Commentary. OK? On sports. Specifically, a big sporting event.
February 3, 2016 11:25 AM   Subscribe

Ever wish you could watch the Super Bowl Big Game with your favorite sketch comedy artists? This Sunday, you'll get your chance as Key & Peele have announced that they will host a live video broadcast during Super Bowl L Super Bowl 50 the Big Game. Due to legal restrictions, however, the duo are not allowed to say any of the players' names or mention the game at all. Technically an ad for Squarespace, the stream will mostly consist of the duo riffing and "talking around the game." (Key and Peele previously.)
posted by ultraviolet catastrophe (62 comments total) 13 users marked this as a favorite
 
Will they come up with new names for all the players?
posted by Strange Interlude at 11:30 AM on February 3, 2016 [21 favorites]


Are they allowed to say "arrested for solicitation of prostitution" or does the NFL own the rights to that, as well?
posted by Atom Eyes at 11:34 AM on February 3, 2016 [24 favorites]


I'm pretty sure I'd have way too much lag on the game for this to be enjoyable.

However, if I was in charge of getting a commentary booth for a videogame like ESPN2K5 (actors, not real commentators), I'd certainly go with Bill Burr on the play by play, with Key and Peele doing impressions for color and expert analysis.
posted by lmfsilva at 11:38 AM on February 3, 2016


They can talk about Hingle McCringleberry, right?
posted by spikeleemajortomdickandharryconnickjrmints at 11:39 AM on February 3, 2016 [12 favorites]


eponysterical
posted by gwint at 11:40 AM on February 3, 2016 [1 favorite]




How on earth could it be possibly legally problematic to say the players names? That seems completely insane to me...
posted by DrLickies at 11:41 AM on February 3, 2016 [5 favorites]


OK, so I understand why they can't rebroadcast the game and add their own commentary. But they can't say the players' names or mention the game? How is that legal?

Or is this one of those situations where the threat of litigation is enough, because the NFL has deeper pockets?
posted by explosion at 11:42 AM on February 3, 2016 [6 favorites]


Yeah, like, what the actual fuck?
posted by corb at 11:44 AM on February 3, 2016 [4 favorites]


I don't much care for football, but I do like the excuse the Super Bowl provides me to drink too much beer and eat too many nachos. And now Key & Peele can be added to the equation? Bonus!
posted by Hoopo at 11:44 AM on February 3, 2016


DrLickies: How on earth could it be possibly legally problematic to say the players names? That seems completely insane to me...

Welcome to the future: if you use teams names and logos, or players names or likeness, you would be infringing the teams trademarks and violating the players right of publicity.


Atom Eyes: Are they allowed to say "arrested for solicitation of prostitution" or does the NFL own the rights to that, as well?

I hope they refer to the NFL arrest records for clever (read: uncomfortably honest) nicknames.
posted by filthy light thief at 11:45 AM on February 3, 2016 [5 favorites]


If you have ads switched on on MeFi, you may be peripherally aware of this from this current month's Deck ad.
posted by zamboni at 11:46 AM on February 3, 2016 [1 favorite]


I suppose you could make up fake names and call it satire; if they merely broadcast audio (or video of themselves talking) then they'd skirt the "names and likenesses" aspect. I would assume, anyway; this is how the Alternate Rose Parade broadcasts tend to work.
posted by blnkfrnk at 11:48 AM on February 3, 2016


Welcome to the future: if you use teams names and logos, or players names or likeness, you would be infringing the teams trademarks and violating the players right of publicity.

When get recruited for the NFL, you automatically become a licensed character, just like Mickey Mouse, Batman, and the GEICO gecko.
posted by Strange Interlude at 11:50 AM on February 3, 2016 [4 favorites]


Yeah, the NFL is a real asshole about the Superbowl trademark.

