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Nintendo The Courts Wii Games

Man Fined $1.5 Million For Leaked Mario Game 287

Posted by Soulskill
from the sorry-about-your-luck dept.
An anonymous reader writes "A Queensland man will have to pay Nintendo $1.5 million in damages after illegally copying and uploading one of its recent games to the internet ahead of its release, the gaming giant says. Nintendo said the loss was caused when James Burt made New Super Mario Bros Wii available for illegal download a week ahead of its official Australian release in November of last year. Nintendo applied for and was granted a search order by the Federal Court, forcing Burt to disclose the whereabouts of all his computers, disks and electronic storage devices in November. He was also ordered to allow access, including passwords, to his social networking sites, email accounts and websites."
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Man Fined $1.5 Million For Leaked Mario Game

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  • Pro-piracy (Score:4, Insightful)

    by sopssa (1498795) * <sopssa@email.com> on Tuesday February 09, 2010 @07:55AM (#31070484) Journal

    I often see many pro-piracy comments on slashdot on these things (probably also because pirates are more interested on the matter). But many times these are actual damages caused to companies. Putting out that game a week before surely counted a lot of illegal downloading and people not buying the game. Sure it's bad to for him, but those are the lost money for Nintendo. What's so wrong about them suing him?

    • Re:Pro-piracy (Score:4, Interesting)

      by anss123 (985305) on Tuesday February 09, 2010 @08:00AM (#31070504)

      What's so wrong about them suing him?

      There's nothing wrong with them suing him.

      The Pro-piracy comments you've seen is (probably) more directed towards "freedom" as the technologies/laws that limits piracy also limits that much valued freedom.

      Ergo pro freedom = there will be piracy

      • Re:Pro-piracy (Score:5, Insightful)

        by Alphathon (1634555) on Tuesday February 09, 2010 @08:27AM (#31070668)
        Exactly. I don't think I've seen that many people on here advocate piracy, it's usually anti-anti-piracy laws, such as the proposed UK law where suspected filesharers can be cut off without trial, disproportionate fines (especially from the RIAA) or the treating of bittorrent as illigal regardless of what's being shared (open source software etc). This can't really be treated as any of those. It would seem that the fine is roughly equivalent to 15000 copies of the game. That's assuming none is added for the crime, so it seems like a fairly reasonable fine. The only possible problem I can see is that he had to give over access to social networking sites etc. as that has little to do with the crime.
        • by Jaktar (975138)
          Except the social networking sites that he used could have been used to discuss how/when/where to distribute the leak. It's all part of discovery.
        • Re:Pro-piracy (Score:4, Insightful)

          by hairyfeet (841228) <{bassbeast1968} {at} {gmail.com}> on Tuesday February 09, 2010 @12:32PM (#31073404) Journal

          Not to mention most of us are for fair copyright terms but fair was about 20 miles back and we have gotten into so disgustingly greedy it is ridiculous. I can point out what is wrong with this picture in a single sentence....Steamboat Willie is STILL under copyright. The man has been dead for nearly a half a century, yet one of his FIRST works, made when planes were made of cloth and antibiotics were but a dream, is STILL under copyright.

          There is a big fucking difference between fairly compensating the author so he/she can produce more art (which was the whole point of copyright, to enable those that create art incentive to create new works, which would then become ours through public domain) to allowing multinational corporations to pervert our system with treasonous bribery to create a license to steal. So while I am not a pirate, those that are? Really don't care. They robbed US FIRST, by stealing our public domain away from us, our kids, our grandkids, etc, and by locking our entire culture up behind a paywall. Copyrights were a contract, and the contract has been broken. "Forever minus a single day" is NOT limited copyrights, and until it changes and We, The People, get a spot at the negotiating table I can understand why folks wouldn't care about copyrights. After all, all they are doing is stealing from thieves.

        • Re: (Score:3, Insightful)

          by BikeHelmet (1437881)

          Exactly. I don't think I've seen that many people on here advocate piracy, it's usually anti-anti-piracy laws, such as the proposed UK law where suspected filesharers can be cut off without trial, disproportionate fines (especially from the RIAA) or the treating of bittorrent as illigal regardless of what's being shared (open source software etc). This can't really be treated as any of those. It would seem that the fine is roughly equivalent to 15000 copies of the game. That's assuming none is added for the crime, so it seems like a fairly reasonable fine. The only possible problem I can see is that he had to give over access to social networking sites etc. as that has little to do with the crime.

