The International Law Scholarship of Samuel Clemens

Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.


Ursula K. Le Guin and the Tragedy of the Copyright Commons

Via TechDirt, Ursula K. Le Guin has resigned from the Authors Guild in protest of their decision to no longer categorically oppose settlement with Google. The Authors Guild was an original plaintiff in the massive class action suit against Google’s book scanning project, and is now negotiating a controversial settlement agreement.

I was sad to see her take such a stance. I was never a die-hard Le Guin fan, but I have very fond memories of checking Wizard of Earthsea out for the first time from my middle school library. Her science fiction is great too, and she is undoubtedly an icon of the genre; I love the fact that, forty years after she invented the ansible, other authors still use the devices in their books, even borrowing the same technological constraints that Le Guin used, as if ansibles were somehow a common heritage of all scifi universes.

That always struck me as a small but delightful example of the benefits provided by a robust intellectual commons — that there can be such spontaneous collaborations between authors, many years apart, and that we can create these common cultural reference points. After all, Sherlock Holmes’ popularity today is not due to the fact that Sir Arthur Conan Doyle was the only one person who ever got to say what happened to him.

But some authors — or their heirs — try to claim that no morsel of their work rightfully belongs to the commons, and that their ideas should die with them. Recently, Philip K. Dick’s daughter threatened to sue Google for naming their phone Nexus One, in a subtle reference to the Nexus-6 replicants, which were a sixth generation model of androids in Do Androids Dream of Electric Sheep. I find it indescribably sad that someone should try to claim a copyright to geek cultural heritage.

As the creator of the ansible, Ursula K. Le Guin could, under her view copyright, prohibit other authors from using ansibles in their works, or else sue those authors who do reference them. I do not think anyone could argue that the world would be better off if authors could exercise such a monopoly over their ideas. But what Le Guin advocates would permit authors to do so.

In her resignation from the Authors Guild, she wrote:

You decided to deal with the devil, as it were, and have presented your arguments for doing so. I wish I could accept them. I can’t. There are principles involved, above all the whole concept of copyright; and these you have seen fit to abandon to a corporation, on their terms, without a struggle.

What “principles” are involved, in Le Guin’s view? The principle that authors are entitled to recoup all the welfare benefits from their work, into perpetuity? Because that principle has never been listed under the heading of “concept of copyright.” (You might be able to find it under “shameless rent-seeking,” though.)

The Authors Guild’s reply to Le Guin’s resignation has a quote that should be underlined, over and over again:

The lessons of recent history are clear: when digital and online technologies meet traditional media, traditional media generally wind up gutted. Constructive engagement — in this case turning Google’s infringement to our advantage — is sometimes the only realistic solution.

Admittedly, for most industries, it seems that “constructive engagement” has meant lobbying the legislature (or in the Google Books case, the judiciary) for restrictive laws that give creators ridiculous rights that copyright was never intended to protect. Even still, engaging in the opportunities that change provides is always a better response than claiming an entitlement to continue living in The World As It Used To Be.

I do have some pretty huge objections to the Google settlement (who doesn’t?), but they are the same objections the DOJ has, i.e., “class action, copyright and antitrust law[.]” (Okay fine, my personal objections include just those last two. Although if I had any modicum interest in class action suits, I’m sure I’d be very concerned about that first one as well.)

Le Guin’s objections to the Google settlement, however, are not about the creation of an unjustified monopoly power, but rather that she is not going to be the beneficiary of one.


The Economic Agendas of Sci-Fi and Fantasy Authors, Vol. 3: The Economic Apathy of J.R.R. Tolkien, the Anarchic Anti-Industrialist

This is volume three of a very-infrequently-updated series. In previous posts on this blog, I discussed the more blatant economic agendas of fantasy and scifi authors Jack London and Terry Goodkind, as well as discussed the function of economics in other speculative fiction books in posts here, here, and here.

