knockoffs, "inspirations", and genre imitators, that are entirely uninspired. Except that now they have to jump around legal barriers to exactly which IPs they are allowed to use, and in what way, instead of just telling whatever people are interested in, without limits.

The problem with IP-ing entire franchises, is that while it leads people to identify "new IP" with "original content", it doesn't really protect the values of originality, but the shallowest possible elements of it. Character names, costumes, strings of data, etc. It's purpose was never to inspire true creativity. Just look at Fifty Shades of Grey. It was Twilight fanfiction, and it could be published basically by replacing the main character names with other generic names.

Meanwhile, actual high quality fan-made works produced through several work-years, that take their premise seriously AND provide plenty of originally executed narrative, couldn't possibly do the same so they must hope really hard that at least they won't get persecuted if they stay non-commercial.

I just think that art is basically a form of communication, and it's normal that artists are reacting to each other.

"The Problem of Susan", a novella from Neil Gaiman, is a thought-provoking criticism to the theological message C.S.Lewis's Narnia stories, that could only be published because the protagonist was never formally identified as Susan, but as a woman who just happened to go through the same thing as her decades ago.

Harry Potter and The Methods of Rationality, is a novel-lenght story by Eliezer Yudowski, that contains thought-provoking criticism of many theological, moral, and logical implications of Rowling's Potterverse. And it could never get published, because it's the kind of story that explicitly identifies itself as fanfiction, with canon characters and plot points apparent.

Giving artists the power to control the fate of every work that is reacting to ideas started by them, is like giving forum OPs moderator rights for the threads that they started. I believe that an artist's right to their intellectual "property", shouldn't extend to limiting what art other people are allowed to create. It does nothing but limits the number of things that can be told.

Going back to Scribblenauts, it limits the number of items that can be used. Would that truly decrease the amount of creativity?

Jimothy Sterling:
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.

Ah, that answers my initial questions. I figure the case will be argued more or less along the lines of fair use and can go either way from what we've seen. Interestingly enough, if it falls on the side of the defendants then a hefty legal bill could end up ruining the copywrite holders. One of the wonderful effects of a system that favors the group with the most money when the cost of losing is disparate.

Well, I expect some sort of settlement to wave it all away.

Jimothy Sterling:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."

It can be a thin line to walk sometimes.

OT: I was on the other side of the fence when I was under the impression that the copyrights were filed AFTER the game's release. Now that I know otherwise I agree with Jim on this one.

I definitely don't think they're being greedy. They'll make maybe just a little more than their legal fees, if that. They just need to protect their work (no matter how trivial) so that it doesn't become a widespread issue where everybody starts using those memes in their commercials, movies, etc. without compensation.

In the end, fuck Warner Brothers.

I agree with everything you've said BUT when it comes down to it, what harm is done from nyan and keyboard cat being included in the game? Are WB really making a profit from their creations because I highly doubt it. I think at the very least the creators should have been credited but anything beyond that seems frivolous to me.

Good video on a non clear cut issue. One of your best works to create awareness and shed insight.

I think this deserves a follow up, there seems to be a great deal of confusion on legal issues and terms.

I completely agree. Systems should apply equally. Blades should cut both ways.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

You don't file copyrights... They're given the instant you create something new. This post I've just made is legally copyrighted to me and if you steal it verbatim you have committed a copyright infringement.

Copyrights are the only form of intellectual property that doesn't require licensing. Patents, Trademarks (registered ones anyway), and industrial designs all must be registered with your country's IP agency, but copyright doesn't. All you need to justify a copyright claim is proof that you created the copyrighted material before the infringers did, which may be something easier said than done, but since it's pretty common knowledge that Nyan Cat was created prior to this Scribblenauts game, it can be proven in this case.

The only way that WB may be able to make a case for this if they can prove that they used it in a scenario supported by Fair Use laws.

It's funny how much a lot of people don't understand copyright law.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

Ya from the U.S. Copyright office's website

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright

So ya you're argument is utterly without merit.

synobal:

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

Ya from the U.S. Copyright office's website

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright

So ya you're argument is utterly with out merit.