          Plus, most people here would only advocate it when it's obvious there's no losses.

          Like TV shows. Many people here torrent TV shows. When's the last time you let an ad influence your purchasing decisions? A lot of us won't, so why cost the companies money, while also annoying yourself with ads? Plus, after watching a good TV show, many people talk about it. The overall net result is more viewers, even if the pirates provide no direct financial gain, and even if you feel they shouldn't have access to that con

      • Re:Pro-piracy (Score:4, Insightful)

        by paeanblack (191171) on Tuesday February 09, 2010 @09:36AM (#31071146)

        There's nothing wrong with them suing him.

        He should go to jail. He used the special access his job gave him to steal from Nintendo. Yes, I used the s-word. Redistributing unpublished content is theft...he stole something valuable and monetizable from Nintendo (the right of first publication), and they don't have it anymore.

        What he did was deliberate and premeditated. He abused a position of trust. There is no "Haha, just kidding" defense or excuse for this crap. This kind of shit severely weakens the man-years of effort expended towards fixing broken copyright laws.

        He's not cute. He's not funny. He's a criminal.

        • by tzanger (1575)

          Totally agreed, and this is one of the main reasons why I am so against special "electronic" versions of already-existing laws.

          If I am recording content from my legitimate cable TV connection and consuming it in my own home, with my friends and family, it should not matter if I am using the cable company's hardware or my own. The second I take that data and publish it (torrent, for example) nail my ass to the wall with existing copyright and/or distribution laws. There's no need for a special "digital" ver

        • by TJamieson (218336)

          Ok, and I agree to that, but why do they get his passwords and access to various online accounts? Is his Facebook account really relevant to this? THAT is the real scary part -- not that a dude got busted for doing something illegal, but that once busted the 'authorities' decided they should get access to everything in his life.

          • Re:Pro-piracy (Score:4, Interesting)

            by qubezz (520511) on Tuesday February 09, 2010 @12:53PM (#31073806)

            More chilling - a corporation with suspicion of someone not 'busted' can get a court to confiscate every computer and device someone owns, and force them to turn over every password to every account they have so the company can root around for evidence for a civil matter (copyright infringement).

            Maybe when the MafIAA alleges an IP address that might have been assigned to you at some point was infringing, and gets the thugs to toss your place and take anything they want and look at all your emails, texts, and friends online you might then want to complain, but you won't own anything electronic anymore to complain with.

        • Re: (Score:2, Informative)

          by Svartalf (2997)

          Was Nintendo deprived of the game completely? No?

          Then it was breach of trade secret or infringement that the person that we're discussing is guilty of, not theft. It's neither correct nor insightful to call it stealing- because, sadly, it still isn't that.

          • Re: (Score:3, Insightful)

            by AK Marc (707885)
            Gee, and I thought that he physically took an unreleased game disk without permission. I guess the Chinese spy didn't steal any secrets, he just committed minor infringement, and he should be released to China so as not to clog up our jails, courts, and prisons.
        • Re:Pro-piracy (Score:5, Insightful)

          by steelfood (895457) on Tuesday February 09, 2010 @11:40AM (#31072576)

          No, that's still not stealing. It's still copyright infringement. If he say, stole the disc from his company and kept it in a vault, then that would constitute theft. Otherwise, it's still copyright infringement.

      • Re: (Score:3, Insightful)

        by rhsanborn (773855)
        Unfortunately, most of the comments I see tend to be freeloaders hiding behind a banner of freedom so they can feel all warm and fuzzy inside when they blindly download dozens of games without paying for them.
        • unfortunatly nothing is so clear cut. There are three types of downloaders:

          a) A person wanting to try out a game, but the trial versions are inaccesible for some reason or another. Or maybe he wants to test it on his rig, to see if the "final" product performs well on his rig as there may be some differences between trial and final versions. He illegally downalods, finds he likes the game and it runs well on his system, then buys it. In this case it is not a lost sale, and in fact can be argued that the ill

        • by suso (153703) *

          Unfortunately, most of the comments I see tend to be freeloaders hiding behind a banner of freedom so they can feel all warm and fuzzy inside when they blindly download dozens of games without paying for them.

