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Source link: http://archive.mises.org/12521/property-rights-and-the-paparazzi/

Property Rights and the Paparazzi

April 20, 2010 by

“…someone’s ‘reputation’ is not and cannot be ‘owned’ by him, since it is purely a function of the subjective feelings and attitudes held by other people. But since no one can ever truly ‘own’ the mind and attitude of another, this means that no one can literally have a property right in his ‘reputation.’ A person’s reputation fluctuates all the time, in accordance with the attitudes and opinions of the rest of the population.” (For a New Liberty, chapter 6, page 117)

We all love the entertaining photos that rest within the grocery checkout lanes. The images of overweight/underweight Hollywood stars covering their faces as a myriad of pesky photojournalists shout obscenities and snap pictures. We love these images, but sometimes we sympathize for the stars.

“Just leave him/her alone!” we bellow.

Yet, what is it that prevents them from avoiding such harassment? Or, better yet, is it harassment?

As we have alluded to above, one cannot own his image or reputation, nor can he own an actual image, a photograph, of himself. Like the mental construction of memory which is a product of one’s eyes and mind, a picture is a product of one’s camera. The question of ownership begins first with the individual, then proceeds to his labor, then the equipment via exchange, and finally to the property from which that equipment is employed. If you don’t want to be photographed, then you must remain where you are veiled from the public. You do not own the rights of another’s’ flashing camera the same way you don’t own the right to another’s gazing eyes. You may only own, or rent, the space from which they snap their pictures.

Therefore, what celebrities really need is private roads and private sidewalks from which they may oust those that take pictures. They want more privatization so that they may enjoy their privacy. If not, then their privacy is not something they truly desire.

{ 32 comments }

Curt Doolittle April 20, 2010 at 9:43 pm

This is a mischaracterization of the problem of paparazzi. It is a rare celebrity that does not desire publicity. The problem for most celebrities is to get any and all publicity possible.

Instead, the property violation occurs when the paparazzi interfere with a person’s actions and movement, obstruct their conversations and social meetings, invade their homes, or attempt to create news by antagonizing the celebrity. These are all violations of the persons freedom, and paparazzi are granted special dispensation by the state to antagonize celebrities. The violation then, is that the celebrity is prevented from protecting his freedom and property by the intrusive state that has granted the rights of theft to paparazzi.

You further mischaracterize the nature of reputation. Reputation exist in minds subject to constantly updated information — in other words, it exists in a market that experiences fluctuations in price. As Rothbard says, a reputation’s daily market PRICE is not controllable. However, it is still a person’s asset, regardless of price, because people ACT as if it is an asset, and that asset has material value to individuals, which we can determine by surveying the ACTIONS that people take, businesses take, regarding their reputations – PR firms are expensive (Mine is too). Hence, profiting by manufacturing damage to a person’s reputation is simply an act of theft. And therefore, if paparazzi are creating news by interfering with the celebrity, then they are engaging in theft. If they are capturing celebrity actions without interfering, then they are simply communicating an observation.

Defining property according to your choosing is simply an attempt at fraud. Defining property according to the analysis of human actions is rational, scientific, praxeological, and consequently Misesian. Defining property according by any other arbitrary or constructed means is simply fraud.

I do not mean to discount the other principles that Rothbard added to our toolkit – tools which I am using above. Nor to disagree with the value of privatizing what is currently public property. However, this rather foolish constructivist approach to private property is the reason we are frequently disavowed, and perpetuating this kind of error does us no good, not the least of which is because it is entirely FALSE.

Constructivist views of private property are an attempted act of fraud. Property is not the name of material objects. Property is a claim on an opportunity to make use of any object, material or abstract, upon which men can act. Either that, or libertarianism is not a science of Human Action, but a silly metaphysical cult no better than the patent absurdity proposed by Marx, and a vast scheme of fraud and theft that we wish to foist upon a skeptical civilization which will have none of it.

Instead, the anarchic research program has been terribly valuable in debunking the myth of good government and directing us to focus on the coordination and calculation problems rather than attempting to improve the political institutions – invalidating more than a century of self-congratualtory work on the merits of democracy. But conservatism lacks an argument sufficient to combat the constant evolution of socialist ideas. Libertarians are by and large the though leadership of the conservative movement that resists socialism. Libertarianism contains the necessary elements to provide that argument. It would be far better that we should focus on providing it, rather than perpetuate nonsense which undermines our ability to do so.

