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Bethesda getting sued for Fallout 4 Creation Club

Discussion in 'Bethesda Game Studios' started by EtcEtcEtc, Feb 24, 2021.

  1. EtcEtcEtc Learned

    EtcEtcEtc
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    https://venturebeat.com/2021/02/23/...er-fallout-4-dlc-as-microsoft-takeover-looms/
    ------

    Long and short of it: Bethesda said "Hey buy our season pass and get all our DLC!"

    This kid bought it.

    When the Creation Club came out he tried to download it. Couldn't. Sued. Said it should be part of the Season Pass.

    ------

    Apparently according to a lawyer not involved with the case but looking in for the article, Bethesda done fucked up on a lot of legal ass covering. They didn't specify when the pass ended, what was in the pass, etc. They are arguing that DLC isn't the same as CC content even though they have labeled it as Micro DLC before, and marketed it that way.

    I'm normally inclined to look down on any bullshit litigation, which this smells like to me - I mean for gods sake, dude is suing because he can't get shitty creation club content - however the article as lays the case out DOES make perfect sense. IT IS basically DLC and Bethesda DID promise their season pass would provide all DLC, then they decided they want to fleece people more with Creation Club bullshit. It's a stupid and inconsequential thing to sue for, but still.

    Also there's some speculation on this effecting the Microsoft sale.
     
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  2. Ghulgothas Erudite

    Ghulgothas
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    Not likely to result in anything, consumer litigation like this never results in anything. But Bethesda defining the marketing and sale of mods as DLC through their errors and litigious shitfits will never not be mildly funny.

    And disappointing.
     
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  3. HeyCheckOutHowHardICanPee Learned

    HeyCheckOutHowHardICanPee
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    To call this a perfect case would be an understatement, I'm betting on Microsoft just settling on the demanded price and it not even being taken to an actual court session.
     
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  4. anvi Cipher Village Idiot

    anvi
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    Haa haa!
     
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  5. Morpheus Kitami Learned

    Morpheus Kitami
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    The only thing this will result in is that future EULAs for Season Passes will contain more words than Moby Dick.
     
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  6. rusty_shackleford Arcane

    rusty_shackleford
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    In US courts EULAs are basically toilet paper used for intimidation tactics -- most of them are adhesion contracts, especially so if you're not presented with the EULA until after you've already obtained the software. See e.g., Bragg v. Linden Lab where the Second Life EULA was tossed out because it was biased towards Linden Labs(Second Life's developer)

    And yes, the people who bought this were clearly screwed over. They tried to sell DLC as not-really-DLC to get around their obligations.
    If that's their argument then they should get ready to settle.
    Show Spoiler
    [​IMG]

    :M
     
    Last edited: Feb 25, 2021
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  7. moon knight Matt7895's alt

    moon knight
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    :gumpyhead::hearnoevil:
     
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  8. cruelio Savant

    cruelio
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    This was an unfortunate way to find out Microsoft is buying Bethesda. Did they wake up one day and realize some stupid intern accidentally bought Obsidian and inXile and were like fuck it, lets go all in and corner the garbage AAA crpg market?
     
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  9. Trojan_generic Magister

    Trojan_generic
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    They thought the Season pass is just a trendy name, just like GOTY edition.
     
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  10. anvi Cipher Village Idiot

    anvi
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    I am person of the year.
     
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  11. Delicieuxz Augur

    Delicieuxz
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    Bethesda's advertising about it is pretty unambiguous:

    “To reward our most loyal fans, this time we’ll be offering a Season Pass that will get you all of the Fallout 4 DLC we ever do for just $30. Since we’re still hard at work on the game, we don’t know what the actual DLC will be yet, but it will start coming early next year. Based on what we did for Oblivion, Fallout 3, and Skyrim, we know that it will be worth at least $40, and if we do more, you’ll get it all with the Season Pass.”

    https://bethesda.net/en/article/2RAO5fYPkcUC0i8KMkyOS/fallout-4-launch-and-beyond

    [​IMG]


    Also, the team bringing the case against Bethesda is requesting an injunction against the sale of ZeniMax to Microsoft, claiming that ZeniMax is trying to get the sale done quickly to offload Bethesda's assets while leaving it an empty husk that has nothing left to pay-out should it lose a legal case;

     
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  12. DraQ Prestigious Gentleman Arcane

    DraQ
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    Chrząszczyżewoszyce, powiat Łękołody
    :cockporn:
    :popcorn:
     
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  13. Spectacle Arcane Patron

    Spectacle
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    Bethesda's season pass description says that you get all the DLC that they will ever do for Fallout 4, but the mods were done by modders, not Bethesda, duh.