          DING DING DING! You are absolutely right.

    • Re:Pro-piracy (Score:5, Insightful)

      by Feef Lovecraft (1231264) <feeferscatNO@SPAMgmail.com> on Tuesday February 09, 2010 @08:03AM (#31070524) Homepage
      Having RTFA I'd be more intrested in how he obtained this advanced copy of the game for distribution, was it as simple as importating it from another region where it had been released or was it a lapse in security that enabled him to get hold of this game?
      • Re: (Score:3, Interesting)

        by Thansal (999464)

        I was going to write a post about that as well, and wondering why it would matter for an AUS release, as they actually have laws (or had, I assume they still exist) making region locking illegal, and thus importing media from else where a trivial matter.

        However, I then looked up the release dates of the game. Australia got it on Nov 12th, NA got it on the 15th, EU got it on the 20th, and JP got it on Dec 3rd.

        So, however he got it, he released it prior to ANYONE getting it, and probably in a region free ver

        • I was going to write a post about that as well, and wondering why it would matter for an AUS release, as they actually have laws (or had, I assume they still exist) making region locking illegal,

          That sounds odd, since they have laws regarding violent videogames and such. Certain games get banned. Wouldn't it make sense for them to condone regional banning and then just get game developers to comply with government regulation?

          • Re: (Score:3, Interesting)

            by Cimexus (1355033)

            It's true - region locking isn't permitted here. The most obvious manifestation of this is the fact that any DVD player you buy in Australia can play any region disc with no issues. Really pissed me off when I moved to the US for a few years and found I couldn't play any of my DVDs with a US DVD player except for the couple I had that were region 1 (I have an assortment of region 1, 2 and 4 DVDs, depending on which ones I could find cheapest on Ebay usually).

            Secondly we don't exactly have "laws against viol

      • Re:Pro-piracy (Score:5, Informative)

        by RockinRobStar (693613) on Tuesday February 09, 2010 @08:44AM (#31070756) Homepage
        He was a manager at a computer games store. I would imagine they sent copies early to his store so they had stock to sell on release day. (From what I understand it was a world first release date).
    • Re:Pro-piracy (Score:5, Interesting)

      by marcansoft (727665) <hector@@@marcansoft...com> on Tuesday February 09, 2010 @08:04AM (#31070526) Homepage

      And yet they still don't give a damn about piracy, technologically speaking, or at least they care about it a lot less than they care to annoy homebrewers and importers.

      Proof: the last three iterations of Wii System Updates closed exploits used to run homebrew, but an ancient exploit that is still being used for piracy has remained untouched for that long (and counting). More proof: it would be trivial for them to detect and block modchips at the system update level, but so far they haven't even tried. Even more proof: NIntendo seems to be happy deliberately bricking your Wii if you have imported it, but it certainly hasn't even crossed their mind to do that for people who pirate. Yes, System Update 4.2 deliberately bricked all Korean Wiis that had been switched to the USA or EUR region. And by this I mean an explicit if(korean_detected()) { show_error_code_on_boot(003); }.

      • by Bert64 (520050)

        Because it's all about money...

        People who modchip their machines to pirate games will either pirate or do without. If you make piracy impossible, your game sales will be largely unaffected but sales of the hardware and associated physical accessories will go down (pirates can't pirate the hardware so they have to buy it).

        People who play legitimate out of region games or homebrew are typically not interested in piracy, and want to do legitimate things such as playing cheaper (but still legit) games from abro

        • or buy additional devices to perform the functions that homebrew would achieve on a console

          I have run Wii homebrew once or twice, but now I really don't see the point. Back in the days of the original Xbox, a lot of people used to buy Xbox consoles just to run XBMC or other homebrew. That's no longer necessary now that Acer makes the Aspire Revo, a $200 PC the size of a Wii that runs a standard Windows or Linux operating system. Depending on the TV, you can use a $40 VGA-to-composite cable or a $10 HDMI cable.

          • by Bert64 (520050)

            As i said, to avoid having to buy additional devices...
            That $200 PC is unlikely to be very good for gaming, and few (if any) of the games will be designed for a wii style control method.
            Some of us might want both wii games *and* a media player without having to buy multiple devices.

