Che Guevara, Donald Trump, Public Citizen (Founded by Ralph Nader), and Copyright Law

From Paul Alan Levy of Public Citizen (Consumer Law & Policy Blog):

The personal and commercial heirs of the deceased photographer Korda, best known for the iconic photograph of Che Guevara that has adorned Tshirts and posters displayed by young admirers for fifty years, have issued a takedown demand to Liberty Maniacs over its sales of parody items that display the photo’s cap and hair but replace Guevara’s visage with, alternately, Donald Trump and Alexandria Ocasio-Cortez. Advancing claims both under the doctrine of moral rights and under copyright law, Randy Yaloz, a New York lawyer based in Paris who proudly identifies himself as “combative” (but wrote using an letterhead identifying himself as an adjunct professor at his alma mater, New York Law School, where he does not currently teach), demands both that the parodies be taken off the market and that the parodist pay damages.

Trump Che

In a response letter sent this morning, we have explained that moral rights are not enforceable in the United States, that the First Amendment protects the right of parody, and that any copyright claims would be defeated by fair use. The lawyer has not answered my question about whether he is trying to stop the production of Tshirts that carry the Korda photo adoringly (albeit without license fee), or if copyright law is just an excuse to suppress critical uses of the photo, in which case Liberty Maniac (whose parodies I have been pleased to protect against campaign committees for Hillary Clinton and Bernie Sanders, as well as the NSA and TSA), could have a claim for copyright misuse.

Paul’s letter is a characteristically readable and professional-yet-pugnacious; an excerpt from the concluding paragraph:

(I should note, for the sake of precision, that Ralph Nader hasn’t been officially involved with Public Citizen since 1980; but the juxtaposition of him, Guevara, and Trump was too much to resist. I should also note that this post was blogged using the highest cord in the land, here at the U.S. Supreme Court library.)

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Che Guevara, Donald Trump, Public Citizen (Founded by Ralph Nader), and Copyright Law

From Paul Alan Levy of Public Citizen (Consumer Law & Policy Blog):

The personal and commercial heirs of the deceased photographer Korda, best known for the iconic photograph of Che Guevara that has adorned Tshirts and posters displayed by young admirers for fifty years, have issued a takedown demand to Liberty Maniacs over its sales of parody items that display the photo’s cap and hair but replace Guevara’s visage with, alternately, Donald Trump and Alexandria Ocasio-Cortez. Advancing claims both under the doctrine of moral rights and under copyright law, Randy Yaloz, a New York lawyer based in Paris who proudly identifies himself as “combative” (but wrote using an letterhead identifying himself as an adjunct professor at his alma mater, New York Law School, where he does not currently teach), demands both that the parodies be taken off the market and that the parodist pay damages.

Trump Che

In a response letter sent this morning, we have explained that moral rights are not enforceable in the United States, that the First Amendment protects the right of parody, and that any copyright claims would be defeated by fair use. The lawyer has not answered my question about whether he is trying to stop the production of Tshirts that carry the Korda photo adoringly (albeit without license fee), or if copyright law is just an excuse to suppress critical uses of the photo, in which case Liberty Maniac (whose parodies I have been pleased to protect against campaign committees for Hillary Clinton and Bernie Sanders, as well as the NSA and TSA), could have a claim for copyright misuse.

Paul’s letter is a characteristically readable and professional-yet-pugnacious; an excerpt from the concluding paragraph:

(I should note, for the sake of precision, that Ralph Nader hasn’t been officially involved with Public Citizen since 1980; but the juxtaposition of him, Guevara, and Trump was too much to resist. I should also note that this post was blogged using the highest cord in the land, here at the U.S. Supreme Court library.)

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Here Are the Problems With the Attorney General’s Plan To Expand Background Checks for Gun Buyers

Attorney General William Barr is reportedly floating a proposal to expand background checks for gun buyers that is similar to an unsuccessful 2013 bill sponsored by Sens. Joe Manchin (D–W.Va.) and Patrick Toomey (R–Pa.). The proposal would require background checks for “all advertised commercial sales, including gun sales at gun shows.”

Manchin and Toomey’s Public Safety and Second Amendment Protection Act would have required that federally licensed firearm dealers, who are already required to conduct background checks, be involved in all sales at gun shows and all transfers resulting from online or print ads. It explicitly exempted transfers “between spouses,
between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins.”

Barr’s proposal would do pretty much the same thing, but it also would authorize licenses for “transfer agents” to help gun owners comply with the background check requirement. The idea, presumably, is that the new category of licensees would make compliance easier by providing an alternative to firearm dealers.

