Happy Birthday to All of Us
July 28, 2015 10:08 AM   Subscribe

Copyright owners of the song "Happy Birthday" have built a stead yearly income of two million dollars a year by giving rights to use the song publicly for about $1500 per use. This copyright claim was fought in court recently, and a "smoking gun" was discovered in the process that places the public use of the song a number of years before the copyrighted work for hire, and as such, argue the plaintiff's lawyers, make the song conclusive in the public domain. Read more here.

More on the copyright status of "Happy Birthday" here and here.
posted by SpacemanStix (81 comments total) 18 users marked this as a favorite
 
The "Squashed tomatoes and stew/you look like a monkey and you smell like one too" verses remain the property of SCO.
posted by Artw at 10:13 AM on July 28, 2015 [9 favorites]


and many more/on channel four
posted by infinitewindow at 10:15 AM on July 28, 2015 [5 favorites]


Plaintiffs' lawyers argue a lot of things, and calling something a "smoking gun" doesn't make it so until a judge rules on it. Your "Happy Birthday" is premature.
posted by yhbc at 10:15 AM on July 28, 2015 [1 favorite]


Plaintiffs' lawyers argue a lot of things, and calling something a "smoking gun" doesn't make it so until a judge rules on it.

True enough, but this one does sound pretty compelling.
posted by yoink at 10:21 AM on July 28, 2015


Ugh. Who cares. That song is terrible. It sounds like a funeral dirge with one foot in the grave. It's horrible.
posted by sexyrobot at 10:22 AM on July 28, 2015 [10 favorites]


It sounds like a funeral dirge with one foot in the grave.

It's true, composers often favor major keys for their dirges.

Also, attempting to play music with one foot in a grave is more challenging than you might think.
posted by Greg_Ace at 10:27 AM on July 28, 2015 [7 favorites]


Ugh. Who cares. That song is terrible. It sounds like a funeral dirge with one foot in the grave.

...thus reminding us about the true nature of birthdays.
posted by solarion at 10:28 AM on July 28, 2015 [72 favorites]


what day is today? it's nibbler's birthday! what a day for a birthday; let's all have some cake!

Copyright shenanigans are among the worst of the legal profession. Except for all the other shenanigans.
posted by crush-onastick at 10:29 AM on July 28, 2015 [7 favorites]


I like the "mashed potatoes and stew" version my dad favors.
posted by a lungful of dragon at 10:29 AM on July 28, 2015 [1 favorite]


Ugh. Who cares. That song is terrible. It sounds like a funeral dirge with one foot in the grave.
...thus reminding us about the true nature of birthdays.
Nearer to death to you,
Nearer to death to you,
Nearer to death, dear walking dead,
Nearer to death to you.
posted by SpacemanStix at 10:34 AM on July 28, 2015 [3 favorites]


Plaintiffs' lawyers argue a lot of things, and calling something a "smoking gun" doesn't make it so until a judge rules on it.

The fact that this song is not in the public domain is absurd. Wikipedia does a good job of summing up the song's history and copyright status, but, in short, the song dates back to the mid-19th century, the first version published was in 1912, and the only reason it is copyrighted today is because an already existing song was copyrighted in 1935. Even under current copyright law -- which was not in place when the song was written -- the song would enter public domain next year, 70 years after the death of its last author. But Warner/Chappell, who maintains the copyright, wants to keep it out of the public domain until 2030, based on the later, fraudulent copyright.
posted by maxsparber at 10:39 AM on July 28, 2015 [14 favorites]


That song is terrible. It sounds like a funeral dirge with one foot in the grave.



Which is why I prefer this alternative.


Warning: aural diabeetus.
posted by TheWhiteSkull at 10:39 AM on July 28, 2015 [2 favorites]


Just a reminder of what those words are:

Happy birthday to you
Happy birthday to you
Happy birthday dear [insert name]
Happy birthday to you

So ... a total of five different words, plus a name.
posted by chavenet at 10:43 AM on July 28, 2015 [4 favorites]




What's all this about assorted vegetables and stew? The line is "you belong in a zoo." This is immediately followed by the rationale for the statement.
posted by darksasami at 10:44 AM on July 28, 2015 [23 favorites]


Vallon-Pont-d'Arc, France -- Archaeologists and film historians are studying a group of figures found painted on the walls in a newly discovered level of Chauvet Cave, near here. Amid the usual bison and other prey species are a group of figures of unidentified species that so far defy analysis. Chief among these is a figure whose "head" seems to consist of three overlapping black cicles. Our guide, Prof. I. Ubwerks points out an interesting detail: "No matter from what angle you view it," he says, "those upper two circles -- we're provisonally calling them the "ears" -- always appear straight on. It's like those paintings of Christ where the eyes follow you around the room. Spooky."

