The Law of Intellectual Property : Part 1, Chapter 2, Section 11
(1808 - 1887) ~ Individualist Anarchist and Unitarian Christian Abolitionist : The greatest natural rights thinker of the 19th century was the American lawyer and maverick individualist Lysander Spooner. He responded to the tumultuous events of his era, including the Panic of 1837 and the Civil War, with pamphlets about natural rights, slavery, money, trial by jury and other timely subjects. (From : Jim Powell Bio.)
• "Again, the doctrine that the minority ought to submit to the will of the majority proceeds, not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties..." (From : "Free Political Institutions," by Lysander Spooner.)
• "The doctrine that the majority have a right to rule proceeds upon the principle that minorities have no right in the government; for certainly the minority cannot be said to have any rights in a government so long as the majority alone determine what their rights shall be." (From : "Free Political Institutions," by Lysander Spooner.)
• "There is no particle of truth in the notion that the majority have a right to rule, or exercise arbitrary power over, the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two." (From : "Free Political Institutions," by Lysander Spooner.)
Part 1, Chapter 2, Section 11
It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it.
This objection lays wholly out of consideration the fact, that the idea has been produced by one man's labor, and not by the labor of all men; as if that were a fact of no legal consequence; whereas it is of decisive consequence; else there can be no exclusive right of property, in any of the productions or acquisitions of human labor. If one commodity, the product of one man's labor, can be made free to all mankind, without his consent, then, by the same rule, every other commodity, the product of individual labor, may be made free to all mankind, without the consent of the producers. And this is equivalent to a denial of all individual property whatsoever, in commodities produced or acquired by human labor.
In truth, the objection plainly denies that any exclusive rights of property whatsoever, can be acquired by labor or production; because it says that a man, who produces an idea—(and the same principle would apply equally well to any other commodity)—has no better right of property in it, or of dominion over it, than any and all the rest of mankind. That is, that he has no rights in it at all, by virtue of having produced it; but has only equal rights in it with men who did not produce it. This certainly is equivalent to denying, that any exclusive right of property, can be acquired by labor or production. It is equivalent to asserting, that all our rights, to the use of commodities, depend simply upon the fact that we are men; because it asserts that all men have equal rights to use a particular commodity, no matter who may have been the producer.
This doctrine, therefore, goes fully to the extent of denying all rights of property whatsoever, even in material things (exterior to one's person); because all rights of property in such material things, have their origin in labor; (that is, either in the labor of production, or the labor of taking possession of the products of nature;) not necessarily in the labor of the present possessor; but either in his labor, or the labor of some one from whom he has, mediately or immediately, derived it, by gift, purchase, or inheritance.
The doctrine of the objection, therefore, by denying that any right of property can originate in labor or production, virtually denies all rights of property whatsoever, not merely in ideas, but in all material things, exterior to one's body; because if no rights of property in such things can be derived from labor or production, there can be no rights of property in them at all.
The ground, on which a man is entitled to the products and acquisitions of his labor, is, that otherwise he would lose the benefit of his own labor. He is therefore entitled to hold these products and acquisitions, in order to hold the labor, or the benefit of the labor, he has expended in producing and acquiring them.
The right of property, therefore, originates in the natural right of every man to the benefit of his own labor. If this principle be a sound one, it necessarily follows that every man has a natural right to all the productions and acquisitions of his own labor, be they intellectual or material. If the principle be not a sound one, then it follows, necessarily, that there are no rights of property at all in the productions or acquisitions of human labor.
The principle of the objection, therefore, goes fully and plainly to the destruction of all rights of property whatsoever, in the productions or acquisitions of human labor.
The right of property, then, being destroyed, what principle does the objection offer, as a substitute, by which to regulate the conduct of men, in their possession and use of all those commodities, which are now subjects of property? It substitutes only this, viz.: that men must not come in collision with each other, in the actual possession and use of things.