This proposal is less sweeping than the Bipartisan Background Checks Act of 2019, which the House of Representatives approved last February. That bill, which was supported by 232 Democrats but only eight Republicans, would ban almost all gun transfers by people who are not licensed dealers. It applies to any sale, whether or not it happens at a gun show and whether or not the firearm was advertised.

The House bill makes an exception for “a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, including step-parents and their step-children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren.” If money changes hands, in other words, a background check would be required even for transfers between relatives.

Both proposals share the same problems as any other effort to expand the reach of background checks. First, the categories of prohibited buyers are irrationally and unfairly broad, encompassing millions of people who have never shown any violent tendencies, including cannabis consumers, unauthorized U.S. residents, people who have been convicted of nonviolent felonies, and anyone who has ever undergone mandatory psychiatric treatment because he was deemed suicidal.

Second, background checks are not an effective way to prevent mass shootings, since the vast majority of people who commit those crimes do not have disqualifying criminal or psychiatric records. Third, background checks, even if they are notionally “universal,” can be easily evaded by ordinary criminals, who can obtain weapons through straw buyers or the black market. Fourth, voluntary compliance is apt to be the exception rather than the rule, and enforcement will be difficult, if not impossible.

Since the Manchin-Toomey approach applies only to relatively conspicuous sales, enforcement would be easier, but only because unadvertised private sales would be exempt. The House bill would be mostly aspirational and symbolic, since the government has no way of knowing when guns change hands in private transactions if the sales are not advertised and do not happen at gun shows.

In a study published last year, researchers looked at what happened after Colorado, Delaware, and Washington expanded their background check requirements. They reported that “background check rates increased in Delaware, by 22%–34% depending on the type of firearm,” but “no overall changes were observed in Washington and Colorado.” It is hard to see how the federal government can do any better, since it does not know who owns which guns and cannot possibly monitor unrecorded private transfers.

After the mass shootings in El Paso, Texas, and Dayton, Ohio, last month, President Donald Trump signaled his support for expanded background checks. “Serious discussions are taking place between House and Senate leadership on meaningful Background Checks,” he said in an August 9 tweet. “I have also been speaking to the NRA, and others, so that their very strong views can be fully represented and respected. Guns should not be placed in the hands of mentally ill or deranged people. I am the biggest Second Amendment person there is, but we all must work together for the good and safety of our Country. Common sense things can be done that are good for everyone!”

The White House, however, has not accepted ownership of Barr’s idea, and most Republicans in the Senate will not support a background check bill unless Trump says he is prepared to sign it. Politico reports that “a senator who met with Barr said the attorney general made clear he had authorization from the White House.” That seemed to be news to the White House. Presidential spokesman Hogan Gidley told Politico “the president has not signed off on anything yet but has been clear he wants meaningful solutions that actually protect the American people and could potentially prevent these tragedies from ever happening again.”

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Here Are the Problems With the Attorney General’s Plan To Expand Background Checks for Gun Buyers

Attorney General William Barr is reportedly floating a proposal to expand background checks for gun buyers that is similar to an unsuccessful 2013 bill sponsored by Sens. Joe Manchin (D–W.Va.) and Patrick Toomey (R–Pa.). The proposal would require background checks for “all advertised commercial sales, including gun sales at gun shows.”

Manchin and Toomey’s Public Safety and Second Amendment Protection Act would have required that federally licensed firearm dealers, who are already required to conduct background checks, be involved in all sales at gun shows and all transfers resulting from online or print ads. It explicitly exempted transfers “between spouses,
between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins.”

Barr’s proposal would do pretty much the same thing, but it also would authorize licenses for “transfer agents” to help gun owners comply with the background check requirement. The idea, presumably, is that the new category of licensees would make compliance easier by providing an alternative to firearm dealers.

This proposal is less sweeping than the Bipartisan Background Checks Act of 2019, which the House of Representatives approved last February. That bill, which was supported by 232 Democrats but only eight Republicans, would ban almost all gun transfers by people who are not licensed dealers. It applies to any sale, whether or not it happens at a gun show and whether or not the firearm was advertised.

The House bill makes an exception for “a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, including step-parents and their step-children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren.” If money changes hands, in other words, a background check would be required even for transfers between relatives.

Both proposals share the same problems as any other effort to expand the reach of background checks. First, the categories of prohibited buyers are irrationally and unfairly broad, encompassing millions of people who have never shown any violent tendencies, including cannabis consumers, unauthorized U.S. residents, people who have been convicted of nonviolent felonies, and anyone who has ever undergone mandatory psychiatric treatment because he was deemed suicidal.