I believe I've beaten you to the punch on this one, but kudos for the fancy link and actual sources :D.

So, any news on whether the inventor of Nyan Cat payed any money for the use of the poptart that makes up Nyan Cat's torso?

*looks at base issue on video* yeah not gonna touch that with a 3 meter pole.

To comment on the video.... I think you were channeling your inner Murloc at the end.

time for the small guy to be buried in litigation!

One thing I see a lot of is the fact that Nyan Cat is in several other commercial works. This is absolutely true, but it is irrelevant for two reasons. First, the creator of Nyan Cat has been approached by several companies, who then ask permission to use that likeness in their works. Money changes hands, and the creator IS credited. Neither is the case in the case against Warner Brothers. Second, this is a lawsuit against Warner Brothers. What other games and/or properties have done is not the case in question.

I also have seen a lot in this thread with people whining about "Precedent". This is completely irrelevant, ignorant, and pedantic. No precedent is ready to be set, except that maybe small content creators will be able to protect their creations from theft by large corporations. This type of suit is not new in any regard. Apple is suing Samsung over some design similarities (rectangles with rounded corners, look it up), the lawsuits against Youtube for parody works (Viacom Vs. Youtube). This suit is upheld the precedent of many, many lawsuits under the Digital Millennium Copyright Protection Act. All this said, I support the suit. Back to my first point, if other companies recognized the copyright held by the creator, and the fact that copyright is opt-out, not opt-in, it is clear that WB either did no research before using the property, or knowingly used the properties without credit, or payment.

At first I was like "they're sueing them cuz their memes are in the game? Really? How petty."

Then Jim was like, well, they did patent and copyright/trademark their material so it is an intellectual property that they /own/, and it was put in the game without their consent and with no acknowledgement or reimbursement, and then I was like "oh.... well then yeah, rock on, sue the mother fuckers."

Lord_Gremlin:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.

Oh yes, thank god for his slippery slope cry about the woes that would befall our vidja game industry should companies not be allowed to ransack and gut the internet culture wholesale and for the blatant misinformation about the suit at hand that he provides in a condescending tone.

Froggy Slayer:
The only people here that I'm sad for is 5th Cell, they don't deserve to go down over this. Two wrongs don't make a right.

Uhh, no? I don't care what the person's repertoire is, they did wrong, they refused to make it right, so they do in fact deserve to go down. Someone could be a living saint whose saved thousands of lives, but if he flat out stole someones car they would and should still be subject to legal punishment for blatant theft. And as far as the law is concerned that's what this is: inclusion of someone elses intellectual property without credit or reimbursement to the original content creator. Jim may focus on WB alone, but fuck that, WB didn't send a note down to 5th Cell saying "include these cats in the game, they're popular." WB didn't ignore the original content creators efforts to get into contact with them. 5th cell fucked up, they ignored any opportunities to set things right, and now they're being punished for their stupidity. They can either take it as a lesson learned, or they'll continue to reap what they sow and they'll fucking deserve it. Making fun games doesn't make you immune when you break the law and generally act like a dick.

Orekoya:

Lord_Gremlin:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.

Oh yes, thank god for his slippery slope cry about the woes that would befall our vidja game industry should companies not be allowed to ransack and gut the internet culture wholesale and for the blatant misinformation about the suit at hand that he provides in a condescending tone.

TB is an ignorant hypocritical knee jerk fear mongering dipshit and I legitimately think lesser of people who look to him for "guidance" as opposed to the inane lowest common denominator "entertainment" he provides. You wanna listen to the funny man make silly noises while playing a video game like a toddler, no one has a right to say boo. You wanna listen to same funny man try to talk like an adult, you're the one who is gonna suffer for thinking to take his belligerence seriously. You try to shove that ignorant outlook on others, deal with the fact people are gonna get in your face about it.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

At worse case scenario this means the topic is DOA. If that's the case i think this if the first time ever i've seen a single poster with about one line of text utterly handed someone at zero punctuation their ass.

the best case scenario and Jim's response?