Now, since this actual possession and use of things, can be exercised, only by men's bringing their bodies in immediate contact with the things to be possessed or used, it follows that the principle laid down, of men's avoiding collision in the possession and use of things, amounts to but this, viz.: that men's bodies are sacred, and must not be jostled; but nothing else is sacred. In other words, men own their bodies; but they own nothing else. Every thing else belongs, of right, as much to one person as to another. And the only way, in which one man can possess or use any thing, in preference to other men, is by keeping his hands constantly upon it, or otherwise interposing his body between it and other men. These are the only grounds, on which he can hold any thing. If he take his hands off a commodity, and also withdraw his body from it, so as to interpose no obstacle to the commodity's being taken possession of by others, they have a right to take possession of it, and hold it against him, by the same process, by which he had before held it against them. This is the legitimate and necessary result of the doctrine of the objection.
On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.
This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.
If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right of exclusive property in the products of one's labor, as it would if applied to material commodities.
It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theaters, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.
On the other hand, if it be acknowledged that a man have an exclusive right of property in the products of his labor, because they are the products of his labor, it clearly makes no difference to this right, whether the commodity he has produced be, in its nature, capable of being possessed and used by a thousand persons at once, or only by one at a time. That is a wholly immaterial matter, so far as his right of property is concerned; because his right of property is derived from his labor in producing the commodity; and not from the nature of the commodity when produced. If there could be any difference in the two cases, his right would be stronger, in the case of a commodity, that could be used by a thousand persons at once, than in the case of a commodity, that could be used only by one person at a time; because a man is entitled to be rewarded for his labor, according to the intrinsic value of its products; and, other things being equal, a commodity, that can be used by many persons at once, is intrinsically more valuable, than a commodity, that can be used only by one person at a time.
Again. The principle of the objection is, that all things should be free to all men, so far as they can be, without men's coming in collision with each other, in the actual possession and use of them; and, consequently, that no one person can have any rightful control over a thing, any longer than he retains it in his actual possession; that he has no right to forbid others to possess and use it, whenever they can do so without personal collision with himself; and that he has no right to demand any equivalent for such possession and use of it by others. From these propositions it would seem to follow further, that for a man to withhold the possession or use of a thing from others, for the purpose of inducing them, or making it necessary for them, to buy it, or rent it, and pay him an equivalent, is an infringement upon their rights.
The principle of property is directly the reverse of this. The principle of property is, that the owner of a thing has absolute dominion over it, whether he have it in actual possession or not, and whether he himself wish to use it or not; that no one has a right to take possession of it, or use it, without his consent; and that he has a perfect right to withhold both the possession and use of it from others, from no other motive than to induce them, or make it necessary for them, to buy it, or rent it, and pay him an equivalent for it, or for its use.
Now it is plain that the question, whether a thing be susceptible of being used by one only, or by more persons, at once, without collision, has nothing to do with the principle of property; nor with the owner's right of dominion over it; nor with his right to forbid others to take possession of it, or use it. If he have a right to forbid one man to take possession of, or use, a certain commodity, he has the same right to forbid a thousand, or the whole world. And if he have a right to forbid a man to take possession of, or use, a commodity, that is susceptible of being possessed and used by one person only at a time, he has the same right to forbid him to take possession of, or use, a commodity, that is susceptible of being possessed and used by a hundred, or a thousand, persons at once. The fact that men would, or would not, come in collision with each other, in their attempts to possess and use a commodity, if he were to surrender his dominion over it, and leave all equally free to possess and use it, is clearly a matter which does not at all concern his present right of dominion over it; nor in any way affect his present right to forbid any and all of them to possess or use it.