Finding evidence of economic systems in scifi and fantasy books is not hard. The use of economics in speculative fiction is not always blatant, of course, and more often than not it is used for world-building rather than to promote an author’s economic view point. But when envisioning their futuristic societies or when creating fantasy worlds, the vast majority of authors do incorporate some form of economic structure.

There is one glaring exception to this rule: J.R.R. Tolkien.

Because economic systems do not exist in Middle Earth.

Tolkien was — beyond all doubt — a god among world builders. But Middle Earth’s intricate mythology was simply that. A mythology. His world was not a functioning, messy, organic society, but a symbolic realm. In many ways, his detailed accounts of the history of Middle Earth are the equivalent of the Bible: the begatting of generations and the successions of kings are all accounted for in exquisite detail, but any accounts of the day-to-day life of Middle Earth’s inhabitants are left skeletal and superficial.

If you doubt that, consider the following questions: Did Gondor tax its citizens, and if not, how did it get its massive armies? Were there lawyers and judges in Rohan? Who wrote the laws in Bree? Did any race or kingdom have schools or systems of higher learning? Was there a mercantile class? Were there trade guilds at all, or tariffs, or monopolies? Could Dwarves or Hobbits or Elves freely choose their careers — and if so, were there career options beyond “farmer,” “miner,” “innkeeper,” and “soldier”? What sovereign minted the coins that occasionally appear in the books? Did people earn wages or were they paid stipends by feudal lords? Why is there no evidence of trade in Middle Earth in situations where in a real world we should expect to see some? What political and economic motives could Sauron’s human allies possibly have? How were the Rangers of the North, such as Strider, funded? For that matter, how was Gandalf funded — surely he needed some sort access to resources to accomplish all his doings? And perhaps most perplexingly, why do women, of all the races, appear to be on the verge of extinction?

No answers. (Well, unless of course the answers happen to be in The Silmarillion, I certainly am not about to read that one to find out.)

That last question should be a particular tip off, though. How can you know a civilization in any level of detail when fully one half of its citizens are essentially unmentioned?

Tolkien’s apathy towards the economy and social infrastructure of Middle Earth was by no means the result of simple oversight. It was a deliberate attempt to construct a world that conformed to his views of the human condition. Tolkien did not believe that human societies required regulation in order to function — and so Middle Earth went unregulated. In referring to his own views, Tolkien stated that,

My political opinions lean more and more to Anarchy (philosophically understood, meaning abolition of control not whiskered men with bombs) – or to ‘unconstitutional’ Monarchy. I would arrest anyone who uses the word State (in any sense other than the inanimate realm of England and its inhabitants, a thing that has neither power, rights nor mind).

When creating Middle Earth, it is apparent that Tolkien had, shall we say, an eye for detail, and it would be an insult to suggest he simply forgot to factor in economics and politics. As Tolkien wrote in a letter describing the hobbits’ arrival in Bree at the Prancing Pony Inn:

The landlord does not ask Frodo to ‘register’! Why should he? There are no police and no government … If details are to be added to an already crowded picture, they should at least fit the world described. (Tolkien, letter #210).

And the world described in the Lord of the Rings is one where economics does not exist.

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“Thou shalt not sit/With statisticians nor commit/A social science.”

W.H. Auden is probably my favorite poet, and the only poet I’ve read enough of that I feel like I could discuss seriously without feeling like a giant fraud. His poem “Law Like Love” is undoubtedly the best known among lawyers, for obvious reasons, and from a quick search, the poem seems to have been quoted in law review articles over 40 times. It says something about Auden that his other works are also quoted relatively often in legal academia, a community that, in general, does not pay all that much attention to poetry.

Auden’s appeal, for me, is that he embodies some strange brand of cynically ironic libertarianism. How else would you describe a line like “To be free/is often to be lonely”? Still, his libertarian streaks are often overlooked, as Auden is better known for his dabblings in Marxism. Two of his most famous poems were, technically, communist propaganda, but his later repudiation of them is telling. The poems were removed from his later collections for being “dishonest,” and, as Auden described it, “A dishonest poem is one which expresses, no matter how well, feelings or beliefs which its author never felt or entertained.”

