ToS changes: “Never attribute to malice that which is adequately explained by short-sightedness”

Following the August 15th changes to the Second Life Terms of Service, and specifically the clauses contained in Section 2.3, many have taken time out to loudly and persistently proclaim that the wording is indeed deliberate and indicative that the Lab have darker desires on the content within Second Life (and their other properties) than they are willing to admit.

I’ve already pointed out in these pages that this needn’t actually be the case; that things might actually be down to a matter of the Lab trying to bring together their own Terms of Service with the Terms of Use previously employed by Desura. These latter, in their Section 2, contained wording remarkably similar to that found within Section 2.3 of the updated ToS. However, this point seems to have been largely ignored by those pointing to conspiracy theories and laying out an agenda of supposed intent on the Lab’s part.

But, even if I’m totally wrong about the Desura connection – and that could well be the case; God knows I’ve been wrong enough times in the past – does it really mean the Lab is awash with nefarious intent? Or did they simply take the easy option and boilerplate the updated ToS with scant regard for anything outside of the sections they’d identified as needing update (such as the inclusion of a revised dispute resolution section and clauses on updating the ToS?

In talking to an IP attorney over the past few days, I found myself pointed to a number of Terms of Service / Use documents which carry language largely identical to the Lab’s own. So much so that they look to have all been taken from the same boilerplate. Let’s look at some examples, starting with a refresher of the core element of Section 2.3 of the Lab’s ToS, with what have been seen as the key phrases of concern highlighted:

LL logo“Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.”

Now compare that to GigaOM’s own ToS Section 2.3:

gigaomYou hereby grant to GigaOM, and you agree to grant to GigaOM, a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, unconditional, unlimited, worldwide and cost-free license to use, copy, record, disclose, sell, re-sell, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, broadcast, publicly perform, display or otherwise exploit in any manner whatsoever, all or any portion of your User Submissions (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses, and to advertise, market and promote the same.

Or if you prefer, you might want to compare it with the Terms of Service from Tribal Nova, who run ILearnWith:

ilearnwithYou hereby grant to Tribal Nova, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.

Then we have Section 2.3 from Pivot TV’s Terms of Use:

pivotExcept as otherwise described in any applicable Additional Terms (such as a contest official rules, which specifically govern the submission of your User‑Generated Content), you hereby grant to Pivot, and you agree to grant to Pivot, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User‑Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.

Coast Wide also contains wording that mirrors the Lab’s – and guess what? It appears in Section 2.3 of their Terms of Service. I could go on: Options Away (a flight booking service), GS1 US, a US business facilitator, the non-profit Certified Audit of Circulations (CAC) all have wording that mirrors that of the Lab’s own Terms of Service – although admittedly, it doesn’t always occur in Section 2.3 (some have it in Section 3.3 or Section 4.3, depending on any “up top” preamble text).

I point to these other ToS / ToR / ToU documents not in defence of Linden Lab’s decision to pass the wording “as-is”, but rather to highlight the fact that rather than being the result of some nefarious plot on the Lab’s part, Section 2.3 actually has come about as a combination of boilerplating and Hanlon’s Razor (again, with “short-sightedness” replacing the more usual “stupidity”).

Not that the underpinning reason really matters. As it stands, Section 2.3 is too broad in its wording, boilerplated or not. It is leading to a further erosion of trust between Lab and content creators, and that does damage the platform as a whole.

Given this, I would hope that the Lab would provide a more open ear to the concerns that are being raised than it has so far shown, and agree that the wording does perhaps merit a revisit, even if only in part.

Sadly, and again as I’ve recently remarked, I doubt the Lab will see fit to listen to concerns or to believe that the wording can and does represent a further erosion of user / company trust. Rather, they’ll take the attitude that if the wording is  good enough for users of services X, Y, Z and whatever else, then it’s good enough for users of LL’s own properties, and those who think otherwise know very well how to close the door behind them.

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37 thoughts on “ToS changes: “Never attribute to malice that which is adequately explained by short-sightedness”

    1. Really? If everyone in SL were just more polite and quiet LL would have written a better TOS? I don’t get that argument.