Another interesting observation is that all of the figures, though obviously intended to be interpreted as animals of some kind, appear to be wearing opera gloves. No theory has so far been advanced to account for this feature.

Meanwhile, the team continues to analyse the paintings to attempt to determine the age, materials, and possible identity of the artists, as well as the esoteric question of 'prior art'.
posted by Herodios at 10:44 AM on July 28, 2015 [8 favorites]


"Now, they have filed (PDF) what they say is "proverbial smoking-gun evidence" that should cause the judge to rule in their favor."
And may the spirit of Marty Sheinbaum—to whom such things as intellectual property, droit moral, fair use, royalty structure, etc. meant a great deal—smile upon them.
posted by octobersurprise at 10:49 AM on July 28, 2015 [3 favorites]




I always wanted to hear the rest of this birthday song (wait for it).
posted by infinitewindow at 10:56 AM on July 28, 2015


... as well as the esoteric question of 'prior art'.

A nearby figure of a white lion shows obvious evidence of having been vandalized, possibly in an attempt to disfigure or remove it entirely.
posted by Greg_Ace at 10:57 AM on July 28, 2015


I usually just sing to myself, in a sort of riff on the monkey version I guess, combined with Nibbler's birthday song:

Happy birthday to me
I live in a tree
Today is my birthday
Let's all have some gin

And then I have some gin.
posted by Mrs. Pterodactyl at 10:57 AM on July 28, 2015 [45 favorites]


Ugh. Who cares. That song is terrible. It sounds like a funeral dirge with one foot in the grave. It's horrible.

The trick is to embrace it! Here's the preferred version, to the tune of the Volga Boatman:

HA-PPY BIRTH-DAY! *slam fist on table*
HA-PPY BIRTH-DAY! *slam fist on table*
CHILDREN CRYING PEOPLE DYING HA-PPY BIRTH-DAY! *slam fist on table*

Here it is! Viking Birthday Dirge!
posted by leotrotsky at 10:58 AM on July 28, 2015 [10 favorites]


What's all this about assorted vegetables and stew? The line is "you belong in a zoo." This is immediately followed by the rationale for the statement.

Point of order: you do not merely BELONG in a zoo, in fact you already LIVE in a zoo. This is both the cause and effect of looking like a monkey and smelling like one too.
posted by Mrs. Pterodactyl at 10:58 AM on July 28, 2015 [46 favorites]


Source: JCC Summer Camp 1990
posted by Mrs. Pterodactyl at 11:00 AM on July 28, 2015 [4 favorites]


I thoroughly *enjoy all of the insane variations on celebratory birthday songs the various marketing departments at chain restaurants are forced to employ due to this copyright. It would be a shame to have everyone revert back to the boring old standard.

(* enjoy here meaning: watch. The last person who reported to the fine staff at Friendly's that it was my birthday, and "why yes, he would love a fine song and sundae" is still being reported as missing.)
posted by Debaser626 at 11:00 AM on July 28, 2015 [6 favorites]




There's nowhere you can run to, there's nowhere you can hide, when they drop the big one we all get fried! C'mon, boys and girls, sing along, okay?
posted by delfin at 11:05 AM on July 28, 2015 [6 favorites]


I thoroughly *enjoy all of the insane variations on celebratory birthday songs the various marketing departments at chain restaurants are forced to employ due to this copyright.

I've heard "Happy Birthday" sung in many, many restaurants. I've joined in, indeed, with all the other patrons in the restaurant singing "Happy Birthday" to some poor hapless shlub whose friends have whispered to the waitstaff that it's so-and-so's birthday. What's the actual legal status of those occasions? If the waiters don't sing themselves are the patrons technically in violation of copyright? Could they technically be sued for royalties? If the patrons start the song and the waiters join in is the restaurant technically on the hook? Anyone here a law-talking-person?
posted by yoink at 11:08 AM on July 28, 2015


Don't chain restaurants play music constantly? Aren't they already paying blanket licenses for public performance?
posted by uncleozzy at 11:11 AM on July 28, 2015


Mrs. Pterodactyl am I remembering wrong or are there two Bday songs from Futurama?