Auden’s communism was not based in some economic theory, or in any desire for the state to control the machinery of civilization. In Auden’s view, communism’s appeal was that it provided a path to freedom from the oppressive coercion of the State. As he wrote in his poem “New Year Letter,”

“Who has ever met a poet (at least one who has had any success) for whom the real attraction of Communism did not lie in its premise that, under it, the state should wither away for others as it has already withered away for him?”

I’m pretty sure the idea of Auden-as-a-libertarian is not exactly widespread, but under the brand of textualist interpretation that Auden endorsed, I don’t think it’s an unfair characterization. His communism was motivated by much the same impulses that motivate libertarian ideology today, and he was unquestionably anti-totalitarian and pro-individual. His poem the “The Unknown Citizen” is my favorite of his commentary on the state verses the individual, and I wanted to share it here below. I always feel like it should be read alongside Epitath on a Tyrant, so go check that one out as well, it’s short.

As a side note, to carry on with my quest to show how every topic is, in some way, connected to international law, I’ll also mention that Auden translated the work of Dag Hammarskjöld, the second Secretary-General to the United Nations.

The Unknown Citizen

(To JS/07 M 378
This Marble Monument
Is Erected by the State)

He was found by the Bureau of Statistics to be
One against whom there was no official complaint,
And all the reports on his conduct agree
That, in the modern sense of an old-fashioned word, he was a saint,
For in everything he did he served the Greater Community.
Except for the War till the day he retired
He worked in a factory and never got fired,
But satisfied his employers, Fudge Motors Inc.
Yet he wasn’t a scab or odd in his views,
For his Union reports that he paid his dues,
(Our report on his Union shows it was sound)
And our Social Psychology workers found
That he was popular with his mates and liked a drink.
The Press are convinced that he bought a paper every day
And that his reactions to advertisements were normal in every way.
Policies taken out in his name prove that he was fully insured,
And his Health-card shows he was once in hospital but left it cured.
Both Producers Research and High-Grade Living declare
He was fully sensible to the advantages of the Instalment Plan
And had everything necessary to the Modern Man,
A phonograph, a radio, a car and a frigidaire.
Our researchers into Public Opinion are content
That he held the proper opinions for the time of year;
When there was peace, he was for peace: when there was war, he went.
He was married and added five children to the population,
Which our Eugenist says was the right number for a parent of his generation.
And our teachers report that he never interfered with their education.
Was he free? Was he happy? The question is absurd:
Had anything been wrong, we should certainly have heard.

W.H. Auden (1939)


Under Copyright Law’s Fedora: Paul Zukofsky’s Copyright Notice as Critical Commentary

Paul Zukofsky, the son of poets Louis and Celia Zukofsky, has published an amazing Copyright Notice, in which he threatens to bring down a storm of litigation on anyone who dares to quote his parents without paying him the required fee. Describing his letter as “an obvious ‘do not trespass’ sign,” he says:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of ‘fair use’. ‘Fair use’ is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

PZ may “expect [his] views to be respected,” but his expectations are not exactly the sort that are legally protected. Essentially, PZ is making a threat that either you do not use the work or pay him if you do, or else he will pursue you with vicious, expensive litigation that, while is unlikely to succeed on the merits, will bankrupt any grad student long before the merits could be reached.

This not an idle threat. Glancing around, I found a few examples of where scholarly commentary on Louis Zukofsky has been removed due to legally dubious copyright infringement claims made by PZ. He seems intent on making good on the threat contained in his Copyright Notice:

“In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth.”

Despite P. Zukofsky’s assertions that his motivations are “almost purely economic,” and that he is merely protecting his financial interest when he “insist[s] on deriving income from that property,” I suspect money is not the true issue. First, it is quite obvious that the stance PZ is taking will lead to less income from the copyrights he now holds. By forbidding any substantive commentary on his parents, he is ensuring that their works will rush prematurely headlong into a grave of literary obscurity — as with no one talking about their poetry or discussing their works, there are no new potential fans to become intrigued enough to purchase a copy of the Zukofskys’ works for their own.