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      1. I do not believe Mona is saying that. But rather, like me, that she finds all the constant theorising as to what ulterior motives the Lab “really” has is counter-productive when it comes to makes a clear-cut and direct case to them as to why people are upset over the changes, as it merely deflects from actually doing so.

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      2. If you did something wrong and I came to you calling you names, accusing you of basically everything, including the Original Sin and conspiring with the Devil to bring about Armageddon, would you listen to me? No.

        That’s what you’re doing. Here and on every other blog you grace with your comments.

        That’s not to say that the “for any purpose” clause needn’t be removed. It does. But with drama-whoring and conspiracy theories, nothing will be done. Period.

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  1. Well, if LL is using boilerplate ToS instead of hiring a lawyer to do that, it’s even worse than I thought 🙂

    Now the problem with “boilerplates” (and yes, I’ve heard of a few examples where things also were completely misapplied) is that they might not apply to the kind of service that LL is actually providing. For instance, a flight booking company obviously provides a completely different service than LL, and such terms might be fine for the flight booking company — but not for content hosting services.

    So, sure, we can attribute the badly worded to incompetence instead of malice, but that doesn’t mean LL shouldn’t fix it.

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    1. Oh, I agree absolutely. The range of organisations using this wording is actually so diverse, I wonder how many of them actually consider whether the wording accurately reflects the needs of their business, or how many approach things as a matter of finding something and using it to check a box.

      As to fixing it – hence my final paragraphs; whether biolerplated or not, LL should show a willingness to admit the fractious nature of the wording and an equal willingness to address the matter.

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  2. Given that Second Life (our world vs. the platform) is entirely dependent on user content, one would think the integrity of that content would warrant special attention from the lawyers.
    Unfortunately LL seems to have taken the position that an “assurance” that “we would never do that” is sufficient. “Trust me” as the used car salesmen say.

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  3. I may be wrong, but from my understanding, all the website you name here are not filled with contents made my users except for the first one, blog posts. While i do agree a blog post is also owns to his/her writer, its purpose is to be shared freely and the more it can. So it shouldnt be a problem here. Contents creations in SL are really different (except for freebies indeed).
    On top using a “boilerplate” is not an excuse for me, because then we should think about why and for who are created this such boilerplates… There are not done for protecting creators like us but more likely to protect and allow everything to rich and powerful companies.. and why ? for abusing even more the people and get more rich even.. so well, it doesnt reassure me at all to know they used such boilerplate… on the contrary
    explaining the reason is they used a boilerplate is just half of the analysis… one need to know for what are really done these boilerplates.

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    1. Doesn’t matter if the content is physically made or words or ideas or pictures. It amounts to the same thing. Someone’s original work is being claimed.

      As I said, I’m not excusing the use of a boilerplate. I’m offering an alternative as to how LL arrived at the current wording that doesn’t rely on them sitting in the basement of Battery Street concocting evil plans. Hence Hanlon’s Razor.

      And we don’t need to know the “why” in order to voice concern.

      I’ve already outlined six fundamental reasons why I believe the wording needs to be reconsidered – and I didn’t need to know LL’s motives, real or imagined, in order to be able to do so. All that focusing on the possible reasons does is take time away from thinking about how best to get the Lab to reconsider their position.

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  4. LL, and the other services you mention, are simply following the standard procedure for any legal document: Claim the world and let the opposition whittle you down. Patent attorneys do this all the time.
    Until the users rise up and throw attorneys of their own at these services, they are going to continue to claim rights to everything plus ten per cent.

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  5. I must confess, the people who say that there has to be the sale term to let LL sell SL to another corporate entity, seem to me to be making a bad argument.

    IP contracts, and business law in general, have a huge body of stature law and contract writing and testing that cover this. When Penguin and Random House merged, did every existing book contract end? Of course not. And there can be something in their standard contracts with authors which covers this, but no way would a professional author let it be as sweeping as this is.

    What, for me, is significant is that suppliers of digital content for computer modelling, such as Renderosity, have taken the trouble, since the new terms came into force, to announce they they do not sell content for use within Second Life. One assumes that they are a bit better informed than the average resident.