Seattle April 20, 2010 at 10:14 pm

You further mischaracterize the nature of reputation. Reputation exist in minds subject to constantly updated information — in other words, it exists in a market that experiences fluctuations in price. As Rothbard says, a reputation’s daily market PRICE is not controllable. However, it is still a person’s asset, regardless of price, because people ACT as if it is an asset, and that asset has material value to individuals, which we can determine by surveying the ACTIONS that people take, businesses take, regarding their reputations – PR firms are expensive (Mine is too). Hence, profiting by manufacturing damage to a person’s reputation is simply an act of theft.

So, let me get this straight. I invent a method of mass-producing food using stem cells, which allows me to be able to sell once-expensive meats for pennies a pound, and I sell it at marginally above this price. According to you, I am committing an act of theft by doing this, because the value of the old meat-producing industries has just dropped to zero directly because of my entry in the market. Is this correct?

Curt Doolittle April 21, 2010 at 10:11 am

I know you are reaching for allegories, but please explain to me the difference and similarity between the market activity of speculating on production and the competition resulting therein, and the interpersonal activity of hounding someone so that you can get a picture of them in distress while the victim is prohibited from preventing your interference in his actions because the paparazzi is given special rights by the state.

I’ll help if you need it. :)

Peter Surda April 21, 2010 at 2:35 am

However, it is still a person’s asset, regardless of price, because people ACT as if it is an asset, and that asset has material value to individuals, which we can determine by surveying the ACTIONS that people take, businesses take, regarding their reputation

But this is valid with regard to anything, not only reputation. This does not help define property, it confuses. Any change has a negative effect on someone. Does that mean that any action whatsoever is a property right violation?

This is one of the reasons why I reject the notion of immaterial trespass. Instead, I humbly propose that only those immaterial negative effects that are defined in contracts are to be prosecuted (i.e. contract violations).

Peter Surda April 21, 2010 at 2:41 am

Furthermore…

Property is a claim on an opportunity to make use of any object, material or abstract, upon which men can act.

It is not necessary to own immaterial goods to make use of them, therefore from the existence of an opportunity you cannot imply ownership. As I said before, with immaterial goods, anything causally related is “making use of”.

Curt Doolittle April 21, 2010 at 11:51 am

We can create representations of abstracts, can’t we? We’ve created plenty of them.

I can stake a claim on land. I can form an abstract entity called a joint stock corporation, and then sell shares. I can marry someone and get a marriage certificate. I can get a receipt for a deposit. I can sign a contract. I can buy an option. I can wager a bet.

Why can’t I stake a claim on a formulae? Or a brand or trademark? Or a design or patent? Simply because they require uniqueness against a broader pool of people, because are treated as first-come first-serve exclusivity, rather than an auction model, and because the market cannot expand to provide better and more accurate service than does the state.

The these registries try to prevent copying and bypassing investment (theft) rather than parallel innovation, which is in the market interest.

Under the Hoppian property scheme land registries are maintained and protected by insurance companies and private firms instead of the state. But to limit the scope of property is to limit the competitive ability of groups to compete against other groups.

The problem is that the government owns the registry and terms by which abstracts are registered, while denying the purpose for which we enact the registry: to encourage capital investment so that goods and services can be rapidly brought to market at lower risk rather than through direct subsidy.

But in turn these devices can be used to prevent products and services from entering the market, and in particular, products and services that do not require capitalization, and that they too often endure long enough to create artificial monopolies. Book protections that persist beyond one generation of offspring of the author.

Banks regulate their own ‘market’ of loans. Each stock market has regulations. Why cant we have markets for other claims? Why can’t we auction off uses of a design, rather than simply deny competitors to the market. it’s the state monopoly that’s the problem.

Material trespass and immaterial trespass are simply conventions driven by the ease of registry. In a man’s mind he can know his physical property, and know that any other object is not his physical property. If we could catalog ideas just as easily, would we not treat them as such? We do. We create ‘pointers’ to externally reference memories. They’re real world representations of abstractions.