            And just because you can...

            And most importantly, for the principle of it - you buy the device, you don't rent it, you should be able to use it for any purpose you see fit

      • Re:Pro-piracy (Score:4, Interesting)

        by xtracto (837672) on Tuesday February 09, 2010 @09:57AM (#31071372) Journal

        Hey marcan, first let me tip my hat for your work.

        Second, I use some of those "oh noes piratz" enhancing mechanisms to copy my legally purchased games to a USB hard disk and play them. Note that I bought my Wii console while living in Britain, I have bought games in Mexico (where I am from) and USA (cheaper to ask a relative to get them from there) AND Germany (where I am currently living and playing games).

        When I moved to Germany, I refused to take all my CDs/DVDs with me [Laugagge handlers at Lufthansa are a bunch of monkeys.. you should see the state of my bags when they arrived to Germany], therefore I put all the content (serveral music CDs, some DVD movies and several Wii games) into magnetic media and took them with me.

        Having said that, I really applaud Nintendo for doing this specific move, and I completely believe that this is the *right* move to combat piracy.

        It is not illegal to modify hardware you buy, it is not illegal to play a copy of your purchased media, however, IT IS illegal to distribute such media without copyright permit; and that is what Nintendo prosecuted with this guy.

      • Re: (Score:2, Insightful)

        by DeKO (671377)

        The funny thing is the homebrew community does much more to fight piracy than Nintendo. They ban any app that even remotely might be used to facilitate piracy. And still Nintendo goes after the homebrew.

    • by jamesh (87723)

      It's not so much pro-piracy, as anti-the-things-that-would-be-required-to-prevent-piracy.

      In order to make a song or movie uncopyable, you end up punishing the people who aren't breaking the law. It's been the same way with copy protection ever since it was invented - the pirates make a copy with the copy protection removed and distribute that, and the legitimate users have to put up with the inconvenience. The list is long...

      When software was distributed on audio tape for home computers, copy protection oft

    • and in every thread that even remotely involves IP i see you attacking strawmen and beating dead horses. so, what's your deal?
    • by X.25 (255792)

      I often see many pro-piracy comments on slashdot on these things (probably also because pirates are more interested on the matter). But many times these are actual damages caused to companies. Putting out that game a week before surely counted a lot of illegal downloading and people not buying the game. Sure it's bad to for him, but those are the lost money for Nintendo. What's so wrong about them suing him?

      There is nothing wrong with suing him.

      However, slapping him with US$ 1.5mil fine is pretty retarded.

    • by DeadCatX2 (950953)

      There's the standard arguments about: pirates weren't going to buy the game anyway; legitimate customers don't like to do illegal things to begin with; some people will buy it even after pirating it once it actually comes out; some people will play their friends' pirated version and buy their own.

      All of that aside...why do they need the passwords to his email/facebook/etc? That seems like a massive invasion of privacy. Would they ask for all of the snail mail correspondence that he's had for the last few

    • by brkello (642429)
      I agree with you. Other comments are saying people aren't pro-piracy, but they must be reading another Slashdot. Typically on these threads are every excuse under the sun to justify their piracy. Maybe this is different since it is 1) Nintendo and 2) is going after the distributer of piracy instead of the downloader.
    • Re: (Score:3, Interesting)

      by Dhalka226 (559740)

      Let me preface by saying that this case was actually a settlement and not a judgment, so my comments don't necessarily apply directly to this one case.

      What's so wrong about suing? Nothing. The problem most people have is how bogus and utterly life-ruining the amounts are. Most people won't be able to pay something like $1.5MM. Ever. Whether an individual cares about piracy or not, right there we have to stop and question whether or not literally ruining a person's life is justice being served. Just

  • by Anonymous Coward on Tuesday February 09, 2010 @07:58AM (#31070494)

    Quick, we need a plumber.

    • by anss123 (985305) on Tuesday February 09, 2010 @08:07AM (#31070544)

      Quick, we need a plumber.

      It has always amused me that the most popular video game character by far is a "fat Italian plumber" instead of mister "awesome cool superdude".