I remember it like this:

"What day is today?
Its Leela's Birthday
What a day for a Birthday
Let's all have some cake!"
posted by kittensofthenight at 11:22 AM on July 28, 2015


Could they technically be sued for royalties?

Ascap Asks Royalties From Girl Scouts, and Regrets It
-- NYT, December 17, 1996
'Public Performance,' Whatever That Is

The story began in 1995, when Ascap approached the American Camping Association and said it wanted to charge for copyrighted music performed at the group's 2,300 camps. ''You've got to be kidding,'' said the association's executive vice president, John Miller, who quickly found a lawyer well versed in the details of Federal copyright.

The law says songwriters are entitled to royalties for copyrighted work used in ''public performance,'' which it defines as a place ''where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.'' The lawyer determined that Ascap was indeed within bounds, and that nonprofit camps, like the Girl Scouts, were not necessarily exempt from music licensing fees.

The camping group grudgingly entered into negotiations with Ascap, and agreed that large camps would pay $250 a year each, a discount of $1,000 a year or more. But the group remained angry at what it considered Ascap's zealotry, and in an October 1995 newsletter sounded alarms.

The letter said that according to the legal definition of ''public performance,'' Ascap could charge for singing around the campfire, even though the association now admits that Ascap never said specifically that it wanted to charge for campfire songs. The letter gave the highest possible penalty for copyright infringement: up to $100,000 per performance, and a year in prison.

It urged its members to pay the $250 fee. Among the 256 Girl Scout camps on its list, 16 did.

Don't chain restaurants play music constantly? Aren't they already paying blanket licenses for public performance?

The recorded Moozak license is not the same as the Public Performance license.

IANYCRL
 
posted by Herodios at 11:29 AM on July 28, 2015 [1 favorite]


What about the more common alternate version?

Happy birthday to you,
Happy birthday to you,
Happy BIRTHday dear [mumble mumble]
Happy birthday to you.
posted by gottabefunky at 11:30 AM on July 28, 2015


You periodically see rants from The Little Guy who is OUTRAGED that ASCAP and BMI want money for the commercial popular music that they play to attract customers and to enhance the atmosphere of their restaurant or bar or cafe, and I actually don't have a lot of sympathy for those, but a campfire sing does seem to me to be different.
posted by thelonius at 11:34 AM on July 28, 2015 [2 favorites]


Oh man, a plucky group of indie filmmakers are suing a legally tenacious corporation over intellectual property laws? Who wants to take bets on which side wins?
posted by shmegegge at 11:35 AM on July 28, 2015


Ascap Asks Royalties From Girl Scouts, and Regrets It

But isn't that a very different situation from a bunch of customers at a restaurant? The Scouts have come together as an organization of which all the girls are members. That is a very different and far less casual relationship than that of patrons at a restaurant. The way in which the Girl Scouts of America are collectively responsible for the organized activities of troops engaged in Scout business is pretty clear and does not seem at all analogous to a restaurant owner's relationship to the activities of diners.
posted by yoink at 11:37 AM on July 28, 2015


I usually just sing to myself...And then I have some gin.

I'm going to go out on a limb and hypothesise that this happens more frequently than your birthday.
posted by biffa at 11:41 AM on July 28, 2015 [5 favorites]


I'm going to go out on a limb and hypothesise that this happens more frequently than your birthday.

It's like you've been to a DC meetup!
posted by Mrs. Pterodactyl at 11:46 AM on July 28, 2015 [5 favorites]


I'll be in the cold, cold ground before I recognize any birthday song that doesn't include the words, "My name is Zoom, and I live on the moon..."
posted by Guy Smiley at 11:46 AM on July 28, 2015 [1 favorite]


needs more Sports Night
posted by pjenks at 11:47 AM on July 28, 2015 [4 favorites]


This is the only valid version of the song. Especially if your name is Tiffany.
posted by blue_beetle at 11:48 AM on July 28, 2015 [3 favorites]


A wonderful opportunity exists where no one has gone before...