Second, background checks are not an effective way to prevent mass shootings, since the vast majority of people who commit those crimes do not have disqualifying criminal or psychiatric records. Third, background checks, even if they are notionally “universal,” can be easily evaded by ordinary criminals, who can obtain weapons through straw buyers or the black market. Fourth, voluntary compliance is apt to be the exception rather than the rule, and enforcement will be difficult, if not impossible.

Since the Manchin-Toomey approach applies only to relatively conspicuous sales, enforcement would be easier, but only because unadvertised private sales would be exempt. The House bill would be mostly aspirational and symbolic, since the government has no way of knowing when guns change hands if the sales are not advertised and do not happen at gun shows.

In a study published last year, researchers looked at what happened after Colorado, Delaware, and Washington expanded their background check requirements. They reported that “background check rates increased in Delaware, by 22%–34% depending on the type of firearm,” but “no overall changes were observed in Washington and Colorado.” It is hard to see how the federal government can do any better, since it does not know who owns which guns and cannot possibly monitor unrecorded private transfers.

After the mass shootings in El Paso, Texas, and Dayton, Ohio, last month, President Donald Trump signaled his support for expanded background checks. “Serious discussions are taking place between House and Senate leadership on meaningful Background Checks,” he said in an August 9 tweet. “I have also been speaking to the NRA, and others, so that their very strong views can be fully represented and respected. Guns should not be placed in the hands of mentally ill or deranged people. I am the biggest Second Amendment person there is, but we all must work together for the good and safety of our Country. Common sense things can be done that are good for everyone!”

The White House, however, has not accepted ownership of Barr’s idea, and most Republicans in the Senate will not support a background check bill unless Trump says he is prepared to sign it. Politico reports that “a senator who met with Barr said the attorney general made clear he had authorization from the White House.” That seemed to be news to the White House. Presidential spokesman Hogan Gidley told Politico “the president has not signed off on anything yet but has been clear he wants meaningful solutions that actually protect the American people and could potentially prevent these tragedies from ever happening again.”

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8 Cases Everyone Should Know from the Taney and Chase Courts

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should KnowThis post will focus on cases from the Taney and Chase Courts.

Prigg v. Pennsylvania (1842)

Dred Scott v. Sandford (1857)

Ex Parte Merryman (1861)

United States v. Dewitt (1869)

Hepburn v. Griswold (1870)

Knox v. Lee (1871)

The Slaughter-House Cases (1873)

Bradwell v. Illinois (1873)

You can also download the E-Book or stream the videos.

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8 Cases Everyone Should Know from the Taney and Chase Courts

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should KnowThis post will focus on cases from the Taney and Chase Courts.

Prigg v. Pennsylvania (1842)

Dred Scott v. Sandford (1857)

Ex Parte Merryman (1861)

United States v. Dewitt (1869)

Hepburn v. Griswold (1870)

Knox v. Lee (1871)

The Slaughter-House Cases (1873)

Bradwell v. Illinois (1873)

You can also download the E-Book or stream the videos.

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The Supreme Court’s Next Big School Choice Case

In 2002, the U.S. Supreme Court upheld Cleveland, Ohio’s school choice program against the charge that it was unconstitutional for that city to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. So long as “a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” the Court said in Zelman v. Simmons-Harris, the program passes constitutional muster.

The Supreme Court is now preparing to weigh the constitutional merits of another school choice initiative. At issue in Espinoza v. Montana Department of Revenue is a 2015 scholarship program created by the Montana legislature “to provide parental and student choice in education.” The program operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify for the scholarships may use the money to help send their children to a “qualified education provider,” a statutory category which includes religiously affiliated private schools, grades K through 12.

In 2018, however, the Montana Supreme Court declared religious schools entirely off-limits for the program, pointing to a provision of the Montana Constitution which prohibits the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination.”

In other words, the Montana Supreme Court said that the state Constitution prohibits the very sort of school choice programs that the U.S. Supreme Court has previously upheld under the federal Constitution. The Montana Court resolved this conflict by putting its own interpretation first. “We conclude that Montana’s Constitution more broadly prohibits ‘any’ state aid to sectarian schools and draws a ‘more stringent line than that drawn’ by its [federal] counterpart,” the state court declared.

That judgment will now be reviewed by the U.S. Supreme Court.