      • Re: (Score:3, Interesting)

        Recentrly, Spain's Plumbers association honored Mario [kotaku.com] "For 28 Years Of Plumbing Accomplishments"
  • Proportionality. (Score:5, Insightful)

    by headkase (533448) on Tuesday February 09, 2010 @08:12AM (#31070580)
    There should be some kind of proportion to the damages, seriously that amount ruins an ordinary person for the rest of their life. Did the court deliberately set out to give him a life sentence of sorts? And if the amounts are to be set at company rates for individuals he should have his own choice just to do some time for it. Seriously, go on a walk for 3 years and move on in your life instead of being sentenced to financial death for the rest of your natural time.
    • Re: (Score:2, Interesting)

      by Grantbridge (1377621)
      That's why bankruptcy laws were introduced!
      • by Chrisq (894406)
        Well he might as well take his credit cards and have a big party now .... nothing to loose
      • Re: (Score:3, Informative)

        by Anonymous Coward

        In most countries bankruptcy does not delete money owed in judgements. I don't know how that works in Australia though.

        • Re: (Score:2, Informative)

          by Anonymous Coward

          In AU, there is the very rare "Part X" bankruptcy, which does wipe all debts completely after a decade or so. It's mostly intended for people who somehow owe so much money that they will never pay it off (happens a lot more that you would think, since eg. banks force people such as directors to be jointly and severally responsible personally for company debts even when acting with due diligence, and so on).

          It does have serious downsides (something pretty close to "no more credit, ever", plus an awful lot of

      • by DaveV1.0 (203135)

        No, that is not why bankruptcy laws were introduced. Maybe you should go read a book on the subject before showing your ignorance to the world.

    • by twoshortplanks (124523) on Tuesday February 09, 2010 @08:33AM (#31070698) Homepage
      Break this down on a personal level - if someone takes a mallet to my car, I'm going to sue them for the value of the damage to the car, i.e. what it costs to compensate me for the damage they caused. If someone burns down my house, I should be able to sue them for the value of the house. The loss they have caused is not mitigated by the ability they have to pay for it.

      Now, if you're going down these lines you need to separate out the punitive damages from the actual damages. The former should be taken in context of the ability for the person to pay (i.e. if you're suing a multinational, you expect punitive damages significant enough for them to sit up and take notice.) The later should probably not be.

    • Re:Proportionality. (Score:4, Interesting)

      by GF678 (1453005) on Tuesday February 09, 2010 @08:45AM (#31070762)

      You have a point. BUT... the guy didn't just trip over and somehow end up leaking the game by accident. He made a conscious decision to do what he did, knowing full well it could land him in hot water. It was an easily avoidable situation which he chose to place himself into, and paid the price. A very high price, and probably an immoral price, but he made his choice.

    • Re:Proportionality. (Score:5, Interesting)

      by Blue23 (197186) on Tuesday February 09, 2010 @09:04AM (#31070884) Homepage

      here should be some kind of proportion to the damages, seriously that amount ruins an ordinary person for the rest of their life. Did the court deliberately set out to give him a life sentence of sorts? And if the amounts are to be set at company rates for individuals he should have his own choice just to do some time for it. Seriously, go on a walk for 3 years and move on in your life instead of being sentenced to financial death for the rest of your natural time.

      Your suggestion seems to be setting the amount as punishment, not as restitution for lost sales. Now, I think the $1.5 million in lost sales is highly debatable, but I would think that whatever amount is awarded should be to recover the amount of lost sales, not a punitive amount as punishment that's scaled to what the person makes.

      To flip this around, if someone committed a premeditated violent crime that they are sentenced to jail for 20 years, I wouldn't expect them to reduce the sentence for a 70 year old because "20 years might be all he's got left, it's a life sentence" vs. the 25 year old who committed the same crime.

      • Re:Proportionality. (Score:5, Informative)

        by jimicus (737525) on Tuesday February 09, 2010 @09:28AM (#31071072)

        I read TFA (I know, I know).

        He hasn't actually been fined a single cent. The $1.5 million is an out of court settlement.

        From what I understand (I don't know how true this is, IANAL), when settlements of this nature are made it's not uncommon for the company getting the settlement to make no real effort to actually get the money. They just wanted a big news headline saying "Man has been stung for $1.5 million for pirating our product".

        Though if it's an out of court settlement, I daresay bankruptcy would probably make it go away altogether.