Seems like we should all be kickstarting a public trust purchase for this song.
posted by Ogre Lawless at 11:49 AM on July 28, 2015


Cha-cha-cha!
posted by the_blizz at 11:49 AM on July 28, 2015 [1 favorite]


These days it makes me think of Les Tontons Flingueurs. It's like a sort of elderly French 'Hasta La Vista, Baby'.
posted by Segundus at 11:49 AM on July 28, 2015


The proliferation of more and stranger happy birthday songs due to the dubious copyright status of the standard birthday song has resulted in a net benefit to humanity.
posted by sleeping bear at 11:54 AM on July 28, 2015 [6 favorites]


Speaking of smoking guns, here's how they celebrate birthdays in Police Squad
posted by iotic at 11:56 AM on July 28, 2015


At my age, my feelings about the "Happy Birthday" song are best summed up by Mermaid Man™:

"Stop shoutin', I'm nappin'!"
posted by BigHeartedGuy at 11:58 AM on July 28, 2015


This was my go-to depressing birthday song for years.
posted by Mister Moofoo at 12:02 PM on July 28, 2015


Other alternate in full:
Happy birthday to you
Squashed tomatoes and stew
Bread and butter in the gutter
Happy birthday to you

Can't imagine how those lyrics became a thing. The monkey one is miles better.
posted by NixonNixonNixonNixon at 12:02 PM on July 28, 2015


Everybody say "Happy"
Happy!
"Birthday"
Birthday!
[kazoo solo]

PS: Why don't more hip hop songs have kazoo solos?
posted by mhum at 12:25 PM on July 28, 2015


That song should be in the public domain. If we had a functional political system, an act of Congress could make it so while duly compensating the copyright holders.
posted by Gelatin at 12:26 PM on July 28, 2015


[U]nder the 1909 Copyright Act which was then in force, a published work had to include the word “Copyright,” the abbreviation "Copr., " or the "©" symbol, or "the published work was interjected irrevocably into the public domain."

If memory serves me correctly, a similar error placed Night of the Living Dead into the public domain. The original title card under the name Night of the Flesh Eaters contained a copyright notice, but the retitled version did not.
posted by Gelatin at 12:45 PM on July 28, 2015 [1 favorite]


How about a compromise: Happy Birthday by itself is free, but inserting "cha cha cha" between verses is $500 per cha.
posted by kurumi at 12:54 PM on July 28, 2015 [1 favorite]


Of course, if you're a francophone it's all turtles and cheese.

Quel age as-tu? (Vieille tortue)
Quel age as-tu? (Vieille tortue)
Quel age, fromage,
Quel age as-tu?

posted by looli at 1:24 PM on July 28, 2015


Here it is! Viking Birthday Dirge!

My seventh grade math teacher would sing a version of that to birthday boys and girls in his class in a deep, rich baritone. I will sing it to people if they ask nicely and I'm sufficiently lubricated.
posted by backseatpilot at 1:28 PM on July 28, 2015


That important line of text published underneath the song's lyrics was "blurred almost beyond legibility" in the copy that Warner/Chappell handed over in discovery. Plaintiffs' lawyers note that it's "the only line of the entire PDF that is blurred in that manner."
Just curious: if the judge decides that this blurring was actually done intentionally to hide evidence undermining Warner/Chappell's defence, what sort of options would they have to deal with that? The stakes are so high in this case that it seems like you'd have to make any fine ridiculously high to have any sort of deterrent effect in future.
posted by No-sword at 1:29 PM on July 28, 2015


OK, that Unhappy Birthday site is a joke/satire, right? (Right??) It's unsettling that I am not sure...

How Can I Help Stop Infringement?

The best way to stop infringement is to tell the authorities and the owners so that they can follow up and arrange for a license and for royalties to be paid. Licenses for Happy Birthday are controlled by ASCAP. While monetary royalties will be negligible for a single restaurant performance, it is the principle that is at stake.

If you have seen someone singing Happy Birthday in a restaurant, a park, or at a school, you should tell ASCAP so that they can arrange for a license. If you are an offender, you should apologize and offer to pay whatever is due — a nickel, a quarter, a dollar — whatever ASCAP demands.

There is an overwhelming amount of copyright infringement of Happy Birthday. Let's right the balance and tell ASCAP about every one of these violations!