It is, therefore, wholly impossible that the circumstance, that one commodity—as a hammer, for example—is in its nature susceptible of being possessed and used by but one person at a time without collision, and that another commodity—as a road, a canal, a railroad car, a ship, a bathing place, a church, a theater, or an idea—is susceptible of being possessed (i. e. occupied), and used by many persons at once without collision, can affect a man's right to have complete dominion over the fruits of his labor. A man's exclusive right of property in—or, in other words, his right of absolute dominion over—any one of these various commodities, depends entirely upon the fact, that such commodity was either a product or acquisition of his own labor, (or of the labor of some one, from whom, either mediately, or immediately, he has derived it, by purchase, gift, or inheritance;) and not at all upon the fact, that such commodity can, or cannot, be possessed and used by more than one person at a time, without collision.
The right of property, or dominion, does not depend, as the objection supposes, upon either the political or moral necessity of men's avoiding collision with each other, in the possession and use of commodities; for if it did, it would be lawful, as has already been shown, for men to seize and use all manner of corporeal commodities, whenever it could be done without coming in personal collision with the persons of other men. But the right of property, or dominion, depends upon the necessity and right of each man's providing for his own subsistence and happiness; and upon the consequent necessity and right of every man's exercising exclusive and absolute dominion over the fruits of his labor.
Now, this right of exercising exclusive and absolute dominion over the fruits of one's labor, is not, as the objection assumes, a mere right of possessing and using them, in peace, and without collision with other men: but it includes also the right of making them subservient to his happiness in every other possible way, (not inconsistent with the equal right of other men, to a like dominion over whatever is theirs,) as well as by possessing and using them.
Now a man may make a commodity subservient to his welfare, in a variety of ways, other than that of himself possessing and using it—provided always his absolute dominion over it be first established. For example, if his absolute dominion over it be first established, so that he can forbid other men to use it, except with his consent, he can then sell it, or rent it, to those who wish to use it, and thus obtain from them, in exchange, other commodities which he desires; or he can confer it, or its use, as a favor, upon some one whose happiness he wishes to promote. But unless he be first secured in his absolute dominion over it, so as to be able to forbid other men using it, except with his consent, he is deprived of all power to make it subservient to his happiness, by selling it, or renting it, in exchange for other commodities; because, if other men can use it without his consent, they will have no motive to buy it, or rent it, paying him any thing valuable in exchange. He cannot even give it, as a favor, to any one, because it is no favor, on his part to give to another a commodity, which that other already has without his consent.
The right of property, therefore, is a right of absolute dominion over a commodity, whether the owner wish to retain it in his own actual possession and use, or not. It is a right to forbid others to use it, without his consent. If it were not so, men could never sell, rent, or give away those commodities, which they do not themselves wish to keep or use; but would lose their right of property in them—that is, their right of dominion over them—the moment they suspended their personal possession and use of them.
It is because a man has this right of absolute dominion over the fruits of his labor, and can forbid other men to use them without his consent, whether he himself retain his actual possession and use of them or not, that nearly all men are engaged in the production of commodities, which they themselves have no use for, and cannot retain any actual possession of, and which they produce solely for purposes of sale, or rent. In fact, there is no article of corporeal property whatever, exterior to one's person, which owners are in the habit of keeping in such actual and constant possession or use, as would be necessary in order to secure it to themselves, if the right of property, originally derived from labor, did not remain in the absence of possession.
But further. The question, whether a particular commodity can be used by two or more persons at once, without collision with each other, is obviously wholly immaterial to that right of absolute dominion, which the producer of the commodity has over it by virtue of his having produced it; and to his consequent right to forbid any and all other men to use it, without his consent.
A man's right of property in the fruits of his labor, is an absolute right of controlling them—so far as the nature of things will admit of it—so as to make them subservient to his welfare in every possible way that he can do it, without obstructing other men in the equally free and absolute control of every thing that is theirs. Now, the nature of things offers no more obstacles, to a man's exclusive proprietorship and control of a commodity, which is, in its nature, capable of being possessed and used by many at once without collision, than it does to his exclusive proprietorship and control of a commodity, which is, in its nature, incapable of being possessed and used by more than one at a time without collision. His right of property, therefore, is just as good, in the case of one commodity, as in the case of the other.
