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Australian Complaint With Footnotes At the End |
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Sunday, February 22 2004 @ 09:32 PM EST
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For those who don't like their documents divided up into pages when displayed on the Internet, here is the Australian complaint as one undivided document, with footnotes grouped at the end. Thank you, John.
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Mr Graeme Samuel
Chair
Australian Competition and Consumer Commission
[address, phone, fax]
Dear Chairman
Open Source Victoria Complaint in relation to conduct of SCO Unix
Overview
By a press release dated 20 January 2004 (copy attached) the SCO Group Inc
(SCO) (www.sco.com or
www.thescogroup.com1) announced the availability
of a licence which "permits the use of SCO's intellectual property, in binary
form only, as contained in Linux distributions" (the SCOSource Initiative).
SCO's press release raises a number of issues of concern for Open Source
Victoria (OSV), to the effect that consumers may be mislead by the actions of
SCO or may have been mislead in the past. OSV asks the ACCC to
investigate these concerns.
OSV's concerns
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OSV is concerned that SCO may be doing or may have done one of the
following in trade or commerce:
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making a false or misleading representation concerning the need for
any goods or services in connexion with the supply or possible supply
of goods or services by representing that people who have already
acquired a licence for Linux from SCO are required to acquire an
additional licence;
or, as an alternative to (a)
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made a false or misleading representation concerning the existence,
exclusion or effect of any condition, warranty, guarantee, right or
remedy in that when SCO granted licences over Linux in the past it
wrongly stated the scope of rights granted under the licence (in
particular that binary execution was permitted).
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OSV understands that SCO is currently involved in a dispute over whether or
not it has any copyright entitlements in respect of parts of the code in Linux.
OSV considers that, as this complaint does not involve any representation as to
SCO's copyright holdings, then even assuming these claims are taken at their
highest, they do not have any substantive effect on this complaint.
About Linux
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Linux is an operating system licensed under specific licensing conditions
(known as "the GPL") which are aimed at promoting competition for ancillary
goods and services. Linux represents an emerging market, and one which
unhindered, would grow very rapidly.
This complaint relates to the Linux Kernel only
The heart of Linux is the Linux kernel. This complaint relates only to the
conduct of SCO in relation to the various versions of Linux kernel from
version 2.2. The current version of the Linux kernel is version 2.6.
About the Linux Market and the GPL
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According to SCO:2
"The Linux market is not characterized by some of the traditional barriers to
entry that are found in most other markets, due to the open source nature of
the Linux kernel"
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OSV attributes Linux's rapid growth to the pro competitive licensing terms on
which it is made available, namely the GNU General Public Licence, also
known as the GPL. The GPL requires the disclosure of the source code of the
Linux operating system. SCO describes this by saying that "anyone can freely
download Linux and many Linux applications and modify and re-distribute
them with few restrictions"3. The end result is a highly pro-competitive
market in which competitive differentiation takes place primarily in services
rather than in monopoly control over a key component.
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OSV is concerned by the nature of the representations recently made by SCO,
in that the message to the market is that there will be additional, and
substantive, barriers to competition (ie that SCO may act as a gatekeeper by
refusing to grant a licence) in the market both for Linux and for ancillary
goods and services related to Linux. This removes the key competitive
advantage that Linux vendors have to offer – that their customers are acquiring
from a free market rather than one which is subject to control by a specific
vendor (as is the case for other operating systems).
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The research group IDC in July 2002 predicted that on servers Linux would
have a 35% share of the installed base share by 2006 (at a cumulative annual
growth rate of 21%), with a 7% share of the installed base for desktop systems
by the same time (CAGR 44%).
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As the Linux product has received significant media attention only recently,
and is a product which is licensed on a substantially different basis to similar
products fulfilling the same function, potential acquirers of the product are
especially vulnerable to misleading or deceptive conduct. OSV considers that
the emergent nature of the market also means that any adverse impact SCO's
actions have will be substantially compounded over time.