Is the purpose of the libertarian program to create a platform for cooperation and trade, to minimize the potential for government corruption, interference, theft, bureaucracy, waste, violence, class warfare, and exploitation using the evidence of how men actually act? Or is to create another silly religion that is contrary to the behavior of human beings, or is it just another absurd metaphysics like Marxism?

A libertarian society must be one by consent – or we need to abandon the principle of non violence and implement it by force. And if it’s to be a society of consent, then it must reflect human behavior in order to gain consent. Human behavior, and the evolution of our knowledge, dictates that we leave the system for definition of property and the registry thereof open to innovation. Not closed, and limited to material constructs.

The general body of arguments on this topic are reductio and illusory because of it. The real issue at hand is that in the division of labor, specialized knowledge is required to in order to innovate, and innovation in all but the black swan areas requires capital concentration, and markets are best served by their own division of labor in the act of policing fraud and theft, or even of registrations of claims against property. Government is not an innovative organ, and it is a corrupt and slow moving one.

The issue instead, is to adopt a Hoppian division of labor and competition rather than a Rothbardian luddite program, or a government run monopoly program that by it’s very nature is expressly counter to the innovation, division of labor and specialization of knowledge needed to keep pace with our innovations, almost all of which, are currently ABSTRACTIONS. In this EXPANDING WORLD, the Hoppian model of privatization and risk management using insurance schemes rather than the monopoly of government is a superior answer than that of the Rothbardian luddite model, which artificially Harrison-Bergeron’s” the civilization – to a man.

If we can protect several property so that it can be invested in. We can protect abstract property so that it can be invested in. The institutional problem is registration and regulation. Not Rothbardian abstinence. And not to get a population to adhere to an absurd metaphysics. But to create institutions wherein real human beings can interact using real human innovations, almost all of which are abstractions, and most of which are now beyond individual comprehension. ( Property requires memory. Institutions are a form of social memory. Institutions educate indirectly. Memory becomes behavior. Behavior becomes normative.) Our problem is institutions, not beliefs. Actions not words.

And any libertarian, and anarchic program that would simply force people to prefer to resort to violence to resolve differences, or which would impoverish the greater body of people by making them less competitive against other groups (which Rothbardian property would do) is simply to exchange the prosperity of the market for abstract registry of opportunities for the poverty of the bazaar society. It is regression. It is to limit man to the industrial age. It’s a luddite philosophy.

The anarchic research program’s undermining of the historic legitimacy of the state is separate from the use of non-state (insurance) institutions to maintain both real and abstract property.

Focus on the right problem. Private, competitive, market institutions that divide knowledge and labor and provide service over government monopoly institutions that provide corruption, theft and incompetence.

Peter Surda April 21, 2010 at 12:31 pm

Despite your, admittedly, well meant efforts, you miss the obvious. The question isn’t whether we can trade abstractions. The question is whether a claim on an abstraction can bind a person that is not a party to a contract.

The examples you use:

I can form an abstract entity called a joint stock corporation, and then sell shares. I can marry someone and get a marriage certificate. I can get a receipt for a deposit. I can sign a contract. I can buy an option. I can wager a bet.

Are all examples of contracts. In order for them to work, they do not require the recognition of trespass, merely of contract violations. None of them can be used to prevent me from “trespassing” the claims therein. If I refuse to recognise your wife as such, what legal recourse you have against me? None.

Once you allow the concept of immaterial trespass, there is no obvious place to stop. The more abstract concept takes precedence over the less abstract one, and all causes over their effects. In the end of the iterations the first human predecessor to “discover” purposeful action would have the claim on all subsequent purposeful action by any being that lived after him, thus invalidating the concept of property.

We can protect abstract property so that it can be invested in.

This is a misunderstanding often repeated by IP proponents. Benefiting from something is not a discrete, but a continuous variable. On one end, you have the alteration of a physical object, on the other end you have externalities (I have yet to meet an IP proponent that does not accept the concept of externalities). Once you leave the point of physical alteration, there is no obvious point to stop. So the question isn’t “can we protect abstract property” but “to what extent should we protect it” (my answer: to the extent covered by contracts). It isn’t “should an investor benefit form abstract property” but “to what extent should the investor benefit from abstract property” (my answer, again: to the extent covered by contracts).

You ask:

Why cant we have markets for other claims?

Sure we can. And we do. They do not require the recognition of trespass.