      • Re: (Score:2, Insightful)

        by whatajoke (1625715)

        To flip this around, if someone committed a premeditated violent crime that they are sentenced to jail for 20 years, I wouldn't expect them to reduce the sentence for a 70 year old because "20 years might be all he's got left, it's a life sentence" vs. the 25 year old who committed the same crime.

        Old age is considered all the time in parole hearings. Also, if you think $1.5x10^6 is an appropriate fine for a middle class fellow, why is that the upper class never gets fined for robbing the middle class of money to the tune of 10^12? If you are fine with that double standard, then you can blow me.

    • by DaveV1.0 (203135)

      There is a proportion to the damages. It has nothing to do with what the perpetrator has, owns, or makes. It has to do with the damage to the victim. He took a game that was expected to sell 15 million copies and illegally released it on the internet. Then, when the game was released, it sold 10 million copies. The damages should be the profit from those 5 million unsold games. $1.5 million seems fair to me.

      You act like James Burt is the victim, but he is not. He is the perpetrator. He doesn't get to chose

      • by headkase (533448)
        I was born an asshole. You obviously could be more familiar with the warez scene. The reason I see this punishment as extra-ordinary is because it is nothing. It is like grabbing one person who is jay-walking and putting him in front of a firing squad while thousands more are doing it at the same time on the same street. The issue is systemic and singling him out makes for great headlines but it is not justice.
    • by Kjella (173770)

      There should be some kind of proportion to the damages, (...) Seriously, go on a walk for 3 years and move on in your life instead of being sentenced to financial death for the rest of your natural time.

      Games can generate hundreds of millions of dollars in revenue, Modern Warfare 2 has passed the billion. It is very possible that 1.5 million dollars is in proportion to the damages. What good does prison time do to recover those? If a homeless guy vandalizes my car either I or my insurance company will have to eat the cost, I don't get anything back from him doing jail time. But if that guy ever wins the lottery I want them to take the money and pay me back no matter how long time has passed. That it's a co

  • by adosch (1397357) on Tuesday February 09, 2010 @09:00AM (#31070860)

    Nintendo is going to do what any other software mongrel in the free world is going to do when their production is illegally propagated to the masses. However, let's not overshadow the fact that the New Super Mario Bros Wii game did sell over 10 million copies as pointed out [slashdot.org] a little over 2 weeks ago.

    Just for fun, I'd like to see what Nintendo's exterior argument was from 'loosing sales' because, clearly, they capitalized on the sales aspect and in any retail store I've been in recently in my area, even a month or better past the holiday season, has the game completely sold out.

    Furthermore, pirating a game like New Super Mario Bros Wii, to me, seems quite contradictory. It's $50 in the store, but it's not like you don't get the gameplay you desire out of it. My wife and I have had this game since late Decemeber 2009 and we've played it daily ever since. With 8 regular levels and 8 unlockable coin levels to conquer, all the easter eggs to discover and the nostaliga of getting to play a killer 2-D game again on a modern-day gaming console, if you don't think that's worth your $50, I pitty you.

    • Re: (Score:3, Insightful)

      by nedlohs (1335013)

      I remember people who pirated Quake 2 and then played it for 2 hours a day for the next 3 years - I don't think value for money enters the equation.

      There's also the "getting the game before the release" aspect that people seem to like.

    • by DaveV1.0 (203135)

      The question is how many would have sold if the game was not put out for unauthorized and illegal copying? It could have been 10 million and 1, or it could have been 20 million.

      • The people who are going to download instead of paying are not the people who will go to the store and buy a game - they think that they're overpriced and if piracy wasn't an option, they just wouldn't play it.

        I've always paid for games until recently when I got pirated copies of a few games - not because I didn't feel that the game was worth the money, but because of the DRM involved. Hell, I even had conversations with employees at the companies where I told them flat out "I WANT to buy your game, but yo

  • If it's that easy for one ordinary person to do that much damage, then I think you have to call into question, philosophically, if it's really him that did the damage. Information can be copied, as a fundamental principle. They have created information, and people are copying it. Is that Burt's fault? By enabling information - whose inherent property is its reproducibility - to be reproduced, has he not just allowed the natural order to be established? I guess that's just a long-winded way of saying "inform

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