It is difficult to imagine a majority of the justices allowing the Montana decision to stand. For one thing, the Montana scholarship program seems to easily satisfy the test of constitutionality set out in Zelman v. Simmons-Harris and related cases. For another, the Supreme Court is unlikely to let a state court chart its own path in opposition to the federal jurisprudence that is in place for the rest of the country. It is one thing, after all, to let the states operate as “laboratories of democracy,” but it is something else to let the Constitution effectively mean two different things in two different states, to say that the Constitution protects the rights of parents and children to access school choice programs in Ohio but does not protect the rights of parents and children to access similar programs in Montana.

Assuming the Supreme Court follows its own precedents, Espinoza v. Montana Department of Revenue looks to be a winner for the school choice side.

Oral arguments in the case are likely to be held sometime in early 2020.

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The Supreme Court’s Next Big School Choice Case

In 2002, the U.S. Supreme Court upheld Cleveland, Ohio’s school choice program against the charge that it was unconstitutional for that city to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. So long as “a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” the Court said in Zelman v. Simmons-Harris, the program passes constitutional muster.

The Supreme Court is now preparing to weigh the constitutional merits of another school choice initiative. At issue in Espinoza v. Montana Department of Revenue is a 2015 scholarship program created by the Montana legislature “to provide parental and student choice in education.” The program operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify for the scholarships may use the money to help send their children to a “qualified education provider,” a statutory category which includes religiously affiliated private schools, grades K through 12.

In 2018, however, the Montana Supreme Court declared religious schools entirely off-limits for the program, pointing to a provision of the Montana Constitution which prohibits the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination.”

In other words, the Montana Supreme Court said that the state Constitution prohibits the very sort of school choice programs that the U.S. Supreme Court has previously upheld under the federal Constitution. The Montana Court resolved this conflict by putting its own interpretation first. “We conclude that Montana’s Constitution more broadly prohibits ‘any’ state aid to sectarian schools and draws a ‘more stringent line than that drawn’ by its [federal] counterpart,” the state court declared.

That judgment will now be reviewed by the U.S. Supreme Court.

It is difficult to imagine a majority of the justices allowing the Montana decision to stand. For one thing, the Montana scholarship program seems to easily satisfy the test of constitutionality set out in Zelman v. Simmons-Harris and related cases. For another, the Supreme Court is unlikely to let a state court chart its own path in opposition to the federal jurisprudence that is in place for the rest of the country. It is one thing, after all, to let the states operate as “laboratories of democracy,” but it is something else to let the Constitution effectively mean two different things in two different states, to say that the Constitution protects the rights of parents and children to access school choice programs in Ohio but does not protect the rights of parents and children to access similar programs in Montana.

Assuming the Supreme Court follows its own precedents, Espinoza v. Montana Department of Revenue looks to be a winner for the school choice side.

Oral arguments in the case are likely to be held sometime in early 2020.

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Did California Just Abolish Single-Family Zoning?

From the passage of statewide rent control to the failure of a bill legalizing more home construction near transit and job centers, it hasn’t been a great year for free market solutions to California’s housing shortage. That is, at least, until you consider the quiet success of efforts to allow for more accessory dwelling units (ADUs).

In the waning days of the 2019 legislative session, state lawmakers passed a series of bills loosening up zoning rules governing ADUs, sometimes known as granny flats or in-law suites. These reforms—which build on legislation passed in 2016—put additional limits on the powers of local governments to regulate ADUs to death, and allow more homeowners to convert their garage or tool shed into affordable rental housing.

“The big news is that we have effectively ended single-family zoning in California,” says Matthew Lewis, director of communications for California YIMBY, an advocacy group that sponsored two of the three ADU bills.

The first bill, AB 68, lets homeowners build up to two ADUs on their property by right. That means local governments don’t have the discretion to deny these projects or impose additional conditions on their approval outside of what’s already spelled out in the city’s zoning code.

In addition, the bill restricts the size, setback, and parking requirements local zoning codes can impose on ADUs. It also reduces the time local governments have to approve new units from 120 days to 60 days.

Two other bills, AB 881 (also sponsored by California YIMBY) and SB 13, prohibit local governments from requiring that an owner occupy the new units, and reduce the fees homeowners can be charged to build them.

These provisions helped build political support for the bill among homeowners, says Lewis, who tells Reason that they “see some self-interest in being able to create some rental income for themselves.”

If the state’s past experience with ADU liberalization is any guide, this year’s changes will also lead to a surge in new housing supply.

In 2016, state lawmakers passed legislation that allowed homeowners to build one ADU by right and limited the types of impact and utility fees they could be charged for constructing them.

