back to article Take off, ya hosers! Silicon Valley court says Google can safely ignore Canadian search ban

No, funnily enough, US tech monster Google doesn't have to obey a Canadian court order in America, a judge in the ad giant's home turf of California ruled this week. Google had asked a US federal district court in San Jose for an injunction banning Canadian router-maker Equustek from enforcing, in the United States at least, a …

  1. Anonymous Coward
    Anonymous Coward

    I don't get it. The router maker made enough of a case for Google to delist the counterfeits in Canada, but not anywhere else? And they claim free speech will be infringed if they do? Can someone please explain the legal reasoning behind this?

    1. Yet Another Anonymous coward Silver badge

      The company alleges the infringement is in Canada, its trademark is in Canada. It wants Google to remove ads which would be illegal in Canada from everywhere else in the world.

      Imagine if Saudi Arabia was allowed to order Google to remove ads for products which would be illegal in Saudi from Google results in the rest of the world ? Now repeat for every jurisdiction.

      The company could ask the US court to remove the ads from Google in the USA but IIRC either they didn't have a trademark in the US or the counterfeit goods weren't sold in the US. Their complaint was only that Canadian buyers were searching on Google.COM for the fakes.

      A similar case came up where Canadian election results are banned until the poles are closed 5 time zones away - but are of course available on US sites.

      1. The_Idiot

        Hmmm...

        "Imagine if Saudi Arabia was allowed to order Google to remove ads for products which would be illegal in Saudi from Google results in the rest of the world ?"

        Well, yes. Or imagine if US courts decided companies had to give up data held on servers in other countries, where giving up the data was illegal. Or if US courts sequestered domain names no matter where they'd been registered. Never mind the Foreign Account Tax Compliance Act.

        No. We can;t have countries assuming their laws apply wherever they feel like it, now can we? Sigh...

        1. Yet Another Anonymous coward Silver badge

          Re: Hmmm...

          That's different, Google is a US registered company it is subject to US jurisdiction and so can argue in US courts about whether a US warrant for overseas data is legal.

          This is Canada trying to say that a Canadian judgement against a US company in Canada is binding on the US company's operations in the USA and the US company is saying - no the USA law (free speech) applies there.

          It isn't always automatically that only the foreign law applies in the foreign country. A US (or UK) court can prosecute a US (UK) citizen or registered corp for doing things abroad which are illegal at home - even if legal in that country. So if the search results were appearing on the .com site of a Canadian search company then Canada might have more power to stop them.

          1. DougS Silver badge

            Re: Hmmm...

            Well, Google has a subsidiary that is a Canadian company - Google Canada.

            Now the HQ is in the US, but that's a finer distinction. If Google were a company that operated solely in the US, and just made itself available in other countries via the internet then trying to enforce something like this worldwide would be ridiculous. But they do business in Canada, selling ads there and stuff. The Canadian court has no power over Google US, but they could make life very difficult for Google Canada, up to and including legally banning them from conducting business in Canada if they fail to do as the court ordered them.

            I agree completely though that this is a slippery slope from "they are indexing sites selling counterfeit versions of our stuff" on down the line to where it is "they are indexing images of Muhammed" which a few countries might have a problem with. Not to mention what leaders with nearly unlimited power like Putin, and truly unlimited power like Kim Jong Un might want to do with sites/news that say negative things about them. Fortunately there is no Google North Korea for him to be able to apply pressure on.

            1. Richard Jones 1

              Re: Hmmm...

              Please add Trump to the wish list of sole purveyors of 'information' along with those other purveyors of (iron) fairy stories.

              1. Someone Else Silver badge
                Alien

                @Richard Jones 1 -- Re: Hmmm...

                Please add Trump to the wish list of sole purveyors of 'information' along with those other purveyors of (iron) fairy stories.

                We could go even further and block Drumpf as an ersatz US president.

                1. Tomato42 Silver badge
                  Black Helicopters

                  Re: @Richard Jones 1 -- Hmmm...

                  to downvoters of @Someone Else: https://en.wikipedia.org/wiki/Ersatz_good

                  icon as something obviously flown over somebody's head

                2. Anonymous Coward
                  Anonymous Coward

                  Re: @Richard Jones 1 -- Hmmm...

                  Hmm, lets go one better and STOP bringing fucking politics to stories that have NO relevance to Trump or any other sodding political figures.