    Checkmate, lawyers! :smug:
     
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  14. deuxhero Arcane

    deuxhero
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    Most lawsuits like this seem garbage, but here it seems clear that Bethesda 1: Pretty clearly said the "Season Pass that will get you all of the Fallout 4 DLC we ever do" 2: Called CC content Fallout 4 DLC and 3: Did not include that content in the season pass.

    If anyone here is degenerate enough to have a Twitter account, send the case and bits of evidence to RekietaMedia and he might cover it.
     
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  15. Alexander DeLarge Arbiter

    Alexander DeLarge
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    I love the fact that they're fucking themselves by trying to weasel out of the paid mod controversy via "it's not paid mods, it's DLC" argument.
     
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  16. prengle Learned

    prengle
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    there is absolutely no way this dude will get past zenimax (and now microshit's) lawyers, still funny tho
     
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  17. Ol' Willy Dumbfuck! Dumbfuck Zionist Agent

    Ol' Willy
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    Zenimax is literally Jewish company, what did you expect?
     
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  18. copebot Educated

    copebot
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    If you look at their filings, the plaintiffs fucked up the complaint numerous times. This is an above average number of "filed in error by counsel" entries. This is the complaint, which was not linked by VentureBeat.

    The website of the law firm inspires no confidence. Bethesda has moved to sanction the plaintiff attorneys for violating settlement discussion confidentiality. Settlement negotiations are supposed to be confidential. It is something very simple that state bars, law school, etc. drills into people very early. This is Bethesda's letter of intent to file a motion to sanction the plaintiff attorneys. The journo spam articles about this case were just irresponsibly written. They didn't even look at the filings or link to the complaint. The articles are from Feb. 2021 but this case was first filed in 2019. There is no point, also, to ever violating the confidentiality of settlement negotiations. There is no possible upside to it. The last entry on the docket is a settlement conference in December. This fact was not in the VentureBeat article (because they're stupid retards). Bizarrely, one of the attorneys for the plaintiff declined to state whether or not the case was headed towards settlement when the settlement conference with the judge is on the public court docket on Dec. 22, 2021.

    Whenever journalists write about court cases you can almost always learn more about the case in less time than it takes to read the article by opening the docket. Articles like these only exist to spread disinformation, in this case, on behalf of the plaintiffs. Dean Takahashi not only sucks at Cuphead, but he is also out of his depth analyzing anything serious. All he did was act as a mouthpiece for the plaintiffs, down to pasting the JPGs of their exhibits in his "article." There is no mention of Bethesda's motions to compel arbitration, because the EULA binds users to forced arbitration. These fundamental issues greatly weaken the plaintiff's negotiating position as the contract makes a class action lawsuit impossible. The use of forced arbitration clauses n EULAs is a controversial issue that is not actually settled law, which is an interesting topic for an article that is relevant to this case which is, indeed, important to both gamers and the games business. The article says that the arbitration agreement was not in force when the class representative bought the season pass, but what matters is whether or not it bound them at the time that they filed in the suit in 2019 -- which is Bethesda's apparent position from the court filings.

    It is also bad form when an arbitration agreement governing the parties is in place to not even attempt to make an argument in the complaint as to why the agreement does not apply. In their PR to Takahashi their argument was that the arbitration agreement was not in force when the class representative bought the season pass. Maybe yes, maybe no, but it's considered disrespectful to the judge to not at least attempt to address it before the judge kicks your ass down to arbitration. It is also common for scammer plaintiff attorneys to NOT educate their clients about anything that gets in the way of them getting paid to file a shitty losing lawsuit. They do get hilarious gamer points for bringing up horse armor DLC in a complaint, though. They also did not mention the EULA even once in the complaint, even though it is the controlling contract between the class and Bethesda. Cheekily, they allege breach of contract related to the false advertising claims without referencing the actual controlling contract (because it would self-detonate their case).