Fun Fact: Apple, Inc. donated a whole bunch of stuff to the "Host Committee", the local group running the Superbowl for Santa Clara/San Francisco/etc. However, they forbade the NFL from mentioning the connection. They didn't want the football league to take advantage of the Apple brand to promote their silly ball game ;-).
posted by sideshow at 11:54 AM on February 3, 2016 [8 favorites]


too many nachos

My brain does not understand this combination of words.
posted by Theta States at 11:55 AM on February 3, 2016 [11 favorites]


A friend of mine works in media, and his company had been thinking about doing something like this! I was like, "dang, that sounds like it would be huge; I bet a bunch of people would love it." and he was like, "yeah, woulda been nice, but it turns out NFL rules are so weird and terrifying that no one's willing to risk the possible-illegality of doing it. Good luck to Key and Peele!
posted by Greg Nog at 11:55 AM on February 3, 2016


Yes please. Companies, please pay more comedians to do realtime riffing on live events.
posted by Theta States at 11:56 AM on February 3, 2016 [3 favorites]


Yes please. Companies, please pay more comedians to do realtime riffing on live events.

How about an event with fewer restrictions? My vote is for the first debate. Or the presidential inauguration. Or a congressional hearing.
posted by R a c h e l at 12:01 PM on February 3, 2016 [2 favorites]


"This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL's consent, is prohibited."

What is copyrighted? Not the game. Not the players. Not the players names. If Key & Peele were sitting in a tall building and looking down into the stadium, they could say anything they want and do a play-by-play.

What is copyrighted is the thing that comes out of the TV screen. The way it is filmed, the cameras, the graphics, what is said, the editing, etc. are a creative works. Or, in copyright lingo, those things are original works of authorship fixed in a tangible medium of expression, e.g. a tv broadcast. Clearly the broadcast is capable of being copyright protected. And if Key & Peele are watching the broadcast and commenting upon that--as opposed to the game itself--then that is capable of copyright.

The NFL has been accused of over-stating their rights as a copyright holder. Two particularly problematic aspects of its statement are the phrase "any other use of this telecast" and the phrase "descriptions or accounts of the game".
"Any other use of this telecast" make no allowance for "Fair Use" which is a limitation on a copyright. Copyright allows fair use. Fair use means use for a transformative purposes, such as commentary/criticism or parody. The NFL cannot stop Fair Use. So Key & Peele likely could meet something under Fair Use.
The phrase "descriptions and accounts of the game" is also likely over-reaching. This isn't a fair use issue; rather descriptions and accounts of the game is simply not copyright-able. "Peyton Manning got sacked and broke his leg" is a fact in the public domain, and the NFL could not state that fact in a way that could get copyright protection. In that regard, I'm at a loss as to how the NFL could claim the names of the players themselves are copyright protected. I suppose the "NFL Players Association" (the "union") might claim some right over their names and the use of their images (just like you can't use a star's picture to advertise your shop without permission), but I don't see how the NFL itself could claim that. So maybe the article is not specific enough and meant the NFLPA.

Ultimately, the NFL's copyright claims are likely over-stated. However, the NFL has notoriously been aggressive in trying to protect that copyright, including threatening to sue churches who show the game. So K&P may just be willing to avoid the lawsuit even if they could ultimately win a long drawn out fight on that.
posted by dios at 12:07 PM on February 3, 2016 [20 favorites]


Here's an Ars Technica story on the NFL's dubious copyright claims.
posted by Mothlight at 12:08 PM on February 3, 2016 [4 favorites]


The NFL cannot stop Fair Use.

It seems like this can be technically true, while also effectively false.
posted by ODiV at 12:19 PM on February 3, 2016 [13 favorites]


I hope it's funny! I'm not surprised they can't do "pictures or accounts" because if you watch sports, you hear that all the time, that any unlicensed pictures, accounts, etc of the game are prohibited. So no surprise there.

As far as the name thing, I almost brought it up in the previously thread, but didn't - that name thing is one of the more problematic skits they did. Most of them weren't problematic, and they came up with some fictional 'haters' to address some critiques, and actual skits (can I say the N word app) to address some problematic elements of their skits.

But it has bothered me since they first did those hilarious skits. And they are funny, just like a lot of jokes are funny, but the joke's on us. Why are the players names they come up with, to make fun of real NFL players names, so funny? Why is Plaxico hilarious but Bartholomew is ok? Why are names that white people have, like Krzyzewski, any different than

I thought for sure they were getting at this when they had the substitute teacher skit where he calls a student named Aaron "A-A-Ron", and pronounces other students names similarly. I kept waiting for the joke to be on the people who laugh at black kids names, but ultimately it seemed like the joke was on the substitute teacher.