In response, ADU permit applications in Los Angeles jumped 30-fold after these news laws went into effect, increasing from just 257 in 2016 to 3,818 in 2017. In 2018, a full 20 percent of the permits granted for new housing units in Los Angeles were for ADUs, according to a report from the Sightline Institute, a Seattle-based urban policy think tank.

More cities could be taking advantage of ADUs, but traditional zoning rules often get in the way, says Margaret Morales, a policy analyst at the Sightline Institute. “The biggest ones are often parking requirements. Requiring extra off-street parking can be difficult if you have a small lot and it’s very expensive,” Morales says. The same is true of other standard policies like minimum lot coverage standards and setback requirements which limit the amount of land that can be devoted to backyard cottages or other types of ADUs.

“If cities set those outrageously high,” says Morales, homeowners aren’t able to squeeze new units onto their property.

Following California’s lead, Seattle recently passed new ADU legislation which allows up to two such units per single-family lot, eliminates minimum parking requirements for ADUs, and abolishes the city’s owner-occupancy rules for these granny flats.

On the downside, that same law imposed maximum size limits on new homes.

Morales says that more granny flats are a great way to add new supply in cities with a lot of single, detached family homes. She also cautions that they “are not the silver bullet to solve our housing shortage alone. I think they are part of the multi-prong package we need to consider.”

Nevertheless, the past successes of ADU legislation in places like Los Angeles demonstrate how much new housing can be built when government gets out of the way.

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Did California Just Abolish Single-Family Zoning?

From the passage of statewide rent control to the failure of a bill legalizing more home construction near transit and job centers, it hasn’t been a great year for free market solutions to California’s housing shortage. That is, at least, until you consider the quiet success of efforts to allow for more accessory dwelling units (ADUs).

In the waning days of the 2019 legislative session, state lawmakers passed a series of bills loosening up zoning rules governing ADUs, sometimes known as granny flats or in-law suites. These reforms—which build on legislation passed in 2016—put additional limits on the powers of local governments to regulate ADUs to death, and allow more homeowners to convert their garage or tool shed into affordable rental housing.

“The big news is that we have effectively ended single-family zoning in California,” says Matthew Lewis, director of communications for California YIMBY, an advocacy group that sponsored two of the three ADU bills.

The first bill, AB 68, lets homeowners build up to two ADUs on their property by right. That means local governments don’t have the discretion to deny these projects or impose additional conditions on their approval outside of what’s already spelled out in the city’s zoning code.

In addition, the bill restricts the size, setback, and parking requirements local zoning codes can impose on ADUs. It also reduces the time local governments have to approve new units from 120 days to 60 days.

Two other bills, AB 881 (also sponsored by California YIMBY) and SB 13, prohibit local governments from requiring that an owner occupy the new units, and reduce the fees homeowners can be charged to build them.

These provisions helped build political support for the bill among homeowners, says Lewis, who tells Reason that they “see some self-interest in being able to create some rental income for themselves.”

If the state’s past experience with ADU liberalization is any guide, this year’s changes will also lead to a surge in new housing supply.

In 2016, state lawmakers passed legislation that allowed homeowners to build one ADU by right and limited the types of impact and utility fees they could be charged for constructing them.

In response, ADU permit applications in Los Angeles jumped 30-fold after these news laws went into effect, increasing from just 257 in 2016 to 3,818 in 2017. In 2018, a full 20 percent of the permits granted for new housing units in Los Angeles were for ADUs, according to a report from the Sightline Institute, a Seattle-based urban policy think tank.

More cities could be taking advantage of ADUs, but traditional zoning rules often get in the way, says Margaret Morales, a policy analyst at the Sightline Institute. “The biggest ones are often parking requirements. Requiring extra off-street parking can be difficult if you have a small lot and it’s very expensive,” Morales says. The same is true of other standard policies like minimum lot coverage standards and setback requirements which limit the amount of land that can be devoted to backyard cottages or other types of ADUs.

“If cities set those outrageously high,” says Morales, homeowners aren’t able to squeeze new units onto their property.

Following California’s lead, Seattle recently passed new ADU legislation which allows up to two such units per single-family lot, eliminates minimum parking requirements for ADUs, and abolishes the city’s owner-occupancy rules for these granny flats.

On the downside, that same law imposed maximum size limits on new homes.

Morales says that more granny flats are a great way to add new supply in cities with a lot of single, detached family homes. She also cautions that they “are not the silver bullet to solve our housing shortage alone. I think they are part of the multi-prong package we need to consider.”

Nevertheless, the past successes of ADU legislation in places like Los Angeles demonstrate how much new housing can be built when government gets out of the way.

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