                  Just give it a fucking rest and take your asinine views elsewhere.

                3. TomG

                  Re: @Richard Jones 1 -- Hmmm...

                  Give it up, Trump was duly elected and is the PRESIDENT.

                  1. Kiwi Silver badge
                    Trollface

                    Re: @Richard Jones 1 -- Hmmm...

                    Give it up, Trump was duly elected and is the PRESIDENT.

                    Not for long most likely.

                    (Notice he chickened out from his usual crap when within easy firing range of Nork missiles. I'd say he dropped his nuts but don't think he has any)

          2. heyrick Silver badge

            Re: Hmmm...

            "Google is a US registered company it is subject to US jurisdiction"

            Newsflash - it's also subject to the juridictions of the individual countries in which it operates.

            1. DougS Silver badge

              @heyrick

              Newsflash - it's also subject to the juridictions of the individual countries in which it operates.

              No, its not. If I started a business making widgets, and I put them on eBay offering to ship anywhere in the world, and you found you were able to buy one even though widgets are illegal in your country, your country can't do shit to stop me selling them, nor should it be able to. If eBay has a subsidiary in your country then maybe they could get eBay to stop listing them in your country, but they sure as hell couldn't stop eBay from listing them anywhere else since your laws don't extend to the entire world.

              Google is only subject to the jurisdictions of the individual countries in which it operates to the extent that it has subsidiaries that do business there. But if Google is indexing my web page for product information on my widgets, that includes a link to eBay for buying them, your country should not have the power to ban Google from indexing my page worldwide just because YOUR country has a law against possessing widgets.

              1. Anonymous Coward
                Anonymous Coward

                Re: @heyrick

                If I started a business making widgets, and I put them on eBay offering to ship anywhere in the world, and you found you were able to buy one even though widgets are illegal in your country, your country can't do shit to stop me selling them, nor should it be able to.

                Ah yes. I am sure Mr Bout will be happy to hear of your legal opinion, and will be grateful for you support in springing him from jail.

                Where he rightly belongs, despite his widgets being legal(ish) in the country he was selling them from.

                1. DougS Silver badge

                  Re: @heyrick

                  Viktor Bout is a totally different situation, that's criminal law and dealt with an individual. You can't extradite a corporation.

                  1. Adam 52 Silver badge

                    Re: @heyrick

                    Ok, if Viktor Bout doesn't work for you, how about David Carruthers?

                    Or Manuel Noriega.

                    Or Marcus Hutchins.

                    Or any of the many people disappeared by the CIA in Europe.

            2. TomG

              Re: Hmmm...

              Only if that company has a physical presence in that country.

        2. Ian Michael Gumby Silver badge
          Boffin

          @The idiot ... Re: Hmmm...

          Not quite.

          You have a company in Canada who manufactures a product where someone is selling a knock off product that is questionable and harming the brand. (Not that I ever heard of these guys...)

          While on the surface of your argument ... that this becomes a jurisdictional issue and a Canadian Court has no jurisdiction in the US... it would make sense.

          However, you have some other things that need to be considered.

          WTO gets involved because its a question of selling a knock-off.

          The Canadian company could take their win in Canada and then sue Google in the US. Provided that the company has a distributor or distributors in the US. The the company can sue Google in the US.

          IMHO Google will lose.

          The problem is that the company tried to shorten the process and it cost them.

      2. Anonymous Coward
        Anonymous Coward

        Just follow the law, Google, why won't you?

        The company alleges the infringement is in Canada, its trademark is in Canada. It wants Google to remove ads which would be illegal in Canada from everywhere else in the world.

        Actually, no. The only thing Equustek wants is for Google to follow the ruling of the Canadian court, and stop presenting links to fake copies of their products when searched for in Canada. Nothing more - but also nothing less.

        For some reason, Google seems to believe that it is OK to obey court decisions on their national domains, while still breaking the law if the search request is submitted in the same jurisdiction but through their google.com domain (they certainly took this position for the EU right to be forgotten).

        That position is rather obviously bullshit: both www.google.com and www.google.ca resolve to the same set of IP addresses; Google obviously also has a pretty good idea of where I am when I access their .com domain - both through my IP address and through the geolocation API in the browser. They have all technical means of complying with the law (and yes, I have at least three different ways of bypassing these checks if I really want to - but then, I will be potentially breaking the law, not Google - so it would be my problem, not theirs).