But second, and more importantly, the “Copyright Notice” is not at all some dry and dour admonishment, written in legalese, as you would expect with a true peremptory cease & desist notice, but rather it is a self-aware “irascible [and] recalcitrant” rant. It reveals too much about the author himself, such as his apparent daddy issues, (“I hardly give a damn what is said about my father (I am far more protective of my mother)”), to not have been intended as a form of literary speech in itself, separate from any legal warning it may also convey. This becomes most obvious in the following paragraph from the Notice, in which PZ mocks the uselessness of grad students and their dissertations on poetry:

I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it. I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity. Your self-interest(s) I may understand, perhaps even agree with; but beyond that, in the words of e.e.cummings quoting Olaf: “there is some s[hit] I will not eat”.

e.e.cummings is, of course, still under copyright, and by all indications, PZ is not nearly so dense as to be oblivious to the irony of quoting another poet, in a diatribe about how no one should ever quote the Zukofskys. The use of the copyrighted quotation was almost certainly a deliberate act by PZ. Moreover, Louis Zukofsky himself wrote many volumes of critical commentary– the “so-called profession” PZ refers to with scorn is his father’s own profession — and many of the copyrights that PZ is trying to protect are themselves volumes of poetry criticism. So I do not believe that PZ could have been less than fully aware that his actions are an abuse of copyright, and contrary to his own father’s feelings on poetry.

Instead, PZ’s Copyright Notice is itself a form of literary criticism, a piece of scholarship about the Zukofskys’ works — albeit one that is, unfortunately, backed with the color of law.

Paul Zukofsky is brilliant and accomplished in his own right, and I actually cannot find it in me to condemn his instinct to protect and control the literary works of his parents. It is the asinine structure of our copyright laws that is to blame, for giving PZ the power to wield the American legal system against scholarship he dislikes, and to shut down any criticisms or homages of his parents that he disagrees with. Copyright’s only true purpose is to provide incentives for future creators — instead, perversely, under our laws today, copyright’s purpose has become to serve whatever whims the copyright holder might have, even if that whim is to have a poet’s work never be discussed again.


p.s. If you want to at least listen to P. Zukofsky’s works, a bunch are available online here.

p.p.s.: Or read LZ’s Poetry/For My Son When He Can Read. The closing paragraph takes on a new meaning in light of Paul Zukofsky’s attempts to prevent others from finding new meaning in LZ’s own poetry:

“Writing this Paul, for a time when you can read, I do not presume that you will read ‘me.’ That ‘me’ will be lost today when he says good night on your third birthday, and not missed tomorrow when he says good morning as you begin your fourth year. It took all human time to nurse those greetings. And how else can the poet speak them but as a poet.”

The Economic Agendas of Sci-Fi and Fantasy Authors, Vol. 2 — Terry Goodkind

conanlibertarianTerry Goodkind

I realized that there is one author, at least, who I am totally competent to critique even without the benefits of having his books before me: Terry Goodkind. That’s because you don’t actually need to read The Sword of Truth series to understand what they’re about, you can just go type “libertarian porn” into google and you will probably get the same experience.

Okay, they’re not quite that bad. After all, I did read all of them, and at ~800 pages a pop times 11 novels, that’s 8,800 pages I bothered to get through. Admittedly, that was over the course of 12 years, beginning in seventh grade when I first picked them up because I got bored waiting for Robert Jordan to crank out his next book, and finally ending this past summer when I was studying for the bar, and therefore procrastinating with a Terry Goodkind novel was marginally less frustrating than the BarBri books I was actually supposed to be reading.