    The chaser? Filippo Marchnio, one of the lead plaintiff attorneys on the case, embezzled client funds for his "close associate" Michael Avenatti to go halfsies with him on a private jet. Small world. Weird how ACE JOURNALIST Dean Takahashi missed a part of the story that might be juicy and interesting instead of just boring. X-Law Group is closely related to Avenatti to the point to which the two were sharing an apartment before his arrest.
     
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  19. Delicieuxz Augur

    Delicieuxz
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    And yet, the accusation against Bethesda still stands.

    EULAs are generally worthless in the first place. But if a person was bound to some terms laid-out in an EULA, it would only be the terms at the time when they 'agreed' to them, and not some additional ones that the publisher claimed at a later date. The publisher has no power to unilaterally change the terms regarding an item they've sold, and claiming such an authority would render the terms an illusory promise and consequently nullify them.

    https://legal-dictionary.thefreedictionary.com/Illusory+Promise

    "A statement that appears to assure a performance and form a contract but, when scrutinized, leaves to the speaker the choice of performance or non-performance, which means that the speaker does not legally bind himself or herself to act."

    We're not talking about an ongoing service here, but a sold product. A publisher claiming they could change the terms of an agreement after the fact of the sale would be an illusory promise, and so would be non-binding. But there allegedly wasn't even such a claim by the publisher in this case, as there was, allegedly, no EULA included with the sale of Fallout 4. There was no agreement to allow the publisher to be able to change or set any terms in the contract of sale.

    https://www.upcounsel.com/what-is-contract-of-sale

    "A contract of sale is an agreement between a seller and a buyer. The seller agrees to deliver or sell something to a buyer for a set price that the buyer has agreed to pay. With these contracts, the transfer of ownership happens when the buyer pays and the seller delivers."

    The plaintiff received the copy of the game in exchange for the money they gave for it. That's it. The publisher can't add any terms any more than the purchaser can add their own terms on the publisher such as saying that the publisher will pay them $5 every time the purchaser plays the game they bought from the publisher.


    Regarding the use of a 'forced arbitration' clause in EULAs, a case was mentioned earlier in this thread in which such a clause was deemed biased in favour of the publisher and denied: https://en.wikipedia.org/wiki/Bragg_v._Linden_Lab

    "The Court also denied Linden Lab's motion to compel arbitration, finding that the Terms of Service represented an adhesion contract that was unjustly biased towards Linden Lab."

    Anywhere a forced-arbitration argument is made, that decision should be able to be cited as a precedent.

    How can an EULA be a controlling contract (and the history of EULAs in courts doesn't make that argument a very sound one) if an EULA was never agreed to, not least of all because an EULA wasn't included with the product when it was sold, purchased, and first used?

    What you're saying here isn't how it works. There doesn't need to be an EULA or an additional controlling contract in order to make a false-advertising argument. There just needs to be actual false advertising and someone being deprived of what they were promised with their purchase. So, the contract of sale, which here includes the marketing promising all future DLC will be free for owners of Fallout 4, is the controlling contract.

    You sound like you're quite the passionate fan-person of Bethesda.
     
    Last edited: Mar 11, 2021
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  20. EtcEtcEtc Learned

    EtcEtcEtc
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    Please get into a legal argument over this you two - not ironically saying that, it would be v. interesting.
     
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  21. copebot Educated

    copebot
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    I don't care about Bethesda one way or the other and my opinion on this is not impacted by my feelings about the company. The EULA is not worthless here: it's the controlling contract between the user and the software company. Personally, I do have lots of issues with the way that EULAs are issued and I agree that in most instances they do not meet the crucial elements of a contract. However, precedent doesn't agree and neither does the law. As a personal and political view, I think that most adhesion contracts that companies rely on should be illegal, but how I feel about it doesn't change the way that the law is interpreted.