About SCO Linux/ Caldera
OSV understands that:
SCO Unix (SCO) previously traded under the name of Caldera
International (Caldera) (after 7 May 2001)4;
for several years prior to April 2003 in trade or commerce SCO
distributed various versions of the Linux operating system under names
including "SCO Linux" and "Caldera OpenLinux" (the "SCO
Versions")5;
each of version 2.2 and version 2.4 of the Linux kernel have been
included in at least one of the SCO Versions6
SCO purported to grant licences to the Linux kernel forming part of the
SCO Versions under the terms of the GPL7 over an extended period of
time (see paragraph (b) above);
The terms of SCO's end user licence agreements over the SCO
Versions permit any licensee, subject to some minor qualifications, to8:
- "copy and distribute verbatim copies of the Program's source
code as you receive it, in any medium,…"
- "modify your copy or copies of the Program or any portion of it"
- "copy and distribute the Program (or a work based on it, …) in
object code or executable form" and
- run the program
SCO now represents that licensees require an additional licence from
SCO to use the licensed software in circumstances already permitted by
SCO's previous licences (a "right to use" "in binary form"9 – in other
words, to run the program)10.
OSV also understands that:
SCO claims that when it licensed software under the GPL it didn't
really mean to;11
SCO was aware of the nature of the GPL and the risk of code
(including SCO code) being included in the SCO Versions illicitly;12
SCO was distributing versions of the Linux kernel under the terms of
the GPL as recently as early December 200313
Reasoning
OSV is concerned that SCO is representing that recipients of a SCO Version
are required to acquire an additional licence from SCO. If this is the case, then
either the result of the initial licence grant by SCO was that recipients of the
SCO Versions received the rights SCO said that they would receive (ie the
rights to use and distribute the relevant kernel in accordance with the terms of
the GPL) or they didn't.
If the former is true, then when SCO initially licensed the SCO versions it
made a false or misleading representation as to the effect of rights.
If the latter is true, then a further licence from SCO is unnecessary and SCO's
statement that recipients need a further licence is a false or misleading
representation as to the effect of rights.
OSV notes that the terms of the licence are specifically directed to consumers
who, in addition to using the SCO Versions themselves, are also
contemplating on supplying them to others. It is not an uncommon practice
for acquirers of a Linux kernel to then on supply that kernel to others as part of
a service offering. If SCO repudiates the licences it has granted over the SCO
Versions, both the initial takers, and anyone to whom they have on supplied
the kernel will be affected. Such conduct has the potential to be very
damaging both to consumers and to businesses who may wish to on supply the
kernel of the SCO Versions.
Whether or not SCO realised what it was doing when it granted licences over
the kernel on the terms of the GPL should not be relevant. SCO purported to
grant a licence over the SCO Versions and should not be able to rely on its
own conduct to diminish those licence grants.
Remedies
In the view of OSV, if SCO has previously offered to licence specific versions
(2.2 and 2.4) of the Linux kernel on the terms of the GPL then:
SCO should be required to be held to those licence terms in respect of
existing licensees. Those licences should be declared to be valid and
effective;
where a consumer acquired a copy of the relevant Linux kernels from
SCO prior to the commencement of SCO's SCOSource intitiative, then
that consumer should be entitled to the grant of a licence by SCO on
terms which are of the same effect as the GPL;
any marketing conducted by SCO in relation to its SCOSource
initiative should explicitly state that existing licensees of OpenLinux
and SCOLinux products are not required to acquire any additional
licences and that such existing licences are valid and enforceable
according to their terms;
SCO should correct its existing advertisements and advertise those
corrections;
consideration should be given to the appropriateness of the imposition
of pecuniary penalties.
Con Zymaris
On behalf of the
Open Source Victoria Industry Cluster
[Phone,Fax, Email
www.osv.org.au
- References in this document are given to www.thescogroup.com. At the start of February SCO
removed the domain name www.sco.com from the dns and operated their web site from
www.thescogroup.com. We understand that this is temporary. A number of references are made to
SCO's filings with US regulatory authorities (such as forms 10-K etc). Copies of these forms are
available from the SEC filings section of the investor relations area on SCO's website -
http://ir.sco.com/edgar.cfm.
- SCO (then Caldera International) Form 10-K (ie Annual Report) for year end 31 October 2002 (dated 29 January 2003) at
page 9
- SCO Unix (then Caldera International) Form 10-K (ie Annual Report) for year end 31 October 2002 (dated 29 January 2003) at
page 12
- "On May 7 [2001], Caldera Systems completes the acquisition of SCO's Server Software and Professional Services
Divisions, becoming Caldera International (Caldera) and providing the world's largest Linux/UNIX channel."
http://www.thescogroup.com/company/history.html
"The Company [Caldera International] was originally incorporated as Caldera Systems, Inc. ("Caldera Systems"), a Utah
corporation, on August 21, 1998, and reincorporated as a Delaware corporation on March 6, 2000. In March 2000, Caldera
Systems completed an initial public offering of its common stock." SCO (then Caldera International) Form 10-K (ie Annual
Report) for year end 31 October 2002 (dated 29 January 2003) at page 40
- "Caldera Systems developed and marketed software and provided services related to the development, deployment and
management of Linux-based specialized servers and internet devices. Caldera Systems sold and distributed its software and
related products indirectly through distributors and solutions providers, which included value-added resellers ("VARs"),
original equipment manufacturers ("OEMs"), vertical solution providers ("VSPs") and systems integrators, as well as directly
to end-user customers. These sales occurred throughout the United States and in certain international locations."