The absurdity of any other doctrine than this is so nearly apparent, as hardly to deserve to be seriously reasoned against. One man produces a commodity—a hammer, for example—which can be used but by one person at a time without collision; and this commodity is his exclusively, because he produced it by his labor. Another man produces another commodity—as a road, a canal, or an idea, for example—which can be used by thousands at once without collision; and this commodity, forsooth, is not his exclusively, although he produced it solely by his own labor! Of what possible consequence is this difference, in the nature of the two commodities, that it should affect the producer's exclusive right of property in either one or the other? Manifestly it is not of the least conceivable importance.
As a matter of abstract natural justice, there is no difference whatever, in a man's demanding and receiving pay for a commodity, or the use of a commodity, which can be used by thousands at once without collision, and his demanding and receiving pay for a commodity, or the use of a commodity, which can be used by but one person a time. In the first case, he as much gives an equivalent for what he receives, as he does in the latter; an equivalent too, that is as purely a product of labor, as is the commodity he receives in exchange.
As a matter of abstract natural justice too, a man is as much entitled to be paid for his labor in producing commodities, that can be used by many persons at once without collision, as he is to be paid for producing commodities, that can be used by but one person at a time. For example, one man produces an idea, which is worth, for use, a dollar to each one of a thousand different men. Another man produces a thousand axes, worth a dollar each for the use of a thousand different men. Is there any difference in the intrinsic merit or value of the labor of these two producers? Or is there any difference, in their abstract right to demand pay of those who use the products of their labor? Is not the producer of the idea as honestly entitled to demand a thousand dollars for the use of his single idea, as the other is to demand a thousand dollars for his thousand axes? The producer of the idea supplies a thousand different men with as valuable a tool to work with, as does the producer of the axes. Why, then, is he not entitled to demand the same price for his ideas, as the other does for his axes? Does the fact that, in the one case, a thousand different men use the same commodity, (the idea,) and that, in the other, a thousand different men use a thousand different commodities, (axes,) all of one kind, make the least difference in the merits of the respective producers? Other things being equal, is not one single commodity, that can be used by a thousand men at once without collision, just as valuable, for all practical purposes, as a thousand other commodities, that can each be used only by one person at a time? Are not a thousand men as effectually supplied with the commodity they want, in the first case, as in the latter? Certainly they are. Why, then, should they not pay as much for it? And why should not the producer receive as much in the first case, as in the last? No reason whatever, in equity, can be assigned.
If there be no difference in the justice of these two cases, is there any way, in which the producer of the idea can get his thousand dollars for it, other than that, by which the producer of the axes gets his thousand dollars for them, to wit, by first securing to him his absolute dominion over it, or absolute property in it, and thus enabling him to forbid others to use it except on the condition of their paying him his price for it? If there be no other way, by which he can get pay for his idea, then he is as well entitled to an absolute property in it, and dominion over it, as the producer of the axes is entitled to an absolute property in, or dominion over, them.
Still further. A thousand separate individuals, can as well afford to pay a thousand dollars, (one dollar each,) for the use of a single commodity, that can be used by them all at once without collision, as they can to pay a thousand dollars, (one dollar each,) for the use of a thousand different commodities, each of which can be used only by one person at a time. A man can just as well afford to pay a dollar for an idea, that is worth a dollar to him, for use, though it be used also by others, as he can to pay a dollar for an ax, that is worth but a dollar to him for use, though it be not used by others. Its being used by others, or not, makes no difference at all in his capacity to pay for whatever value it is really of to himself.
A thousand different men can also as well afford to pay a dollar each, for the use of a commodity, which they can all use at once without collision, as they can to pay a dollar each for the use of a single commodity, which can be used only by one person at a time, and which can therefore be used by them all, only by their using it singly, successively, and at different times. For example. A thousand men can as well afford to pay a thousand dollars, (one dollar each,) for the use of a vessel, which will carry them all at once, as they can to pay a thousand dollars, (one dollar each,) for the use of a boat so small as to carry but one person at a time, and which must therefore make a thousand different trips to carry them all. How absurd it would be to say that the owner of the large boat had no right to charge a dollar each for his thousand passengers, merely because his vessel was so large that it could carry them all at once, without collision with each other, or with himself; and yet that the owner of the small boat had a right to charge a dollar each, to a thousand successive passengers, merely because his boat was so small that it could carry but one at a time.