Black people still get discriminated against for their names. I'm sure you've seen the studies and articles by now. There are big debates in the black community over naming a newborn, and it really is a 'fight or flight' conversation a good part of the time. So for them to just straight up make fun of black football players names, then end (in the initial skit) with the "normal" sounding named guy from Boise State I think it was, it was hilarious, but one of those jokes where in hindsight you realize it's that bad laughter. That Dave Chappelle "Haha! Whoo! This racism is killin me inside" laughter.

I love these guys and that skit is still funny and I still laugh at it. It's that mixed emotions laughter.
posted by cashman at 12:19 PM on February 3, 2016 [6 favorites]


"We're in international waters! We can do anything we want! That guy over there is rebroadcasting Major League Baseball games with implied oral consent!"
posted by thecaddy at 12:19 PM on February 3, 2016 [11 favorites]


How is that legal?

Often, the law isn't about justice or fairness.
posted by Brandon Blatcher at 12:25 PM on February 3, 2016 [4 favorites]


The phrase "descriptions and accounts of the game" is also likely over-reaching. This isn't a fair use issue; rather descriptions and accounts of the game is simply not copyright-able.

If memory serves, there have been some legal disputes that the leagues have generally lost on this matter when it comes to things like live-updating stats (like ESPN's GameCast) and fantasy stats. I'm not sure Squarespace wants that fight, though.
posted by Rock Steady at 12:41 PM on February 3, 2016


During the last World Cup, Peter Serafinowicz did some live commentary on the games, talking about the imminent "multiball" and other stuff. It was magnificent.

Hoping that one of the players does Hingle McCringleberry's excessive celebration in tribute to the Key and Peele commentary.
posted by fifteen schnitzengruben is my limit at 12:42 PM on February 3, 2016 [1 favorite]


Hoping that one of the players does Hingle McCringleberry's excessive celebration in tribute to the Key and Peele commentary.

It's already been done. I'm guessing there will be some dabbing (either by Cam or by a pick-6 defender making fun of him), hit them folks, possibly a drop, but more likely a milly rock. Outside chance of a whip and really low possibilities of a nae nae. But that K&P one is way played out at this point.
posted by cashman at 12:53 PM on February 3, 2016 [1 favorite]


Companies, please pay more comedians to do realtime riffing on live events.

Comedy Central used to do this for the State of the Union, but I think they stopped maybe around the time The Daily Show premiered.
posted by aaronetc at 1:18 PM on February 3, 2016


Has anyone told them that just the words super and bowl together sounds like a giant toilet?
They certainly treat everyone like ......
posted by Burn_IT at 1:36 PM on February 3, 2016


They could always substitute names of somebody else's copyrighted characters for the players... give each NFL team a "Disney" franchise, which would make this a matchup between the Denver Star Warriors and Carolina Avengers, with other teams including the Ducktailers (Seattle's a Duckberg kinda town), Mouseketeers (probably New England), Walt's Fairy Tales (need to consolidate the Dwarves with Fairy Godmothers and Witches), Katzenberg's Fairy Tales (Mermaids, Beasts and Genies), Muppets, Story Toys, Dalmations (there are 101), Aristocats and Cars (definitely Detroit).
posted by oneswellfoop at 2:03 PM on February 3, 2016 [1 favorite]


Thanks for the insightful commentary, dios. As to this part:

I'm at a loss as to how the NFL could claim the names of the players themselves are copyright protected. I suppose the "NFL Players Association" (the "union") might claim some right over their names and the use of their images (just like you can't use a star's picture to advertise your shop without permission), but I don't see how the NFL itself could claim that.

The standard NFL player contract does indeed seem to include various licenses of the rights of publicity from the player to the team, the league, and the union. For example, here is an alleged copy of the standard form contract on SB Nation (date and authenticity unclear), and Arian Foster's 2012 contract was filed with the SEC for some reason (and it appears to roughly validate that form on SB Nation). See paragraph 4, "PUBLICITY AND NFLPA GROUP LICENSING PROGRAM."

What's interesting to me about that paragraph is that part (b) is an "exclusive" license to use of the player's name, likeness, etc., for "group licensing programs" of various merchandise, but part (a), which concerns "broadcasts and telecasts," is not an exclusive license. So I would agree with you that the NFL does not appear to have the right to forbid other "descriptions and accounts of the game," at least not on the basis of rights of publicity.