SCO (then Caldera International) Form 10-K (ie Annual Report) for year end 31 October 2002 (dated 29 January 2003) at page 40.
Similar statements can be found in SCO's 10-K filing for the year ended 31 October 2000 at page 53.
- " OpenLinux 2.3 is based on the 2.2.10 kernel and includes an improved LIZARD (LInux wiZARD) install with faster autoprobing.",
http://www.thescogroup.com/company/press/19990913ol23.html
"[SCO Linux 4 is] Based on 2.4.19 kernel version" Slide 14, Powell R, (System Engineer, SCO Unix) SCO Group Technical
Overview 24 April 2003 available from:
http://www.dtrbus.com/RC2003/present/SCO%20Technical%20Overview.ppt.
- " Linux packages as selected, arranged and coordinated by Caldera Systems for inclusion in this OpenLinux distribution. GPL
Software is not owned by Caldera Systems. GPL Software is distributed by Caldera Systems to Licensee for use by Licensee. GPL
Software is distributed under the terms of the GNU General Public License, Version 2, June 1991, a copy of which accompanies
this OpenLinux Agreement. The GNU General Public License governs the GPL Software and the copying, distribution and
modification of the GPL Software. GPL Software source code is included in the GPL Software distributed to Licensee consistent
with the requirements of the GNU Public License." OpenLinux Version 2.2 End User License Agreement available from
http://www.thescogroup.com/support/docs/openlinux/2.2/gsg/eula.html
"Hasn't SCO already indicated that it's okay for its code to be distributed by distributing this code itself that is now in
question? Haven't they essentially GPL'd their code?" question 5 of
http://www.thescogroup.com/scosource/linuxqanda.html.
See also: SCO's response to this question and Eblen Moglen's response to their response at section 3 of
http://www.osdl.org/docs/osdl_eben_moglen_position_paper.pdf .
- Attachment: "Copy of GNU General Public License" to SCO's document entitled " OpenLinux Version 2.2 End User License
Agreement" available from
http://www.thescogroup.com/support/docs/openlinux/2.2/gsg/eula.html
- "End user customers who purchase a SCO IP license are granted the right to use SCO intellectual property in binary form as
contained in Linux binary installations on end user systems" http://www.thescogroup.com/scosource/linuxqanda.html
- " 24. If I am running SCO Linux or Caldera OpenLinux do I need to obtain a SCO IP License for Linux? Yes." Item 24 at
http://www.thescogroup.com/scosource/linuxqanda.html
- SCO's explanation is far from clear: "During the period that SCO distributed Linux, SCO was unaware of the copyright
violations. Copyrights cannot be given up by unintentional or illegal inclusion in a GPL product. The owner of the copyrights
must transfer the copyrights in writing, which SCO has never done." – Response to question 5 of
http://www.thescogroup.com/scosource/linuxqanda.html
- "In addition, due to the open source nature of Linux, anyone can freely download Linux and many Linux applications and
modify and re-distribute them with few restrictions. For example, solution providers upon whom we depend for the
distribution of our products could instead create their own Linux solutions to provide to their customers." SCO (then Caldera
International) Form 10-K (ie Annual Report) for year end 31 October 2002 (dated 29 January 2003) at page 12
"We believe that Linux has not yet been widely adopted by businesses due to a number of factors, including: the fragmentation of
Linux offerings; concerns about intellectual property protection for software designed to work with the Linux kernel" ibid at page 4
- "However, as of Monday, December 8, 2003, SCO Group was still distributing the Linux kernel under the terms of the GNU
GPL via their FTP server. (ftp.sco.com OpenLinux%203.1.1%20linux-2.4.13-21S%20src.rpm [5] (FTP))" [OSV
assumes this link refers to version 2.4.13 of the Linux kernel]
http://en.wikipedia.org/wiki/SCO_v._IBM_Linux_lawsuit
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Authored by: freeio on Sunday, February 22 2004 @ 09:39 PM EST |
Does anyone remember Gulliver? The big guy fell to the Lilliputians, because
although small, they were clever, and caught him napping. The international
legal complaints can very easily become just as devestating to TSG, due to their
sheer potential number.