About Us

Unhappy Birthday is a grassroots project run by citizens who are outraged by rampant copyright infringement in today's society — particularly in relation to the song Happy Birthday.

You can support us by buying overpriced items in the official Unhappy Birthday store.

posted by aka burlap at 1:30 PM on July 28, 2015 [1 favorite]


You periodically see rants from The Little Guy who is OUTRAGED that ASCAP and BMI want money for the commercial popular music that they play to attract customers and to enhance the atmosphere of their restaurant or bar or cafe, and I actually don't have a lot of sympathy for those, but a campfire sing does seem to me to be different.

I do have some sympathy for this one because of how shittily it's enforced, honestly. Every small shop does this, and very few ever get busted. It always feels like really lazy and selective enforcement so whoever does the job can act like they're doing something besides dicking off all day.

It always just felt like some burned out tail light ticket quota BS.

That said, a lot of my sympathy evaporated now that pandora for business is $24 a month.
posted by emptythought at 1:33 PM on July 28, 2015




Metafilter: The monkey one is miles better.
posted by chavenet at 1:47 PM on July 28, 2015 [2 favorites]


I usually just sing to myself...And then I have some gin.

I usually just sing to myself... and then I send a huge royalty to Time Warner. Oh wait, that's my internet bill.
posted by SpacemanStix at 1:50 PM on July 28, 2015


I do have some sympathy for this one because of how shittily it's enforced, honestly. Every small shop does this, and very few ever get busted.

I remember back in the 90's I was in a band that gigged at a bar where they had told ASCAP to get bent. Bands were NOT allowed to play covers and you would not get hired back if you violated that rule. By that time we had enough of a back catalog of dismal filler that we normally didn't play that we could cope, though.
posted by thelonius at 1:55 PM on July 28, 2015 [1 favorite]


Happy birthday to me
I live in a tree


Happy birthday to me
I live in a zee
I look like a monkoo
and I smell like one tee
posted by nebulawindphone at 2:20 PM on July 28, 2015 [3 favorites]


Source: JCC Summer Camp 1990
posted by Mrs. Pterodactyl at 1:00 PM on July 28


I'm suddenly really curious if JCC stands for Junior Choir Camp because if it does we probably went to camp together.
posted by joannemerriam at 2:33 PM on July 28, 2015 [1 favorite]


May you live a thousand years
May you drink a thousand beers
Get plastered you bad boy [girl]
Happy birthday to you


I was older than I care to admit before I realized that not everyone grew up with an Irish grandmother.
posted by zap rowsdower at 2:35 PM on July 28, 2015 [2 favorites]


My (non-Irish) father-in-law sings that one as "Get plastered, you bastard"
posted by Daily Alice at 2:38 PM on July 28, 2015 [1 favorite]


Wow that actually would have been way funnier when I launched into the second verse back in my first grade classroom.
posted by zap rowsdower at 2:39 PM on July 28, 2015 [1 favorite]


The Flintstones' Happy Anniversary song is still okay, I hope.
posted by ricochet biscuit at 2:54 PM on July 28, 2015


You periodically see rants from The Little Guy who is OUTRAGED that ASCAP and BMI want money for the commercial popular music that they play to attract customers and to enhance the atmosphere of their restaurant or bar or cafe

Would it change your mind at all to find out that hardly any artists ever see any of that money?
posted by lumpenprole at 2:55 PM on July 28, 2015 [4 favorites]


Happy birthday to you
Stick your head down the loo
If you taste it don't waste it
Happy birthday to you

Clearly I went to a far worse Brownie troop than the rest of you.
posted by tinkletown at 2:56 PM on July 28, 2015


As a kid watching Sir Graves Ghastley's Saturday afternoon Horror movie show, the best part was when he read the birthday announcements with his own birthday song in the background and then went on a tirade about copyright law.
posted by acrasis at 2:58 PM on July 28, 2015


leotrotsky: "The trick is to embrace it! Here's the preferred version, to the tune of the Volga Boatman."