        If G wants to stay as a global, rather than just the domestic US company, sooner or later it will have to learn how to play by the rules. So far, it's position was to follow the letter of the local rules as narrowly as possible, while flouting their intent. If it continues the way it operates now, then it won't be just the patience of the Chinese government running out - and governments, both democratic and otherwise, can be very persistent and persuasive at getting what they want.

        I am pretty sure this point of view won't be too popular here on ElReg - but it needed to be said.

        1. ratfox Silver badge

          Re: Just follow the law, Google, why won't you?

          Actually, no. The only thing Equustek wants is for Google to follow the ruling of the Canadian court, and stop presenting links to fake copies of their products when searched for in Canada. Nothing more - but also nothing less.

          You are mistaken. The decision of the Canadian court was that Google should stop showing these links, in all countries, to all users.

          1. Anonymous Coward
            Anonymous Coward

            Re: Just follow the law, Google, why won't you?

            Actually, no. The only thing Equustek wants is for Google to follow the ruling of the Canadian court, and stop presenting links to fake copies of their products when searched for in Canada. Nothing more - but also nothing less.

            You are mistaken. The decision of the Canadian court was that Google should stop showing these links, in all countries, to all users.

            Thank you for the correction. You are absolutely right - the injuncton is presently world-wide.

            One can read the full judgement of the Supreme Court of Canada here, and it is a very well resoned and readable text. Personally, I found it easier to read and follow that the Reg article reporting on the decision. It also includes a dissenting opinion from two of the judges.

            Interestingly, from reading the judgement, one gets the feeling that Google brought it upon themselves by not treating the lower courts seriously. The Court was unanimous in ruling that the trial court had the jurisdiction to grant the injunction - so no error in law was made. The Court's reasoning is in the decision, so go and read it. My personal undersfanding of the reasoning is that the injunction initially came from litigation between two Canadian companies, where the trial court had full jurisdiction. The injunction against Google, which was not a party to that litigation, was made to prevent one Canadian company doing irreparable harm to another Canadian company pending the trial court's final decision. Curiously, the initial injunction was not world-wide.

            In a typical Google fashion, G only implemented the court's injunction on the .ca domain, while ignoring it on the .com and all other national domains accessible in Canada. Not surprisingly, the trial court was not amused, and then made the injuction worldwide. As the Supreme Court also points out, G acknowledges that it has the technical means to implement the injunction, and has not presented any evidence that doing so will cause it harm, material loss, or make it break the law in any jurisdiction where G operates. The Court also points out that should such evidence become available, G must approach the trial court to have the injunction varied, not litigate to the Supreme Court.

            The only points where the Court had a dissenting opinion were on whether the injunction in an effective remedy and whether it pre-judges the final outcome of the trial court's proceedings.

            Personally, I am with the Court on this one. Google is not asked to break the law anywhere it operates, or to expend money or resources. Google's actions, while not illegal in themselves (the Court stresses this point), cause an irreparable harm to a third party. That party sought and obtained the legal relief from the courts, which had the jurisdiction to grant it. So Google's position is nothing but grandstanding, bordering on disrespect of the Canadian justice system.

            Sorry, G. Just start following the law like everybody else does, and save yourself some future trouble.

        2. Anonymous Coward
          Anonymous Coward

          Re: Just follow the law, Google, why won't you?

          If G wants to stay as a global, rather than just the domestic US company, sooner or later it will have to learn how to play by the rules.

          Er, no, this is not how such big companies make their money. They make their money by enthusiastically overstepping the rules which only serve to hamper their competition, and they will only stop doing that if they get fined into oblivion - as far as I can tell, that's the American Way. Facebook, Twitter, Google - all known damn well we have privacy laws but they will ignore them as long as possible, because it builds the cash to fight off court cases and lobby for changing laws in their favour.

          It's not exactly a new approach, including lying about it in marketing where phrases such as "to protect you we need .." are used to extract even more data.

        3. TomG

          Re: Just follow the law, Google, why won't you?

          Don't know the rules in Canada. Here in the U. S. a Judge has to follow the letter of the law while a jury can follow the intent.

      3. This post has been deleted by its author

        1. TomG

          Polls, not poles.