Here we see that essentially, by demanding a fee for a relicense, TSG has made
itself guilty of "inherent vice." The fact of the demand itself is
evidence enough to prove their liability. This course of action followed in
several more countries could be devestating, all by itself.
---
Tux et bona et fortuna est.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, February 22 2004 @ 10:13 PM EST |
OT - SCO UNIX IP License for sale
http://www.thescogroup.com/scosource/howtobuy.html
Anybody else see this? And you thought Microsoft's EULAs were bad... Among
other things, you basicly give up the right to ever claim that SCO doesn't own
what they say they do.
http://www.thescogroup.com/scosource/eula.html
The amazing thing, though, is that while most of the links point to
thescogroup.com, the "click to buy" link points to shop.sco.com. This
is as of 7:00 Pacific on Sunday night (Feb 22). Anybody seeing this?
It's really bizarre. How do you make that mistake? They put this page live
without checking to see if the links worked? Nobody noticed that they linked to
a domain that doesn't exist? Or is there any strategic reason to claim to offer
the license without actually making it available?[ Reply to This | # ]
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Authored by: freeio on Sunday, February 22 2004 @ 10:15 PM EST |
If anyone would like to do a clean and traceable attack upon Caldera/TSG for
this particular GPL/relicense liability, there are still Caldera linux
distribution kits available from several vendors off-the-shelf. This would be
much easier to support and document than a simple download. For Less than US$10
plus shipping, one could have a shrink-wrapped GPL-licensed TSG box to show off
in court, complete with a current receipt to show that TSG received money in
exchange for certain goods and services contained in that shrink-wrap licensed
box. It is rather hard to refute such TSG-produced self-incriminating evidence.
And remember that the US courts have fallen on the side of supporting the
vaildity of shrink-wrap licenses. If TSG GPLed it in that way, they are bound
by it.
Of course, that is all it would be good for, since it is a year or two old now.
Still, this might be an interesting approach.
---
Tux et bona et fortuna est.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, February 22 2004 @ 10:21 PM EST |
<http://www.cptech.org/ms/harm.html>
Quote (from 1999):
The free software movement actively embraces a more open approach to software
development. A distribution of Linux isn't the creation of a single firm. It is
a collection of hundreds of programs developed by different individuals and
groups, that work together. The disclosure of the source code is designed to
make it easier to design software programs that work together, to solve user
problems. There is competition among distributions of Linux, and users can
choose alternative graphical user interfaces, programming tools, utilities and
applications. As described in the so called Halloween memorandums, Microsoft's
response to the popularity of Linux is to seek ways to cripple interoperability,
by deploying proprietary and patented software interfaces. And so far, Microsoft
has resisted efforts by OEMs to ship computers ready to dual boot Windows and
Linux or Windows and BeOS.[ Reply to This | # ]
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Authored by: TimDaly on Sunday, February 22 2004 @ 11:00 PM EST |
Ummm, this can't be the full and complete license text.
Surely SCO would include a clause to indemnify users, right?
They clearly champion the idea. So where is the clause?
Oh, wait, perhaps my intern will find that I have a special
rider hiding in my filing cabinet just like SCO found the
special rider from Novell hiding in theirs.
[ Reply to This | # ]
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Authored by: whoever57 on Sunday, February 22 2004 @ 11:06 PM EST |
I wonder what similarities there might be with the Yoga lawsuit.
--- -----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html [ Reply to This | # ]
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Authored by: Anonymous on Sunday, February 22 2004 @ 11:25 PM EST |
In addition....
SCO may prepare a distribution (containing a Linux kernel and much other
stuff) and release the whole thing under the GPL.
But SCO may NOT take the Linux kernel and the other stuff and release the
whole thing under some *other* non-GPL license.
The Linux kernel, and most of the other stuff (e.g. samba, gcc, ...) is
licensed under the GPL by the authors and copyright holders. If SCO is going to
include those GPL works in their own bundle they *must* use a GPL-compatible
license or they are violating the terms under which the GPL grants them rights
to distribute that stuff.