    Bethesda may have done all of those things involving false advertising, and even if all of them were true, it wouldn't matter because the EULA compels arbitration and forces an acceptance of a class action waiver. He accepted the EULA when he purchased the license. When you click 'buy game' you are buying a contract to access game software. Intellectually, we are probably in agreement that this is stupid and runs contrary to the ancient spirit of contract law because there is no consideration on the part of the purchaser. The constant mutability of these EULAs is also a serious legal and philosophical issue. But courts do tend to enforce them, so they are real contracts, and when you are arguing against a contract in court you have to attack the contract directly rather than hoping the court doesn't notice it.

    Todd Howard cannot rape your sister and get that kicked down to arbitration, but he can do just about anything else to you involving some kind of civil law violation and squelch it from state or federal court. He is still bound to obey the decision resulting from the arbitration, but he can kick it out of court. Todd Howard cannot kick a Federal Trade Commission false advertising case down to arbitration because you cannot bind the government to such things. If Congress were to pass a Gamers Rise Up amendment to the Federal Arbitration Act to specifically exempt false advertising claims from arbitration clauses, that would also make it possible to sue Todd. Absent that the EULA does control your relationship with Bethesda.

    For false advertising issues, there are also questions of standing that a customer may have regarding bringing claims like that, but that's not that relevant to this case.

    I don't think you fully grasped the context of Bragg v. Linden Lab and the judge's decision on the motion to compel arbitration.

    There are many issues that can lead a forced arbitration clause to be stricken, but the general rule is set by the standard of the Supreme Court decision in American Express v. Italian Colors. Scalia wrote:

    In Bragg, the key claim that the plaintiff made about the unconscionability of the arbitration clause was under California law in 2006. In my original post, I pointed out that when you are trying to get the arbitration clause out, it really behooves the plaintiff to make the argument in the complaint and to point out why you think the contract is bad. The Bragg decision that denied the motion to compel arbitration was centered around how the EULA was written. 2006 was also before 2015 Supreme Court decision in DIRECTV, Inc. v. Imburgia which held that the Federal Arbitration Act supersedes state law, with California state law singled out.

    Bragg, like other cases that involve overturning a forced arbitration clause, are concerning specific issues in that contract rather than the principle in general. If you are arguing against whether or not that provision applies, you have to argue against it or you are never going to win on that point. It is a common pattern you'll see in plaintiff cases involving arbitration clauses that are scams as compared to real ones that might have a chance of going somewhere: if you try to skate around the existence of the contract, you are going to get pounded, but if you have a substantive argument against the contract, that is really what should be the heart of your case. The Bragg decision does not throw out the concept of EULAs or contracts -- just those particular provisions of that contract under California state law. Even though this was a Federal district court, the judge who wrote this decision on this order: "Thus, the Court will apply California state law to determine whether the arbitration provision is unconscionable.[16]" -- and if you follow the footnote, the judge said that this was by consent of both parties involved.

    Additionally, when you 'buy' software in the US, you inevitably are typically just purchasing a license (the L in EULA) to use the software. The EULA contains a class action waiver and a binding arbitration agreement. The arbitration agreement is in Section 15 of this page. This case was already in settlement conference in December 2020, so it is likely on its way to being done anyway, but if they had wanted to make a real case, they would have to, like in Bragg, explain why Section 15 was substantively and procedurally unconscionable. That is what is important to keep the case from getting kicked down to arbitration, especially because they also have to argue about the class action waiver provision as well.

    There are lots of circumstances in which plaintiffs will try to get an arbitration clause cancelled that aren't about EULAs or similar things -- employment cases, investor disputes, business to business disputes, etc. and all the cases have to focus on the specific element in the contract that is unconscionable under the controlling law whether it is state or federal. Whenever lawyers don't do that and the case just gets kicked to arbitration it's usually because they are scamming the hapless client(s) on a case that will inevitably be kicked down to arbitration. Much like this one from Michael Avenatti's roommate.

    Again, personally, I don't think EULAs should be as broad or enforceable as they are. I'm not even sure they should exist, period. I think there are lots of problems with forced arbitration clauses. That's my opinion, but the law and precedent have moved towards making them more enforceable rather than less over time.
     