        2. Eltonga
          Headmaster

          "poles are closed 5 time zones away"

          "The poles are in all time zones!"

          Well I'm pretty sure it was a typo and the OP just meant polls instead of poles. And FWIW, I understand you meant poles as in the geographical meaning rather than than the one that has to do with the people natural to Poland.

          1. Stoneshop Silver badge

            the people natural to Poland

            You'll find those in all time zones too. As builders, painters, plasterers and such

          2. TomG

            Poles could be used to measure distance also.

        3. Alistair Silver badge
          Windows

          .... until the poles are finished drinking 5 time zones away......

      4. TomG

        The word is polls, not poles.

    2. Steve Davies 3 Silver badge

      Simple really

      US Law applies to the entire planet.

      No laws from other countries apply to the USA and the US Judiciary will go to just about any length to keep it that way. Just look at how many criminals get extradited from the USA to face the music elsewhere.

      Once you understand that pretty well everything that Google, FB, MS and the rest do makes perfect sense.

      1. Anonymous Coward
        Anonymous Coward

        Re: Simple really

        "US Law applies to the entire planet."

        No. The US likes to pretend it does. Rather large difference...

      2. John Lilburne

        Re: Simple really

        Meanwhile a federal court has enjoined Google to remove search results for copyright infringing site SciHub:

        https://torrentfreak.com/us-court-grants-isps-and-search-engine-blockade-of-sci-hub-171106

        1. Kiwi Silver badge
          Thumb Up

          Re: Simple really

          Meanwhile a federal court has enjoined Google to remove search results for copyright infringing site SciHub:

          SciHub? Never heard of it. Must take a closer look at it, and pass on the URL to some friends who may be interested. Thanks..

          (What was that about some mildly famous woman who didn't want people looking at her house or somink?)

      3. TomG

        Re: Simple really

        Generally speaking any laws of any country only apply to that country. The U. S. is no different from any other country. Treaties' are different in that one country can agree that another countries law or laws will have effect is each country.

    3. Anonymous Coward
      Anonymous Coward

      Can someone please explain the legal reasoning behind this?

      @BJ, I'm surprised that you as resident representative of the redneck community can't see that a US company NEVER wants the US approach to law enforcement ("our laws are valid everywhere") applied to the US itself. There's a simple reason for that: they would then have to spend even more money (read: have less profit) on buying the laws they need.

      They would have to start lobbying in every country with a sane government to retain some measure of control. These guys follow the Microsoft playbook and history to the letter, so they already know that that is not sustainable, at least not if they want to stay as profitable. The only thing they want from other countries is every scrap of data on its citizens they can get hold of, and definitely as few restrictions as they can get engineer.

    4. Anonymous Coward
      Anonymous Coward

      "Google had asked a US federal district court in San Jose for an injunction banning Canadian router-maker Equustek from enforcing, in the United States at least, a Canadian court order that demanded the removal of web search results linking to counterfeit gear."

      Why would they try and enforce a Canadian court order in the US courts?! Just enforce it in Canada with fines and compensation until it's complied with.

  2. Anonymous Coward
    Anonymous Coward

    Oh, OK. No problem. Thank you very much, California district court. And sorry to have put you to all that trouble, Google.

    Cheers,

    A Canuck

  3. bombastic bob Silver badge
    Unhappy

    Disturbingly...

    Disturbingly, Google is actually *CAPABLE* of removing/blocking specific search results for Canadian citizens.

    (they said they would comply with the request, in Canada, after all)

    OK - doesn't this demonstrate that Google is capable of giving "unfair" result, too? I just wanted to point that out.

    1. DougS Silver badge
      WTF?

      Re: Disturbingly...

      What, this is a revelation to you, that Google controls its own search results? Where did you think they got them, a unicorn whispering in an elf's ear who then typed the response back to you??

    2. Ian Michael Gumby Silver badge

      @Bob .. Re: Disturbingly...

      Curiously, the Canuck supremes said not only could the router maker keep its injunction against Google, but also that the injunction can be enforced worldwide to protect the Canadian Equustek's interests, meaning Google had to start deleting the links for all of its users on the planet.

      So... this isn't about just stopping Canadians from seeing ads from dodgy kit.

      Its to stop the world from seeing ads to see dodgy kit.