So they really have no choice at this point: either they distributed their own
stuff under the GPL, or they are guilty of *massive copyright infringement* of
the copyrights of the Linux kernel developers (and all the other GPL software in
SCO's bundles).[ Reply to This | # ]
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Authored by: blacklight on Sunday, February 22 2004 @ 11:42 PM EST |
As our Australian pals are setting the SCO Group's corporate butt on fire even
as we speak, let's remember that every explosion started with a spark.[ Reply to This | # ]
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Authored by: blacklight on Sunday, February 22 2004 @ 11:46 PM EST |
I like the Australian complaint: short, sweet, crystal clear, and logically
bullet-proof.[ Reply to This | # ]
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Authored by: Night Flyer on Monday, February 23 2004 @ 12:06 AM EST |
I went to SCO's Q & A web site:
http://www.thescogroup.com/scosource/linuxqanda.html
Down the page a ways I read #23:
"23. The UNIX System Trademark is the (sic) owned by The Open Group. How
can SCO claim that they own the UNIX System?
The Open Group owns the UNIX trademark, which means they control the use of the
name. SCO owns all rights, title, and ownership to the IP and copyrights,
which means they own the actual code that constitutes the UNIX System."
My Comment:
I read this to mean that SCO is saying that there is absolutely not a single
line of public domain code or third party code in SCO UNIX. And, Novell
claims=nada, BSDi and their UNIX code, either don't exist, or are part of the
SCO IP - (am I babbling?).
If you read further, it becomes clear that SCO wants to have all Linux sold
under its license, without inclusion of source code. I presume they plan to
take on all future development in-house in proprietary code. They want to kill
Linux. Period. I become speechless (which, if you knew me, is of significance).
As never before I now understand the meaning of FUD!!
I then read the SCO EULA. I think I would be signing away the rights to my
first born. The words invasive, intrusive and worse come in triplicate.
In one "swell foop" they are trying to take away all that has been
created in good faith by thousands. I feel dirty, just having read it. (And to
think I was annoyed at M$, their EULA and the activation procedure.)
---------------------------
My Clan Motto: Veritas Vincit: Truth Conquers
[ Reply to This | # ]
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Authored by: maco on Monday, February 23 2004 @ 12:39 AM EST |
It seems to me they are fighting SCO primarily on the fact that SCO distributed
Linux. This is a technicality. I would rather they fight substance. EG,
without having open, demonstratable proof of ownership, it is slanderous to make
such claims.
I think using this technicality takes away from the fundamental
issues. [ Reply to This | # ]
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Authored by: belzecue on Monday, February 23 2004 @ 01:37 AM EST |
2.1.1: "...or services in connexion with..."
should, of course, be "connection".[ Reply to This | # ]
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- Typo - Authored by: belzecue on Monday, February 23 2004 @ 01:44 AM EST
- Typo - Authored by: PJ on Monday, February 23 2004 @ 02:01 AM EST
- Typo - Authored by: Anonymous on Monday, February 23 2004 @ 03:17 AM EST
- Typo - Authored by: belzecue on Monday, February 23 2004 @ 05:01 AM EST
- Typo - Authored by: RLP on Monday, February 23 2004 @ 09:02 AM EST
- Typo - Authored by: alan.hughes on Monday, February 23 2004 @ 10:19 AM EST
- Typo - Authored by: jamesw on Monday, February 23 2004 @ 06:43 AM EST
- Typo - Authored by: Anonymous on Monday, February 23 2004 @ 03:42 AM EST
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Authored by: Anonymous on Monday, February 23 2004 @ 09:39 AM EST |
SCO aren't the only US company to underestimate the determination of Australians
to keep US corporate bullies from exporting their bizzare notions of IP. See
href="http://news.com.au/common/story_page/0,4057,8469637%255E421,00.html">here<
/a>.[ Reply to This | # ]
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Authored by: freeio on Monday, February 23 2004 @ 09:50 AM EST |
Having you lawyer in on it from the start would be the only way to do this, of
course. It would have to be done "just right" to count, and it might
not be valid anyway. Still, it amuses me that one can still buy the retail
Caldera packages anywhere. It is awfully hard to deny that sort of physical
evidence.
Linux Central is a typical source:
http://www.linuxcentral.com/catalog/index.php3?cat[]=dist&subcat=a&id=C1
CISF2ewNvCd
---
Tux et bona et fortuna est.[ Reply to This | # ]
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Authored by: Observer on Monday, February 23 2004 @ 01:14 PM EST |
So basically, what SCO is claining is that they own every Operating System
ever created, including Windows, *BSD, OS/X, JME, and whatever OS the Cray
computer runs, because they all contain features similar to those found in
SysV.
This guy wants Bill to be his love-slave.
--- The
Observer [ Reply to This | # ]
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- (Duh) - Authored by: Observer on Monday, February 23 2004 @ 01:34 PM EST
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