Jeremiah Dyke April 21, 2010 at 6:17 pm

My apologies for my tardiness in the discussion I’m left to nit-pick through your points.

“Instead, the property violation occurs when the paparazzi interfere with a person’s actions and movement, obstruct their conversations and social meetings, invade their homes, or attempt to create news by antagonizing the celebrity.”

Yes, but with a disclaimer. Property rights violation of this nature can only occur within private property. In a system of communal property, like a sidewalk or road, or private property with an indifferent owner, there is no implicit assumption that says the paparazzi is committing a property violation by engaging in this behavior. Under libertarian law how would a celebrity have a superior claim to a specific space than the paparazzi? Why couldn’t the paparazzi claim the celebrity was holding up their actions, movements, conversations, etc?

“Hence, profiting by manufacturing damage to a person’s reputation is simply an act of theft.”

How so? What is so special about a rumor being true? There is benefit in false rumors, the same way there is benefit in quasi-truth rumors. If spreading a negative-false rumor is theft than so is spreading a negative-true rumor. The only difference is that the negative-false rumor affects the person the rumor is about; whereas the negative-true rumor affects a third party. Theft would presuppose property, but how is reputation property? And if it is property, as in thoughts are property, it is not the property of the default individual, but property of the public. You do not have a monopoly on your own reputation.

Inquisitor April 20, 2010 at 10:16 pm

So do tell, how does influencing one’s opinion on another person count as ‘theft’? Does saying ‘X product is bad, don’t buy it’ count as ‘theft’?

Curt Doolittle April 21, 2010 at 10:05 am

why is court the same as paparazzi, or why is it different? The argument is specious.

Curt Doolittle April 21, 2010 at 10:40 am

(wrong paste, wrong send, apologies)

Because it’s a two step process. 1 – Manufacture of the product. 2 – Sale of the product. Step one is a property crime of interference – at least as how libertarians define it. Step two is tainted.

You’re conveniently ignoring the first violation to justify the second. (And your confirmation bias I assume.) :)

Or, if I lay a tiger trap for you, and kill you, and sell it on DVD, is the DVD not the product of murder? It’s a constructed event. If on the other hand, I set up a camera at an intersection and catch you stealing a purse, then that’s not interference. Just observation.

If I stage a bit of theatre (comedy) that makes a fool of you, that’s one thing – we are all fools under various circumstances. If I stage a bit of theatre that says you’ve committed a property violation, then that’s constructed.

Paparazzi are either observers or constructors. Constructors are thieves. Celebrities should have the right of restitution.

Peter Surda April 21, 2010 at 12:46 pm

What you basically said is that if you disapprove of something, it makes it theft. But, again, that can be anything!

George April 21, 2010 at 10:27 am

So do tell, how is it not injurious to the victim involved if you seek to deliberately damage someone’s reputation?

Shay April 21, 2010 at 5:12 pm

So do tell, how is it not injurious to the victim involved if you seek to deliberately offer overwhelming competition to someone’s business, thereby putting them out of business?

Curt Doolittle April 21, 2010 at 8:37 pm

Because a market activity is a form of sanctioned competition. It is both a research program, and decreases prices or increase choices for consumers. Consumers benefit. That is our justification. Interfering with someone’s actions is simply a property violation. And in the case of paparazzi, a state sanctioned interference.

George April 23, 2010 at 2:40 pm

You answered my question with another question.

First of all, competition is legitimate. If I create something that’s better than you, and the consumer chooses my product instead, that is legitimate. If you are a model and a hotter model comes along and suddenly you are not as great, that is legitimate.

If instead I spread stories about how you were a porn star and a hooker when you were younger and you smoke up drugs, and none of it is true… you seriously cannot see what’s wrong with that? you honestly don’t see the difference between the two? Are you honestly telling me that you cannot tell the difference between deliberately damaging someone’s reputation and competing in the market place? I guess for someone with no morals, there is no difference.

Peter Surda April 26, 2010 at 9:17 am

The difference is in human psychology, not in the nature of the phenomena you are comparing.

Aubrey Herbert April 20, 2010 at 10:27 pm

Curt –

“However, it is still a person’s asset, regardless of price, because people ACT as if it is an asset, and that asset has material value to individuals, which we can determine by surveying the ACTIONS that people take, businesses take, regarding their reputations”

Negative. Rothbard would disagree with that – as should everyone, as indicated here. (http://mises.org/daily/2120#2)

You’ve adopted the concept of “harm”. Tsk tsk.