      If the company wanted to, they could go back the the courts because Google is not being compliant.

      While the Canadian Courts may not enforce its order against Google US to block the world, they can order Google CA to do so. They could impose fines and penalties against Google CA or worst case... ban Google from doing business in CA.

      Then there's the issue of Trade. However since its not Google who's selling the kit, the company would have a hard time...

      But in any country where the company has a distributor or distributors, they can sue Google and could use the Canadian court's verdict as evidence. IMHO They would win and could negotiate a deal with Google to block the ads where their kit is legally sold.

      The problem is that the Canadian company tried a short cut and Google is big enough to hire better lawyers who can make arguments against them doing the right thing,

  4. Johnny Canuck

    Hmmm

    I think the order still stands in Canada. So if Google execs were to travel to Canada they might be liable to arrest.

    1. Voland's right hand Silver badge

      Re: Hmmm

      So if Google execs were to travel to Canada they might be liable to arrest.

      This is in addition to the local ones being liable for a contempt of court.

      On more than one count - it can geo-fence the source to ensure that .ca gets the right result regardless of which target domain is being queried.

      1. Doctor Syntax Silver badge

        Re: Hmmm

        "This is in addition to the local ones being liable for a contempt of court."

        More likely they'd fine the local Google office for contempt.

    2. Anonymous Coward
      Anonymous Coward

      Re: Hmmm

      I think the order still stands in Canada.

      You bet it does. It will be an interesting day when a ruling from a district court court in California trumps a decision by the Supreme Court of Canada on Canadian soil.

      Google is simply digging a deeper hole for themselves by demonstrating an open contempt of court. I rather doubt this approach will help them in their future dealings with Canadian courts.

  5. Anonymous Coward
    Anonymous Coward

    Equustek should call their routers "movies" ...

    ... then G will fall over backwards removing all links to counterfeit pirate copies of their equipment "movies", world-wide.

    Problem solved.

  6. Grease Monkey

    As usual the US courts expect their own decisions to be enforced globally, but not the reverse. If the US courts think this is reasonable then isn't it about time the rest of the world started to ignore US patent and copyright rulings?

    1. PushF12

      Realpolitiks

      The US has the soft touch of the CIA and the hard punch of their carrier battle groups.

      1. Steve Davies 3 Silver badge

        Re: Realpolitiks

        Even El Trumpo would not be so silly as to attack a fellow NATO member.

        1. Stoneshop Silver badge
          Facepalm

          Re: Realpolitiks

          Even El Trumpo would not be so silly as to attack a fellow NATO member.

          No, he would withdraw from NATO first.

          1. Tomato42 Silver badge

            Re: Realpolitiks

            that would not disband NATO

            1. Stoneshop Silver badge
              Headmaster

              Re: Realpolitiks

              that would not disband NATO

              And? Note that after withdrawing from NATO, the US would not be attacking a NATO partner if Trumpolini decided to militarily mess with Canada. That the other NATO members would then be obliged to support Canada in this is another matter.

              1. Anonymous Coward
                Anonymous Coward

                Re: Realpolitiks

                That the other NATO members would then be obliged to support Canada in this is another matter

                That quite funnily also includes AirStrip One which still has 4 subs with nuclear missiles (only one of them ready to launch though).

        2. Anonymous Coward
          Anonymous Coward

          Re: Realpolitiks

          Even El Trumpo would not be so silly as to attack a fellow NATO member.

          A NATO member is perfectly free to start a war with another NATO member, provided that it claims to act in self-defence and in response to an attack (of course, it does not really matter whether this claim is true or not - the fog of war will take care of the little details). Article 5 of the NATO treaty suffers from the barber paradox, and becomes meaningless under these circumstances.

    2. Anonymous Coward
      Anonymous Coward

      "then isn't it about time the rest of the world started to ignore US patent and copyright rulings?"

      They do already. They are irrelevant in other jurisdictions.

      1. TomG

        The only "laws" relevant in other jurisdictions are "laws" contained in treaties. By this method some U. S. "laws" are relevant in other countries and some "laws" in other countries are relevant in the U. S. .

    3. TomG

      You seem to be confusing laws with treaties.

  7. Kiwi Silver badge
    Happy

    Yay! No more DMCA notices!

    Great! Gets annoying trying to find a bit of info on something and getting those 'result removed under DMCA rubbish' notices.