The individual players might have that right, and the union's contract might include some sort of assignment of those rights, but the fact that neither the league itself nor the individual teams seem to have negotiated for this right is pretty fascinating. On what other basis would the NFL itself prohibit "descriptions or accounts of the game"? The event itself is not copyrighted. A 3rd party commentator would have to work around trademarks (like "NFL" and the team names), but you could do that if you're careful. And the rights of publicity are scattered among the various players. Huh.
posted by Joey Buttafoucault at 2:40 PM on February 3, 2016


fifteen schnitzengruben is my limit: During the last World Cup, Peter Serafinowicz did some live commentary on the games, talking about the imminent "multiball" and other stuff. It was magnificent.
Discussed here . It was, indeed, super great.
posted by Vendar at 4:09 PM on February 3, 2016


then end (in the initial skit) with the "normal" sounding named guy from Boise State I think it was

Mmm, that was Dan Smith, from BYU. I assumed it was a Mormon joke, like, haha, this completely uncool white guy, lookit this fucker.

At least that's how Mr. Freedom and I end our riffing on the skit . . . one or the other of us will mention "Dan Smith", and the other one will shake their heads and say "Brigham Young . . ." in a "seriously, dude?" voice, and then we will crack up laughing again.
posted by chainsofreedom at 4:37 PM on February 3, 2016


Arian Foster's 2012 contract was filed with the SEC for some reason

As part of an IPO where investors could get a share of his future earnings, FWIW.
posted by Homeboy Trouble at 4:50 PM on February 3, 2016


I hope L'Carpetron Dookmarriott makes an appearance!
posted by miyabo at 4:58 PM on February 3, 2016 [2 favorites]


I'm just impressed that this implies that hiring Key & Peele and a TV production studio and a real-time contract with Akamai for three hours is cheaper than buying a 30 second spot during the official Superbowl broadcast.
posted by ardgedee at 5:09 PM on February 3, 2016 [2 favorites]


Surprised that Australia's decades-long tradition of Roy & H.G. providing the only sporting commentary that matters hasn't got a mention in here. Here's the 2015 Festival of the Boot Part 1 (AFL Grand Final) for your listening pleasure.
posted by N-stoff at 5:20 PM on February 3, 2016 [3 favorites]


I'm just impressed that this implies that hiring Key & Peele and a TV production studio and a real-time contract with Akamai for three hours is cheaper than buying a 30 second spot during the official Superbowl broadcast.

They're doing that too.
posted by ultraviolet catastrophe at 5:24 PM on February 3, 2016


What is copyrighted? ... Not the players names.

Last year when I emailed a layout to an online t-shirt company to make one (1) t-shirt celebrating a certain player, they declined. The design was just his name in a sentence and a small silhouette of a quarterback about to throw a pass. I said that there could be any number of people with this name, which was only slightly less generic than "John Smith", playing eg, high school football but no. Copyright issues.
posted by TWinbrook8 at 7:55 PM on February 3, 2016


So K&P may just be willing to avoid the lawsuit even if they could ultimately win a long drawn out fight on that.

It's actually a double win for them, cause it's going to make it A LOT funnier.

It also shifts a lot of criticism from making fun of the sport and fans who like it, and turns it into making fun of a megalithic company of doom.
posted by mayonnaises at 6:49 AM on February 4, 2016 [1 favorite]


Last year when I emailed a layout to an online t-shirt company to make one (1) t-shirt celebrating a certain player, they declined. The design was just his name in a sentence and a small silhouette of a quarterback about to throw a pass...Copyright issues.
posted by TWinbrook8 at 9:55 PM on February 3


I think there may be a lack of precision there. That's not a copyright issue. You cannot copyright a name. Copyright law does not protect names. You can register certain names as trademarks (e.g., usually brand things like Coca-cola, Dr. Pepper, or Poo-pourri) and control their usage. But you cannot copyright names. You can also trademark slogans. Beyond that, every person has a right to control displays of their image or name. That's a matter of personal privacy and business value (and as opposed to IP law, its tort law: see, Restatement (2nd) of Torts ss 652A-652I). I couldn't take my law firm's name and put it on a t-shirt and put William Shatner's picture next to it because I would be appropriating Mr. Shatner's image and the goodwill associated with it for my benefit and be suggesting he supports or approves of my firm.