Just briefly, although he talks about it more in the link – so do check it out.

In the law of torts, “harm” is generally treated as physical invasion of person or property. The outlawing of defamation (libel and slander) has always been a glaring anomaly in tort law. Words and opinions are not physical invasions. Analogous to the loss of property value from a better product or a shift in consumer demand, no one has a property right in his “reputation.” Reputation is strictly a function of the subjective opinions of other minds, and they have the absolute right to their own opinions whatever they may be. Hence, outlawing defamation is itself a gross invasion of the defamer’s right of freedom of speech, which is a subset of his property right in his own person.[15]

Curt Doolittle April 21, 2010 at 9:56 am

Of course I did NOT adopt the concept of harm. I expressly, by example, used the concept of market and price, which is a function of measurement, not value. (Or do you not know the difference?)

The contradiction in Rothbard’s argument is the confusion between the subjective opinion of other minds, and the manufacture of information that is put into them – which is an ACTION.

Observation is just that. Acting, as do papparazzi, to interfere with someone’s actions is not observation. It is interference in action.

Whether or not people here agree with it or not is not material. It’s whether the metaphysics stands to scrutiny. :) (It doesn’t) Or, are you saying that you’re practicing a religion?

Curt Doolittle April 21, 2010 at 10:04 am

…. and all that is before we analyze the purpose of the freedom of speech. At which point we come into actions taken by the paparazzi in question that manufacture an event, which he profits from by selling his image or story, to the decline in price of the person’s reputation.

If I put a celebrity’s picture on a bottle of snake oil and sell it to you, is that acceptable? If I take out an advertisement that you molested your children, and it’s false, is that acceptable?

You are advocating capital-tyrrany, rather than political tyranny or tyranny of violence. Capital tyrrany will will end in violence, because people DO act as if reputation is property. In fact, people will kill because of it. Money is one thing. Status is something else. If you think you are going to create an ethic where status is absent, then you’re simply another religious acolyte.

Jeremiah Dyke April 21, 2010 at 6:35 pm

You keep assuming that there is a TRUE reputation and a FALSE reputation.

If you define a true reputation as one that adheres to the beholders consent then I’m sure there are no proper reputations.

Besides, different people weigh acts on someone’s reputation differently. When I hear about charity givers I immediately think what’s in it for them. When I hear of certain peccadilloes I think “what an a**hole” while other so-called faults, like infidelity, I think “good for them”.

These weights change overtime also.

Being labeled a communist may at one time have given you a comfortable office at a university, years latter individuals loathed being labeled a commiee, today we use the language loosely. Are we also to hold these reputation-thieves accountable for such changes in consumer taste?

Curt Doolittle April 21, 2010 at 8:31 pm

Show me where I say that.

I may imply that there is a positive and a negative sentiment to the set of memory associations held by individuals whose aggregate expression either increases a man’s potential or decreases it. (marketers measure it all the time, so it exists and is quantifiable by the cost of maintaining it.) I do not say that is true or false. I say only that manufacturing an incident is a violation of the celebrity’s property rights.

RE: “When I hear about charity givers I immediately think what’s in it for them. When I hear of certain peccadilloes I think “what an a**hole” while other so-called faults, like infidelity, I think “good for them”.

Of course, you’re now confusing your act of observation, with someone else’s act of sale and distribution. And that’s confused with the act of interfering with someone’s actions in a purposeful attempt to obtain a reaction, and the state’s interference in the violence that would be used against the paparazzi if they did not have state protection.

Jeremiah Dyke April 21, 2010 at 8:59 pm

“I say only that manufacturing an incident is a violation of the celebrity’s property rights.”

If we are debating the image/reputation as the property right being violated then the violation is outsourced. The individual who is harmed by the manufacturing of an incident is not the owner of the property being violated . True, they are harmed by the violation, but they never owned the right not to be harmed. They never owned their reputation because a reputation is by definition another’s thoughts of you. Individuals may engage in an investment of their own reputation-stock, but this in no way legitimizes they own it—they only own their actions of molding it.