But in between the decent chunks of sword-and-sorcery fantasy in The Sword of Truth, Terry Goodkind seizes every possible opportunity to turn his characters into hoarse mouthpieces for the Libertarian War Against Communism. It’s kind of funny, the first dozen times it happens. And then it starts getting annoying, when you find yourself wondering if the speeches were simply copied and pasted from a speech that same character gave two books ago. And then finally by about book 6 or so, every time you see a character launch into a major speech, you just skip ahead six or seven pages until you find where the quote marks stop and everyone goes back to stabbing bad guys.

A rough synopsis of the series [SPOILER ALERT] is that Hank Roark Richard Cypher, a simple woods guide, is actually the leader of the D’Haran Empire, and the beautiful Dagn- Domini- Kahlan has been sent to fetch him. After securing his title as Supreme Commander of the Old World, he then must fight the rampaging horde of liberal democrats in the New World that wish to destroy individualism and promote the idea of from each according to his ability, to each according to his need.

Anyway, they all live in a world where it is possible to conquer the forces of evil simply by demonstrating to them your noble, liberty-loving spirit and your adamant refusal to live your life for another.

Read More: In Libertarian Land, you can always tell which women love freedom the most. It’s the hot ones »

The Economic Agendas of Sci-Fi and Fantasy Authors, Vol. 1 — Jack London

Note: I wanted to write a series of posts about the economic and political beliefs found in the science fiction and fantasy novels of China Meiville, Isaac Asimov, Terry Goodkind, Robert Heinlein, and a few others, but I found I was having a hard time doing it purely from memory. Unfortunately, most my books are back home in Atlanta, and Jack London was the only author outside of copyright protection and thus the only one whose works I could find online. So Jack London is first. For the rest, I’ll either settle for writing posts from memory, or wait until I’m back home for Thanksgiving to pick up the books. (Actually, Cory Doctorow will probably be next — thanks to the fact he’s happy to give up on restrictive copyright protections, his work is out there for free too.)

Jack London:

Although most famous for his Alaskan wilderness fiction, Jack London also wrote a fair collection of science fiction short stories and four scifi novels. I grew up on Call of the Wild and White Fang, and obsessed over his  short stories (it’s a good thing I didn’t end up naming my first dog Bâtard!), but it wasn’t until much later that I started paying attention to his non-wolfdog-based fiction.

And so I never realized as a kid that Jack London was very much a socialist. And not the fluffy kind, either. In his resignation from the socialist party, he wrote:

I am resigning from the Socialist Party, because of its lack of fire and fight, and its loss of emphasis upon the class struggle. I was originally a member of the old revolutionary up-on-its-hind legs, a fighting, Socialist Labor Party. Trained in the class struggle, as taught and practised by the Socialist Labor Party, my own highest judgment concurring, I believed that the working class, by fighting, by fusing, by never making terms with the enemy, could emancipate itself.

Since the whole trend of Socialism in the United States during recent years has been one of peaceableness and compromise, I find that my mind refuses further sanction of my remaining a party member. Hence, my resignation.

These views very much influenced his fiction. And although London is beyond a doubt one of my favorite authors of all time, my love for his stories is often tempered with uneasiness with the themes they are promoting.

Far less forgivable than his socialist views is his embracing of Social Darwinism and Rudyard Kipling-style racial paternalism.  (I’m being charitable here; at times, his racism was much more severe than that, and he was not opposed to eugenics.) His opinion of women was little better, and in London’s fiction, females are often very much fungible goods. If you lose one, just find another — or better yet, steal it. The number of instances of wife-stealing in his stories is staggering.  His tepid support for women’s rights was not based upon any belief in their equivalency to men, but rather as a way to bring about an end to alcohol. In John Barleycorn, the memoir opens with London announcing that he voted for women’s suffrage — not because he agrees particularly with the idea that women should vote,  but rather because “[w]hen the women get the ballot, they will vote for prohibition[.]”

But because discussing economics is more fun than detailing the moral failings of a historical figure I still have respect for, I’m going to ignore his social views and instead focus instead on two of his speculative fiction short stories with communist themes: Goliah and Strength of the Strong.

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