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    1. As I’ve already explained, Renderosity’s marketplace EULA has never made it OK for you, me or anyone to use its products in any grid-based virtual world, unless (that’s the only “loophole” in the licence) it’s a merchant resource. So, if you saw something (say, a 3D model of a tree) you liked on Renderosity, bought it, changed its leaves and trunk texture and uploaded it to Second Life or Kitely or AviNation or InWorldz or what have you, you’d be in violation of its EULA, even if you only used it for your own personal build.

      And then, they don’t even clarify if the prohibition they announce is retroactive or not. Basically, they’re penalising SL’s content creators for something they didn’t like about LL’s actions. Talk about getting mad at the donkey and beating the saddle.

      So, I really am not fussed about Renderosity’s announcement. It may be thrown around left, right and centre as “proof” that LL is “evil” and that Renderosity is “protecting” SL content creators’ IP rights, but – really – that’s bollocks.

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  6. If LL doesn’t realize they have an unusual amount of unique user-created content and should therefore craft a more relevant TOS, then they have bigger problems than we even knew. Who in their right mind would use boilerplate language for SL? Hire a real lawyer already, LL.

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  7. The main problem for me is not that LL may or may not do naughty stuff with the things we create (although I don’t like the idea) but that third party websites no longer trust LL with their stuff.
    I can live with LL owning my stuff, it upsets me but I wouldn’t leave SL.
    But when so many of the websites I use no longer let me use their stuff, my creativity is stifled and creativity is the backbone of our virtual world.
    So no matter what the legal mumbo jumbo actually means, two things SHOULD happen;
    1.LL should communicate better their intentions to the users.
    2.LL should talk to these third party websites, explain their intentions and if need be sign some papers and make agreements so they are fine with us using their textures again.

    As long as these third party websites don’t trust LL, many SL users will either not trust LL either and/or will suffer from not being able to use them.

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    1. Exactly, it is the slow stifling of creativity across all fronts.

      • Third-party sites who will no longer allow their content to be used in-world
      • Artists and performers from within Second Life who will not look to the platform as a creative means to develop their work
      • Artists and performers from outside of the platform who will no longer use it s a medium to present their works
      • Writers, innovators, creators who will no longer be willing to do any of their writing, innovation and creation within Second Life
      • (Add you own here…)

      These are the things which concern me as an SL user, as someone who has been a content creator and who does very much enjoy and appreciate the forum the platform provides for art, performance and the broadest possible cross-section of creative endeavour.

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  8. The “for the purpose of providing and promoting the service” which people have been begging to have re-instated *is* pretty much boilerplate for sites which are geared towards hosting and presenting users’ creative content, so it isn’t even for the lack of relevant templates.
    It really does look to me like a lawyer who didn’t even take the time to research the service he was writing for, but just went, “oh, here’s some boilerplate from the Internet. Might as well use it, since others are”. -And I will *not* replace “incompetence” with “short-sightedness” in that case.

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  9. Sure, Linden Lab appears to have copied language that is used on other sites. The problem – Second Life is fundamentally different from those sites. SL is a medium of artistic creation, and the rights that LL is claiming in their new TOS are way beyond the norm for such a medium, and also well beyond their own previous policies and claims about their intent.

    Good faith on the part of the Lab isn’t enough. For starters, people won’t believe them. Another problem is that good faith is not binding on anybody who might buy out Linden Lab. If LL wants creators to stay in Second Life, the TOS must change.

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    1. As I said in the piece. I’m not defending the move, and I believe the ToS should be changed. Rather I’m pointing out that there is a more direct explanation as to why this wording ended up in the ToS when compared to all the theories and dark mutterings circulating about the Lab’s intent in allowing the wording to pass.

      As to the creativity found in SL compared to these other sites – at the end of the day, it’s still a case of wording that lays claim to people’s ideas. Whether those ideas are the written word, images, or rendered content really makes no difference.

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  10. And yet, no changes, as yet and i do doubt soon!
    Linden Lab, no matter what any can say, is making sure users, creators or anybody else knows clear and without any doubt that, They just don’t care!

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  11. It’ll change eventually. Second Life users have a difficult time influencing Linden Lab because Second Life lacks even a single competitor that’s ever dented it’s numbers substantially. That’s not true for Linden Lab’s other properties though, and likely not true for future ones (except a Second Life successor maybe that earns the exact same niche).