The same principle clearly applies to an idea. Because it can be used by thousands and millions at a time, without collision, it is none the less the exclusive-property of the producer; and he has none the less right to charge pay for the use of it, than if it could be used by but one person at a time.
There is, therefore, no ground whatever, of justice or reason, on which the producer of the idea can be denied the right to demand pay for it, according to its market value, any more than the producer of any other commodity can be denied the right to demand pay for it, according to its market value. And the market value of every commodity is that price, which men will pay for it, rather than not have it, when it is forbidden to them by one who has an absolute property in it, and dominion over it.
The objection, now under consideration, is based solely upon the absurd idea, that the producer of a commodity has no right of property in it, nor of dominion over it, beyond the simple right of using it himself without molestation; that he has therefore no right to forbid others to use it, whenever they can get possession of and use it, without collision with himself; that he must depend solely upon his own use of it to get compensated for his labor in producing it; that he can never be entitled to demand or receive any compensation whatever from others, for the use of it, or for his labor in producing it, however much they may use it, or enrich themselves by so doing; and that he therefore has no right to withhold its use from others, with any view to induce or compel them to buy it, or rent it, or make him any compensation for the labor it cost him to produce it. In short, the principle of the objection is, that when a man has produced a commodity by his own sole labor, he has no right of dominion over it whatever, except the naked right to use it; and that all other men have a perfect right to use it, without his consent, and without rendering him any compensation, whenever he is not using it, or whenever the nature of the thing is such as to enable both-him and them to use it at the same time, without collision.
The objection clearly goes to this extent, because the whole principle of it consists in this single idea, viz.: that men must avoid collision with each other in the possession and use of commodities.
This principle would not allow the producer so much even as a preference over other men, in the possession and use of a commodity, unless he preserved his first actual possession unbroken. To illustrate. If, when he was not using it, he should let go his hold of it, and thus suffer another to get possession of it, he could not reclaim it, even when he should want it for actual use. To allow him thus to demand it of another, for actual use, on the ground that he was the producer of it, would be acknowledging that labor and production did give him at least some rights to it over other men. And if it be once conceded, that labor and production do give him any rights to it, over other men, then it must be conceded, that they give him all rights to it, over other men; for if he have any rights to it, over other men, then no limit can be fixed to his rights, and they are of necessity absolute. And these absolute rights to it, as against all other men, are what constitute the right of exclusive property and dominion. So that there is no middle ground between the principle, that labor and production give the producer no rights at all, over other men, in the commodity he produces; and the principle, that they give him absolute rights over all other men, to wit, the right of exclusive property or dominion. There is, therefore, no middle ground between absolute communism, on the one hand, which holds that a man has a right to lay his hands on any thing, which has no other man's hands upon it, no matter who may have been the producer; and the principle of individual property, on the other hand, which says that each man has an absolute dominion, as against all other men, over the products and acquisitions of his own labor, whether he retain them in his actual possession, or not.
Finally. The objection we have now been considering, seems to have had its origin in some loose notion or other, that the works of man should be, like certain works of nature—as the ocean, the atmosphere, and the light, for example—free to be used by all, so far as they can be used by all without collision.