Many people who sue for libel have invested nothing in protecting them from the rumor/staged incident.

newson April 20, 2010 at 10:35 pm

“…has granted the rights of theft to paparazzi.

by stealing an image? so all photography is theft unless express permission is granted by all those captured in the image?

Curt Doolittle April 21, 2010 at 9:48 am

If you read what I wrote, you would see that no, it’s not stealing the image, but interfering with their actions.

newson April 21, 2010 at 10:14 pm

well, aside from trespassing on celebrities’ property, already covered by the criminal code, i fail to see how taking photos is interfering with anyone’s actions. nobody has a right to privacy in a public space, nor enjoy private, uninterrupted conversation. stars should hold the chat until the venue is private.

unless there’s actual physical contact or threats of physical violence, i fail to see anything more than annoyance. if someone provokes me by name-calling, i cannot see that this entitles me to punch his lights out, however hurtful the words.

Artisan April 21, 2010 at 8:20 am

God knows the actual society is not ruled by libertarian ideas. People accused Greenspan of “deregulating” the markets. But everyone here knows better: the deregulation was so harmful because it was an imbalanced deregulation on top of another prior regulation of the money supply.This confusion makes it difficult likewise to judge the positive impact of paparazzi deregulation laws like here advocated.Perhaps the social problem of reputation lays somewhere else nowadays. Not within the fact that someone interferes with someone else’s public image, but within the fact that most personalities that are victims of paparazzi are also initially profit taker from a strange exclusivity law that is too much regulated uphill by Government action. Julia Roberts is paid a million dollar for acting in a movie whereas another better actress is paid 10.000 bucks perhaps. Who sets the price? We know it’s arbitrary, because of specific governments exclusivity laws, and we see how the studios are bound to lobby governments for even MORE copyright exclusivity – certainly not because of creativity concerns, which is the original essence of the law – but only so they can do some lucrative merchandising with their expensive investment – whose exclusivity is granted by law against anybody else – even the artist himself!Again I suggest to take a first logical and necessary small step to deregulation of the copyright industry in the direction of private enforcement without even challenging the ownership of “creation” or “image” (as it could be considered an individual homesteaded resource). However the right of enforcement to recoup debts of royalties should itself also ALWAYS stay by the individual “owner” of the image, with NO legal acknowledgment of any transmission contract to another party.Would that change something? You bet. Anybody claiming to prevent you from using a picture of someone else’s image SHOULD be the author itself or his representative. This right SHOULD be granted each time and SHOULD NEVER be part of an enforceable exclusivity contract.This means that a studio would lack the incentive to “invest” one zillion dollar in a “doll”, for that doll will ALWAYS be able to go to another competing studio anytime without even paying penalty fees.This is a blow to the morbid star system, and it hurts some undue industry privileges but it would be GOOD for stimulating artistic creativity, while still granting SOME individual protection to the artist AND lowering access cost to the public.

newson April 21, 2010 at 10:18 pm

better the abolition of all norms. let creators indeed show creativity in developing business models that actually work, rather than socializing the enforcement costs of exclusivity.

newson April 21, 2010 at 10:48 pm

artisan does make a good point about the celebrity machine, however. were it not for the intellectual property regime, one can imagine more art, but fewer bono’s or clooney’s. reducing barriers to entry (ie depriving the film studio or recording house of monopoly privilege) should increase the quantity and decrease the price of the art commodity.

it’s hard to imagine paparazzi chasing after 10000 mini-clooney’s.

Artisan April 22, 2010 at 4:34 am

As they say: “speak to your representative”!

This measure doesn’t challenge the only reason why the bill exists in the first place: to PROTECT “creators”, but it just limits the power of a secondary industry that the whole democratic society considers exaggerated. Even big shot artists. And it’s not stamped “libertarian”… ;-)

Kakugo April 21, 2010 at 10:25 am

Curious thing, paparazzi steer well clear of Switzerland. Many celebrities live there with their families (Ingvar Kampar, Mina, Michael Schumacher etc) and many, many other spend considerable time in glamorous locales like St Moritz or Gstaad. Yet not a single camera wielding vulture around.

It’s a different attitude which makes much more sense than harassing people for photo shot.

Vanmind April 21, 2010 at 3:55 pm

Speaking of trashy checkout-line rags, has anyone else got a glimpse lately of Sarah Jessica Anorexia?

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