    Maybe Desura developers will be the ones to cause a change. Desura competes with Steam’s indie platform, as well as Microsoft, Sony and Nintendo’s indie platforms for their different consoles and handhelds. So far, I haven’t seen any big outcry from Desura developers over the TOS change, but judging by the days and weeks of separation between posts on the developer forums, things aren’t too active over there.

    Should Desura ever take off though, Linden Lab won’t be able to afford the competitive disadvantage of an overreaching TOS. It’s only going to get worse if as they’ve hinted at, Desura also becomes a marketplace for selling all kinds of content other than games as well. Imagine musicians, writers, developers of other kinds of software and so on’s reaction to a “we can do whatever we want with your content” policy. It won’t fly. Linden Lab will be the one shown the door.

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    1. It’ll be interesting. Until the arrival of the ToS, Desura content contributors actually operated under a Terms of Use which specified more-or-less the same as the updated ToS. As such, the lask of response might be that those who do use the platform don’t have so much of an issue with the wording, rather than the non-response being down to a low usage of the forums there.

      Your second point again echoes mine on the broader aspect of things: how the ToS wording will reverberate with content creators / creators from all genres and backgrounds. As it is, writers, artists and performers with SL are already baulking at the wording. Those ripples run the risk of spreading and affecting future potential users of the medium, and of LL’s properties such as Desura (as the reach of that platform is extended, as you say) and also LL’s hinted-at “future” VWs

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      1. It could be Desura developers don’t have issues with the wording, but I believe the low usage of Linden Lab’s other products, including Desura, is the only reason there hasn’t been additional uproar over the TOS.

        Linden Lab and Second Life aside, there’s been too many incidents in the past where large active communities have become up in arms once they’ve felt their content ownership rights were threatened. For a couple of examples, Facebook faced criticism over content ownership back in 2009. Instagram years later faced the same criticism and fears that photos would be sold after a TOS change, In both cases the TOSes were misunderstood and didn’t actually reach as far as most thought; in Instagram’s case the TOS was changed to something more appeasing anyway. In both cases, both companies were well informed by their users that a TOS like Linden Lab’s would be completely unacceptable.

        If large companies like Facebook and Instagram faced such criticism because of vague wording, what chances does something like DIO have when Linden Lab is blatantly stating they can sell or do whatever else they want with photos and more?

        Given how seriously content rights are taken in much larger products than Second Life, I don’t think this is a case of Second Life users overreacting and falling prey to mob mentality as some of us are sometimes prone to. Linden Lab can afford to ignore Second Life users, but I think in this situation those of us concerned are likeminded with the masses that Linden Lab needs as customers for their other products to succeed. To keep this TOS seems like suicide in the long term.

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    2. I agree that up until now SL has not really faced any serious challenge, but this is more down to a lack of awareness that other SL like environments exist. Many in SL aren’t aware of the existence of grids such as OS Grid, though they may be vaguely aware of other ‘walled gardens’ such as Avination and InWorldz, which are indeed no serious threat to SL. However, where the big change in user numbers is is in the case of private, hypergrid enabled mini grids which are increasingly popular, especially as there are now easy to implement versions available, such as the Diva Distro and New World Studio. No one is really sure how many such grids exist, but the number is increasing, and many educational institutions are finding OpenSim a far better fit than SL ever was, and certainly far more cost effective!

      All the usual wailing and gnashing of teeth, (amongst so called ‘creators’ who are in it for the money more than the creativity) is perhaps typical and predictable, but it has to be faced that OpenSim is beginning to be a very real challenge to the supremacy of SL. OpenSim has often been accused of being a hot bed of copybotters, but that is not really fair and accurate characterisation of OpenSim users, who tend on the whole to be a very creative bunch, but not neccesarily a very commercially minded group. There is no doubt that there is a lot of content on OpenSim grids that is ‘illicitly’ copied from SL, people using non-approved viewers to import items from their SL inventories that they paid for. Unlike SL where you will find stolen content on sale, in OpenSim grids you will not see this stuff for sale, as no-one wants to profit from the creations of others, but does wish to look good. It’s basically a DRM issue, and that is one that neither LL or the money-grabbing creators are going to be able to counter long term. Increasingly I come accross OpenSim users who do import their inventory items from SL, but the general concensus is that this is because, a) they paid for it, and b) it is not available in OpenSim grids. There also seems to be a general concensus that fair minded creators who are not out to make a killing would fare well in OpenSim grids, even if they did charge, as most people using OpenSim as a platform would be happy to pay for decent fair priced content.