There is no analogy between the two cases. The ocean, the atmosphere, and the light, so far as they are free to all mankind, are free simply because the author of nature, their maker and owner, is not, like man, dependent upon the products of his labor for his subsistence and happiness; he therefore offers them freely to all mankind; neither asking nor needing any compensation for the use of them, nor for his labor in creating them. But if the ocean, the atmosphere, and the light had been the productions of men—of beings dependent upon their labor for the means of subsistence and happiness—the producers would have had absolute dominion over them, to make them subservient to their happiness; and would have had a right to forbid other men either to use them at all, or use them only on the condition of paying for the use of them. And it would have been no answer to this argument, to say, that mankind at large could use these commodities, without coming in collision with the owners; that there were enough for all; and that therefore they should be free to all. The answer to such an argument would be, that those, who had created these commodities, had the natural right to supreme dominion over them, as products of their labor; that they had a right to make them subservient to their own happiness in every possible way, not inconsistent with the equal right of other men, to a like dominion over whatever was theirs; that they could get no adequate compensation for their labor in creating them, unless they could control them, forbid other men to use them, and thus induce, or make it necessary for, other men to pay for the use of them; that they had created them principally, if not solely, for the purpose of selling or renting them to others, and not merely for their own use; and that to allow others to use them freely, and against the will of the owners, on the simple condition of avoiding personal collision with them, would be virtually robbing the owners of their property, and depriving them of the benefits of their labor, and of their right to get paid for it, by demanding pay of all who used its products for their own benefit. This would have been the legal answer; and it would have been all-sufficient to justify the owners of these commodities, in forbidding other men to use them, except with their consent, and on paying such toll or rent as they saw fit to demand.
The principle is the same in the case of an idea. An idea, produced by one man, is enough for the use of all mankind (for the purposes for which it is to be used). It is as sufficient for the actual use of all mankind, as for the actual use of the producer. It may be used by all mankind at once, without collision with each other. But all that is no argument against the right of the producer to absolute dominion over an idea, which he has produced by his own labor; nor, consequently, is it any argument against his right to forbid any and all other men to use that idea, except on the condition of first obtaining his consent, by paying him such price for the use of it as he demands.
But for this principle, the builders of roads and canals, which may be passed over by thousands of persons at once, without collision, could maintain no control over them, nor get any pay for their labor in constructing them, otherwise than by simply passing over them themselves. Every other person would be free to pass over them, without the consent of the owners, and without paying any equivalent for the use of them, provided only they did not come in personal collision with the owners, or each other.
Do those, who say that an idea should be free to all who can use it, without collision with the producer, say that the builders of roads and canals have no rights of property in them, nor any right of dominion over them, except the simple right of themselves passing over them unmolested? That they have no right to forbid others to pass over them, without first purchasing their (the owners') consent, by the payment of toll, or otherwise? No one, who acknowledges the right of property at all, will say this. Yet, to be consistent, he should say it.
But the analogy, which the objector would draw, between the works of nature and the works of man, in order to prove that the latter should be as free to all mankind as the former, is defective, not only in disregarding the essential difference between the works of man and the works of nature, to wit, that the former are produced by a being who labors for himself, and not for others; and who needs the fruits of his labor as a means of subsistence and happiness; while the latter are produced by a Being, who neither needs nor asks any compensation for his labor; but it is defective in still another particular, to wit, that it disregards the fact, that the works of nature themselves are no longer free to all mankind, after they have once been taken possession of by an individual. It is not necessary that he should retain his actual possession of them, in order to retain his right of property in them, and his right of dominion over them; but it is sufficient that he has once taken possession of them. They are then forever his against all the world, unless he consent to part, not merely with his possession, but with his right of property, or dominion, also. They are his, on the principle, and for the reason, that otherwise he would lose the labor he had expended in taking possession of them. Even this labor, however slight it may be, in proportion to the value of the commodity, is sufficient to give him an absolute title to the commodity, against all the world. And he may then part with his possession of it at pleasure, without at all impairing his right of dominion over it.
If, then, a man's labor, in simply taking possession of those works of nature, which no man had produced, and which were therefore free to all mankind, be sufficient to give him such an absolute dominion over them, against all the world; who can pretend that his labor, in actually creating commodities—as ideas, for example—which before had no existence, does not give him at least an equal, if not a superior, right to an absolute dominion over them?
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