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  22. Delicieuxz Augur

    Delicieuxz
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    There is allegedly no EULA to possibly be a controlling contract in this case, because an EULA which was never a part of the purchase of the software cannot possibly be a factor when it comes to assessing a person's rights concerning the software anymore than some terms you decide to come-up with on some used item you sold through Craigslist 5 years ago can be applied to that item you sold in a straight-forward transaction in exchange for cash.

    And even when an EULA is present, there isn't a strong history of them being held-up in courts around the world - they're usually disregarded in court.

    https://www.lexology.com/library/detail.aspx?g=148be5c9-c0d4-4ff7-8dbd-d15884250729
    https://en.wikipedia.org/wiki/Bragg_v._Linden_Lab
    http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996
    https://www.techdirt.com/articles/2...-even-if-software-company-says-you-cant.shtml
    https://www.lexology.com/library/detail.aspx?g=d1ff4369-afcc-4879-97fa-7a8afd8b3380
    https://www.polygon.com/2019/9/19/20874384/french-court-steam-valve-used-games-eu-law

    No, purchasing a piece of software doesn't equate agreeing to an EULA. That take is merely a publisher's wet dream fantasy. I recommend reading the Australian High Court's verdict against Valve to see how that argument played-out when Valve tried it.

    And I don't know why this keeps on needing to be said, other than because it seems to nullify the premise for your argument, but an EULA which was never a part of the purchase of the software isn't a factor when it comes to assessing a person's rights concerning the software - and the claim of the plaintiffs in the Fallout 4 DLC case is that the game didn't come with an EULA. If their claim of that is true, then it's entirely of no consequence what's in an EULA that wasn't a part of the contract of sale, and it seems disingenuous to me to keep circling back to an argument that doesn't apply.

    That's, again, the publisher's preferred view, but it isn't the established fact in the US. The Supreme Court in the US opined in 2013 that the first-sale doctrine necessarily applied to software when giving the reasoning for its judgment in Kirtsaeng V. John Wiley & Sons, saying:

    "A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permission from their software component suppliers, and Wiley did not indicate to the contrary when asked. See Tr. of Oral Arg. 29–30. Without that permission a foreign car owner could not sell his or her used car." And also: "For example, the Court observes that a car might be programmed with diverse forms of software, the copyrights to which might be owned by individuals or entities other than the manufacturer of the car. Ibid. Must a car owner, the Court asks, obtain permission from all of these various copyright owners before reselling her car?"

    That reasoning was part of the basis for the court's ruling regarding the first-sale doctrine and foreign copyrighted works. The Supreme Court said the first-sale doctrine applies to foreign copyrighted software because there is no special exemption from the first-sale doctrine when it comes to foreign copyrighted software - which means that the USSC's belief regarding domestic copyrighted software is that the first-sale doctrine applies to it. That view of the court overrules many EULAs, which claim that the first-sale doctrine doesn't apply to the software the EULA is concerning.


    That's a Terms of Service, not an EULA. A Terms of Service applies to a service, not a good. Games and all software sold are goods, not services. An EULA is used in reference to a good, but the legal identity of a good overrules whatever an EULA might say that contradicts the legal rights granted to a party purchasing a good.

    That Terms of Service is regarding the Bethesda online store, which is a service owned and operated by ZeniMax. The games sold through that service as goods, however, are not services, they're goods that are sold to the purchasers of them - just like how the Amazon storefront is a service, but the products purchased through the Amazon storefront are goods. As purchased software, or any purchased item, is a good and not a service, a Terms of Service doesn't apply to purchased software.

    Also, has it been said anywhere that the plaintiff purchased their copy of Fallout 4 from the Bethesda online store?

    I don't see that in the history of EULAs. I see the opposite. The one notable case where an EULA was upheld was in the 9th Circuit Autodesk case. Outside of that case, though, it's been pretty much a clean sweep against EULAs. And a Terms of Service isn't an EULA, and cases where a ToS was upheld cannot serve as arguments in favour of EULAs for goods that people have purchased.
     
    Last edited: Mar 11, 2021
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  23. Testownia Guest

    Testownia
    Are you winning, son?
     
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  24. MWaser Arbiter

    MWaser
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    kudos for y'all law familiarity here, but these walls of text make me
    :abyssgazer:
     
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