"According to the creators, the legal blog that initially reported this suit got all the dates wrong."
this becomes a he said, she said pissing contest in which no one here will have the right answer.

Sorry Jim, i know you like to kick big corporate, and at times it's fun, but I think you might been a little to quick on the draw, and till eager to see Warner brothers suck than die.

Still love the new back ground music. hope you keep it.

So much Cyril Sneer... Haunting the memories of my childhood... *runs away screaming*

Monxeroth:
Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?

The correct term is "bitch." The lyrics go, "If you're having girl problems, I feel bad for you, son/I've got 99 problems but a bitch ain't one." It's bitch. Get it right.

OT: Good on them for suing WB. Nice to see them getting a taste of their own medicine, especially if they didn't give any credit whatsoever.

Good lord, as nice as it is to see a big company get nailed, I hope the Nyan Cat people don't win. Not only is their creation mostly a copyrighted food product, it only got popular by borrowing the song from a different meme. That's like me taking the dancing banana meme, speeding up "Peanut Butter Jelly Time" a little, and lazily replacing the banana with a barely animated can of Monster energy drink. With a mustache or something. If that got popular, it's only from borrowing other material under the exact same excuse of "it was on the internet." Also the meme's predecessors put in way more work to make it happen, so demanding money for it like it was my original creation would make me a gaping asshole.

It's like if the pissing Calvin sticker jackasses saw their product (redrawn) in something else and sued them claiming "Hey, that's OUR original character!" Which for all I know they actually do, but if it caught on it would make things a lot worse for actual artists.

Jimothy Sterling:
Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.

This is exactly what I'm thinking as I read through the comments, everyone keeps saying" But Scribblenauts was released in 2009, before Nyan Cat was copyrighted." When are people going to pay attention to the fact that this is about Scribblenauts Unlimited, which wasn't released until 2012?
Other than that, I think I'd be more lenient to WB on this case if:
1) These were proper references. I'd understand more if, say, when you give a keyboard to a cat it plays the keyboard cat tune or whatever. That would be an amusing reference. Just having it so the cat turns up by typing "Keyboard cat" is a bit naff.
2) I'm interested to see if the makers are right in that WB snubbed them while trying to be polite. Certainly, their reputation isn't endearing them to me.
3) I don't really see a reason WB couldn't ask for the right (or games wanting easter eggs later as well) to use the memes in the game. Sure, if you're a small company or just a single person making a fan video, I'd understand, but a big company like WB?
I'm justing waiting to see how this turns out though, seeing as I'm unsure of what'll happen afterwards. If it results in the start for some changes in Copyright law, it can't be too bad surely? But then, what do I know?

This reminds me of the Motorola patent suit vs. Microsoft. Basically Microsoft was allowed to pirate code because they're Microsoft and didn't want to pay Motorola the amount Motorola wanted.

Despite the probability of this lawsuit being dead in the water, I agree with Jim. It's about time they get a taste of their own medicine. They've been doing this to other people for waaay too long.
My favorite example: Terrordrome.


A few guys had started up a homebrew project to create a high-quality 2D fighting game featuring a roster of 12 famous horror movie characters like Jason Voorhees, Freddy Krueger, Ash Williams, Leatherface, etc. They released builds of the game completely free from the website, and gave rightful credit to all of the parties responsible for the creation of the characters, but Warner Brothers and Orion still demanded that they take down the download link, even though the developers weren't making a profit on it.
Thankfully, the game is still in progress, and they'll be ready to release the final version (with the new inclusions of Pinhead and Pumpkinhead, boosting the roster to 14) around Halloween this year. Still, it frustrates me that they'd get so pissy about a fan game.

Not saying this about Jim here, but I think a lot of escapists need to know how copyright works before they drop their two cents in in a angry comment. Jim even in the comments has hit the nail on the head, WB is taking content and not giving credit, paying royalties but making money off it, using a batman image/mask in a video/image is covered by fanart/parody and very broadly infact but what WB is doing isn't a parody it's down to the exact name and a clear image is there. And it's been in use for many games it's not like a once off thing.

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