    Since I'm in Kiwiland, and the yanks have ruled that Google doesn't have to apply national laws internationally, I look forward to seeing them disappear from my search results.

    (Ok, since I use DDG mostly they've already disappeared anyway...)

    1. Anonymous Coward
      Anonymous Coward

      Re: Yay! No more DMCA notices!

      "Gets annoying trying to find a bit of info on something and getting those 'result removed under DMCA rubbish' notices."

      Just read the links to the notices and they will helpfully tell you what was removed and where to find it!

  8. mark l 2 Silver badge

    I assumed that since Canada has its own Google.ca domain, Canadian users would be redirected to that if they tried to go to Google.com just like I am redirect to the .co.uk domain if i try to access the .com.

    1. Anonymous Coward
      Anonymous Coward

      "I assumed that since Canada has its own Google.ca domain, Canadian users would be redirected to that if they tried to go to Google.com just like I am redirect to the .co.uk domain if i try to access the .com."

      Wouldn't make any difference. The requirement was to remove these results for all users anywhere.

  9. 10111101101

    No matter how you swing this, it comes down to Google protecting revenue over copyrights. If some decided to advertise a competing search service as Foogle, Uoogle, Coogle or Koogle on Google, Google will act swiftly to removed or reject such content!

  10. Peter Danckwerts

    If one puts the jurisdiction question on one side for a moment, it would be good to see Google putting as much effort into fighting piracy as it has into fighting this case.

    1. Anonymous Coward
      Anonymous Coward

      it would be good to see Google putting as much effort into fighting piracy as it has into fighting this case.

      Oh? Do they have any ships near Somalia then? Or do those balloons of them do more than just create a WiFi cloud to make it easier to access people's personal data?

      /confused :)

  11. mhenriday
    WTF?

    In «America» ?

    «No, funnily enough, US tech monster Google doesn't have to obey a Canadian court order in America, a judge in the ad giant's home turf of California ruled this week.» Isn't Canada in America ?...

    Henri

    1. Anonymous Coward
      Anonymous Coward

      Re: In «America» ?

      Isn't Canada in America ?

      It is, as you very well know. However, for some reason the USAians tend to get their knickers all knotted up when anybody points out that theirs is only the second-largest country on that continent, and that it shares it with 22 other independent countries.

      1. TomG

        Re: In «America» ?

        Been living in the good old USA for 78 years. Never met anyone that got "their knickers all knotted up when anybody points out that theirs is only the second-largest country on that continent". BTW, it is generally accepted that the TWO Americas are comprised of two continents.

        1. Anonymous Coward
          Anonymous Coward

          Re: In «America» ?

          Been living in the good old USA for 78 years. Never met anyone that got "their knickers all knotted up when anybody points out that theirs is only the second-largest country on that continent".

          The lady doth protest too much, methinks.

    2. TomG

      Re: In «America» ?

      Canada is in North America (as opposed to South America). Since the official name is The United States of America the short reference became America. I suppose if Canada had an official name of The United States of Canada America the it could be refereed to as America. Could get confusing. For example, Mexico is officially The United States of Mexico. Add America to the name then they could be called America also. And so on.

  12. Anonymous Coward
    Anonymous Coward

    So in summary...

    Google want to carry on making money by pushing ads for counterfeit goods?

    So business as normal then.

    Got it.

  13. post-truth

    "Judging" by the last 13 years of US case law, the lower court judgment routinely will be appealed to the 9th Circuit. The 9th Circuit is generally very good on private international law, and routinely reverses any decisions undermining comity in almost any context. Then the Supreme Court will either find a way to refuse to hear the appeal by technicality-farming (cf Yahoo), or hear it very solemnly and duck the issues with filibuster-like waffling of unsurpassed elegance (cf Aerospatiale), very loosely boiled down to "sod off, yeah sure we can't think of any way to avoid hearing this case but we refuse to disturb the court of appeal finding however silly it might seem to us and everyone else because for the Supreme Court to endorse our own Courts' refusals to follow others' rulings would end the rule of law in international transactions and make us an obvious rogue state and thus defeat public policy".

    Simple enough. But who knows what happens this time? Make no mistake, it's important. Not because of the issues here, which are not existential for Google. But because next year we have the GDPR, which is. No doubt that's what Google is thinking, too...

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