      The Kitely Market is quite quickly developing, though as yet it is no where near as comprehensively stocked as the Second Life Marketplace, and also seems to have more than it’s fair share of deluded individuals who think they can charge extremely inflated prices, (even by the often deluded standards of SL) for sub-par content that any self-respecting n00b would avoid. As OpenSim develops, and it is developing fast, more and more of the wiser creators, (those who create decent content and sell at fair prices) in SL will, if they have any sense, will wake up and smell the coffee and realise that they have little to fear in OpenSim, and that they could actually be better off financially as they wouldn’t be required to offset the prohibitively high prices of using the LL platform.
      I am a creator, but little of my stuff ever gets to SL as the upload costs alone deter that, but I also have my own mini grid running on my own server machine at home and connected to the rest of the metaverse by Hypergrid. It’s a small 9 region grid, but that costs me nowhere near $295 per month plus 20% in VAT because I live in Europe. In SL it would cost me $3186 a month for that set up, but I can run it myself for the cost of my internet connection plus any additional electricity the server uses, which comes nowhere near the $3000 plus it would cost in SL.

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      1. I want to ask a simple question. Let’s say that tomorrow we all left Linden Lab and went to the OpenSim alternatives, depriving LL of the income generated by our land rentals, upload fees and virtual commerce transactions. How long do you think OpenSim would last then as a platform?

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  12. Why does it matter how Linden Lab arrived at the wording of the new TOS. What matters is that they are refusing to change it. And that’s malice.

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    1. AMEN Latif. They are more than aware of how people feel about it – up to and including qualified lawyers. They are not changing it. It does no good to speculate why they did it. It does no good to assume they will “never go that far”. All you can count on is the black-and-white of a TOS they feel comfortable with. If you do not want your content to be auto-licensed to Linden Lab for their use, however they see fit, the only choice you have is to pull it and go elsewhere.

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  13. Really? In this day and age you’re going to give the benefit of the doubt to a Corporation? You haven’t been here long have you? Corporations exist for one purpose and one purpose only. To make money for their owners. Never forget that.

    It is always wise to assume a change is malicious and meant to cheat you out of your money. That’s what Corporations do, they make money, any way they can. And they will lie, cheat and steal anytime they can get away with it to make more money. They will raise the prices of their goods as high as the market will tolerate to make money.

    Corporations don’t care about you, they never have, they never will. They just want your money. And as soon as you’re not giving them your money, they have no further use for you. Always assume anything a Corporation does is to make them more money. The changes to the TOS looked and still look like a big grab by Linden Lab, to make more money. It’s what Corporations do after all. I will only believe these changes are not malicious in intent when they change them to something that is fair and equitable to everyone involved. As long as they hold the upper hand, these are malicious changes. Maybe not today, maybe not a year from now, but if these changes stick, they will turn malicious, someday. That a bet you wanna make?

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    1. I never said I trust. What I’m pointing out is that there is a Terms of Service boilerplate out in common use in the world at large which contains the precise wording found in Section 2.3.

      As such, I’m offering a counter-point to all the wild conspiracy theories that have been doing the rounds about LL changing the ToS so that they can sell people’s content or so that they can sell-off Second Life (or the entire company) or so they can IPO – none of which (yes, including selling people’s content) – actually require any change to the ToS in order for them to be able to do.

      Rather my point is and remains, the fact that there is a much simpler alternative: find the best fit document which covers needs & more and use it – and don’t think too deeply about customer reaction. That’s how corporations behave. Doesn’t mean it’s done with deliberate, focused, malicious intent.

      Does that make the changes to the ToS OK? No, it doesn’t – but again, I’m not saying that either. Quite the reverse in fact, as I’ve indicated elsewhere.

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