HAP-PY BIRTH-DAY
HAP-PY BIRTH-DAY
HAPPY
BIRTHDAY
BIRTHDAY TO YOU

BIRTH-DAY TO YOU
BIRTH-DAY TO YOU
TO YOU
COMRADE
HAPPY BIRTHDAY

NOW,
ANOTHER YEAR HAS COME
AND
GONE

NOW,
YOU HAVE ONE LESS TO CALL
YOUR
OWN

WHAT
WILL YOU DO
WITH
NEXT
YEAR TO COME

UNTIL
NEXT TIME
WE SING THIS
SONG!
posted by Drexen at 3:23 PM on July 28, 2015 [1 favorite]


The Birthday Song Of The Horde (Courtesy SCA)
melody: Volga Boatmen

Oh Happy Birthday (UH!)
Happy Birthday (UH!)
Misery is in the air
people dying everywhere
Happy Birthday
Happy Birthday

...Cities burning in your wake
like the candles on your cake...

...Hear the women moan and weep
kill them all but save the sheep...

...NOW YOU'VE REACHED THE AGE YOU ARE
YOUR DEMISE CANNOT BE FAR
HAPPY BIRTHDAY (UH!)
HAPPY BIIIIIIRRRTTTTTTHHHHHDAAAAAAYYYYY

(probably more verses, don't remember them)
posted by tspae at 3:30 PM on July 28, 2015 [1 favorite]


If you're francophone hop on the birthday adaption of 'Gens du Pays' and thank Gilles Vigneault that we don't have to suffer through happy birthday anymore.
posted by coust at 3:30 PM on July 28, 2015


You can tell what kind of upbringing I had because "Volga Boatmen" doesn't mean anything to me but "…cities burning in your wake like the candles on your cake…" is an instant earworm.
posted by nebulawindphone at 5:28 PM on July 28, 2015 [1 favorite]


(Though honestly I didn't realize it started as an SCA thing either, just knew it as the all-purpose omni-fandom geek birthday song.)
posted by nebulawindphone at 5:31 PM on July 28, 2015


One year closer to death
One year closer to death
One year closer to dying
One year closer to death
posted by telstar at 8:45 PM on July 28, 2015


zap rowsdower: May you live a thousand years May you drink a thousand beers Get plastered you bad boy [girl] Happy birthday to you

One beer per year? What is this, a curse?
posted by traveler_ at 10:00 PM on July 28, 2015 [3 favorites]


When I saw that Dog/Cat retirement home video, and they mentioned that the pictures of the deceased animals along the stairway was called the Stairway to Heaven I thought I wouldn't be surprised if someone or some organization related to music rights sees this and attempts to sue them, partially because of this Happy Birthday fiasco and partially because of the copyright fiasco in general.

I may feel slightly sad, but I won't cry...
posted by juiceCake at 10:43 PM on July 28, 2015


The proliferation of more and stranger happy birthday songs due to the dubious copyright status of the standard birthday song has resulted in a net benefit to humanity.

It's like you have never heard those horrific alternative songs.

You periodically see rants from The Little Guy who is OUTRAGED that ASCAP and BMI want money for the commercial popular music that they play to attract customers and to enhance the atmosphere of their restaurant or bar or cafe

It's likely different in how it manifests now, but when this last was an issue I was peripherally near in the 90s it was less common for a shop to have an electronic doodad that might play a hundred hours of commercial free music. So shops would tune a radio to some local commercial station and leave it on.

One of the rights agencies would walk the strip and find places that did this. Bars in particular, but they'd make demands of a furniture store as well. I'm not sure it deserves outrage but I think it's fair to question why the commercial ad-supported arrangement is okay when someone is listening to the radio out on the beach but not in a shop.
posted by phearlez at 9:00 AM on July 29, 2015


Warner lawyers: 1922 songbook with “Happy Birthday” lyrics wasn’t “authorized”: A 1922 publication doesn't get rid of the "common law copyright" belonging to authors Jessica and Patty Hill, according to Warner's lawyers, unless it had the "necessary authorization from the copyright owner." And there's no telling what the "special permission" granted by the Summy Co. really means.
posted by 1970s Antihero at 11:54 AM on July 29, 2015 [1 favorite]


You periodically see rants from The Little Guy who is OUTRAGED that ASCAP and BMI want money for the commercial popular music that they play to attract customers and to enhance the atmosphere of their restaurant or bar or cafe

This model of paying a big corporation to promote their music or products drives me fucking crazy.
posted by juiceCake at 6:58 PM on July 29, 2015


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