Take this case example: if you asked for a t-shirt with a picture of Aaron Rodgers doing the "Discount Double Check" thing from whatever shitty insurance company made those ads and the text was "Aaron Rodgers with the Discount Double Check", you'd have two problems. For one, "Discount Double Check" is a trademarked slogan for that insurance company, so you'd be violating trademark law by using it without approval (unless you could show an exception). Second, you'd be appropriating Rodger's likeness with the picture and his name.

But that's all conceptual. I don't know what your t-shirt had on it, but I cannot imagine there would be a practical problem with doing a one-off t-shirt unless the company you used just had a really bright-line policy of not getting close to any lines. If you wanted to order 50, then yeah I would see a problem because you'd probably sell them. But if I wanted to make a single tshirt with a picture of Dirk and put "Der Grosste", I bet I could find a company to do that without any real practical problem
posted by dios at 8:41 AM on February 4, 2016


Ultimately, the NFL's copyright claims are likely over-stated. However, the NFL has notoriously been aggressive in trying to protect that copyright, including threatening to sue churches who show the game.

Yeah, well, we can't even manage to get a damned shield law passed for reporters at a federal level. More places than not lack SLAPP protection. Fair use? So what? It's an affirmative defense. By the time you raise it, if you're at all worth suing, you have to spend bare minimum a few hundred dollars to have your lawyer write back a "fuck off" letter. So as protection from large litigious organizations fair use is not of much use at all. Less safe harbor than last resort.

Also - I don't have it nearby, and it's not mine to distribute even if it did, but a friend of mine whose specialty is media law has a slide deck about the ways organizations are using access grants as a way to shaping coverage and protecting (maybe "protecting") their IP. You want to come take pictures? Here's the release, which says you can only use the photos for 2 weeks and after that they have to come down and you can't sell reprints. (Which is one I have gotten for sporting events) Or you grant us carte blanche usage rights for your photos for whatever promotional purposes we care to use them for.

I wouldn't be surprised to see the league using a combination of those agreements as well as treating their disclaimer as a click-through agreement to go after people using what they see on league broadcasts to create new competing entertainment. They don't have to prevail, they just need to make a good enough case to not get sanctioned.
posted by phearlez at 8:45 AM on February 4, 2016


I think there may be a lack of precision there. That's not a copyright issue.

Even organizations that should have a basis to know better seem to constantly conflate copyright and right of publicity. I grumped on my facebook page last week about this story about use of Offerman's face being used to promote public toilets in India, which included this blurb.
But in a nation where 60% of inhabitants still lack regular access to safe and sanitary toilets, if his face encourages anyone to start making the trek to this flush toilet, then this copyright theft basically amounts to unintentional humanitarian work by the Parks and Recreation actor.
If your business is news (or gossip, really) you ought to have a basic understanding of the difference between a person's right to control what they're endorsing and control over intellectual property they create. But... ¯\_(ツ)_/¯
posted by phearlez at 8:51 AM on February 4, 2016


But if I wanted to make a single tshirt with a picture of Dirk and put "Der Grosste", I bet I could find a company to do that without any real practical problem

When I made a t-shirt featuring the Cobra Kai logo with the fist replaced with the New England Patriots flying Elvis, they printed it no problem, but when it shipped I got an email saying I would not be permitted to reprint it due to trademark issues.
posted by Rock Steady at 9:00 AM on February 4, 2016


Roger Goodell’s Unstoppable Football Machine
For all the revelations about its brutality, pro football is more
popular and profitable than ever. How the N.F.L. commissioner
and a group of billionaire owners have kept the league on offense.

posted by mlis at 9:45 AM on February 4, 2016


I really enjoy the legal "restrictions" because I live in the East Bay and have not heard not seen "Super Bowl" mentioned AT ALL. And I like it that way.

‘‘The game has so many elements I think our country admires and respects,’’

As opposed to basketball? I.e. "more white people"? What makes the NFL any different from the NBA or MLB?

The Super Bowl: 4-5 hours of boredom (which is why it's far better when you are drunk, i suppose); 12 minutes of actual action; 90 minutes of commercials; aural assaults by past-their-prime performers with fireworks at halftime. No thanks.
posted by mrgrimm at 10:25 AM on February 4, 2016


The Super Bowl: 4-5 hours of boredom

I'm never bored during a Super Bowl. But then again I was a football freak from a young age, reading books about the seasons, and playing every chance I got as a kid. And a teenager. And a young man. And...if you want to meet up at the field this Saturday, let me know. I may recite the Autumn Wind at random times, and picture the image of Riggins busting through that arm tackle, or otherwise recount Facenda and NFL Films super long shots of spiraling footballs.

So when I'm watching the game, I'm contextualizing the plays and the moves from previous super bowls. Imagining what dead greats would think, excited by the cat and mouse game a la Sumner-Squirek & Washington's coaches, and in other moments remembering my own highlights on a much, much lower scale obviously. But I agree that if you never cared to play the game or just were completely uninterested, and never got to experience the thrill of outrunning a diving opponent, or intercepting a pass and running it back for a touchdown, or making catches impressive enough that it earns you a nickname, then perhaps it really would be a snooze fest. Drinking and getting drunk sure sounds boring to me, and I bet you'd tell the same stories about alcohol-fueled fun you've had, memories of drunk parents and friends, brands and bars and experiences it led you into. Meanwhile I'd be saying the same thing - No thanks.
posted by cashman at 8:42 PM on February 4, 2016


Roy and HG used to do this for major Australian football games and it was often devastatingly funny.
One player they named "The Brick with Eyes" went on to become a fringe party politician, and is still regularly called my that name in some parts of the media, to my delight.
posted by bystander at 11:32 PM on February 5, 2016


Okay, it's about an hour from The Big Game™ and I'm unclear on how to set up this thing: Will K&P be streaming the game with their commentary over it? Or will it just be footage of them on a soundstage, riffing, and I have to have something else set up to show the game, muted?
posted by ardgedee at 1:57 PM on February 7, 2016


I'm guessing you put this (attn: just started) up and mute your TV.
posted by lmfsilva at 3:02 PM on February 7, 2016 [1 favorite]


Okay, I've got the game on the TV and a laptop under the TV with K&P's live stream.

So far, the first seven-ish minutes has been entirely about their not being allowed to say anything involving the game. Legal Larry is going to be an offscreen character.
posted by ardgedee at 3:08 PM on February 7, 2016


Wonder if they're going to get flack for not paying the national anthem the respect some letter writers think it deserves.
posted by ardgedee at 3:18 PM on February 7, 2016


Their commenting was a bit behind when it came to the national anthem. Just me? The TV had gone to a commercial and they were acting as if the singing was still going on.
posted by The corpse in the library at 3:39 PM on February 7, 2016


Yeah, they're behind for me too. I figure there's some lag in the stream.
posted by yasaman at 3:40 PM on February 7, 2016


Hmm -- the delay might be enough for me not to watch. If it isn't going to be tied to the game as I watch it, I might as well watch the game live and listen to K&P later.
posted by The corpse in the library at 3:44 PM on February 7, 2016


Have to call bullshit on that conversation about barbecue. Charlotte is squarely tomato sauce territory, not mustard or vinegar.
posted by ardgedee at 3:51 PM on February 7, 2016


They seem to have given up on actual live commentary. They're just letting the game happen in the background and remark on it at random moments.
posted by ardgedee at 3:53 PM on February 7, 2016


Tangentially related: You might not be at The Big Game, but at least you're not paying $15 for a cup of beer tonight.
posted by ardgedee at 5:22 PM on February 7, 2016


And oh good lord: For halftime K&P are parodying the Puppy Bowl.
posted by ardgedee at 5:23 PM on February 7, 2016


Anyone have a, um, backup, of this performance? Or is it archived somewhere? The YouTube link in lmfsilva's comment is now private.
posted by filthy light thief at 8:24 PM on February 7, 2016


They seem to have given up on actual live commentary. They're just letting the game happen in the background and remark on it at random moments.

Based on some comments they dropped here and there, it seemed to me like K&P were Carolina/Cam fans and had been planning on the game being a blowout in the Panthers' favor. When things didn't happen that way, it may have deflated their interest. This was a great idea though. I wish they'd do it for the Oscars too but that might look like they're stepping on a fellow comedian's toes.
posted by fuse theorem at 5:52 AM on February 8, 2016


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