May 21, 2007

“Think of the Children” [1:06 pm]

MySpace reaches accord with Attorneys Generalpdf

Last week, a coalition of U.S. law enforcement authorities criticized the News Corp.-owned (NYSE:NWSA - news) service for not divulging information from profiles of convicted sex offenders lurking on MySpace.

MySpace said it had identified, blocked and deleted “a few thousand” such profiles, but had declined to hand over the information, citing a disclosure law barring it from giving away the information without a court order. By last Wednesday, MySpace and the attorneys general group reached an agreement.

Later: MySpace to Share Data With States on Offenders

But on Monday, MySpace officials said their intent was always to share the information with prosecutors. “We had this information safeguarded and ready to hand over,” said Mike Angus, executive vice president and general counsel for Fox Interactive Media, which owns MySpace. “But we wanted to make sure that each state got the information through a legal process that allowed them to use it to prosecute and lock up these sexual predators. The last thing we wanted was for one of these predators to get off on a technicality.”

Connecticut’s attorney general, Richard Blumenthal, also sounded a cautious note of conciliation. “Our focus is not on whether MySpace rebuffed or rejected our demands, it is on how complete and accurate the information is now,” he said. “We’re satisfied that MySpace intends to cooperate.”

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A Power Shift [10:27 am]

And one that I welcome, myself having had more than enough problems with verbal interviews: Interviews, Going the Way of the Linotype?pdf

[I]n the digital age, some executives and commentators are saying they will respond only by e-mail, which allows them to post the entire exchange if they feel they have been misrepresented, truncated or otherwise disrespected. And some go further, saying, You want to know what I think? Read my blog.

“The balance of power has shifted,” says Jay Rosen, who teaches journalism at New York University. “Everyone used to be landlocked, and the media was the outlet to the sea of public discussion. But now there are many routes. . . . Readers have more power because they have more sources, and sources have more power because they can go direct to readers.”

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Must Be Something In The Water [8:15 am]

First, yesterday’s piece from Helprin, and now this — more cutting off one’s nose to grab some quick cash, this time ending the notion of radio as promotion: Artists and labels seek royalties from radiopdf

With CD sales tumbling, record companies and musicians are looking at a new potential pot of money: royalties from broadcast radio stations.

For years, stations have paid royalties to composers and publishers when they played their songs. But they enjoy a federal exemption when paying the performers and record labels because, they argue, the airplay sells music.

Now, the Recording Industry Assn. of America and several artists’ groups are getting ready to push Congress to repeal the exemption, a move that could generate hundreds of millions of dollars annually in new royalties.

[...] It’s not the first attempt to kill the exemption. In the past, politically powerful broadcasters beat back those efforts.

But with satellite and Internet radio forced to pay “public performance royalties” and Web broadcasters up in arms about a recent federal decision to boost their performance royalty rate, the record companies and musicians have a strong hand.

Broadcasters are already girding for the fight, expected to last more than a year. In a letter to lawmakers this month, the National Assn. of Broadcasters dubbed the royalties a “performance tax” that would upend the 70-year “mutually beneficial relationship” between radio stations and the recording industry.

“The existing system actually provides the epitome of fairness for all parties: free music for free promotion,” wrote NAB President David Rehr.

You have to wonder if anyone is paying attention to this when promoting this change in radio performance royalties: Higher Music Royalties Create Static on the Netpdf

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May 20, 2007

An “Anti-Lessig” Speaks (updated) [3:33 pm]

Channeling Mark Twain/Samuel Clemens and Sonny Bono, Mark Helprin asserts that IP *is* property, and should be treated accordingly — no matter what the price: A Great Idea Lives Forever. Shouldn’t Its Copyright?

Deconstructing his argument will occupy many minds, but I’ll offer up one simple one — he speaks movingly about the features and composition of art without any sort of appreciation of the realities from which it springs — specifically, what injecting perpetual ownership (and consequential litigation) into it will do:

The flow and proportion of the elements of a work of art, its subtle engineering, even its surface glosses, combine substance and style indistinguishably in a creation for which the right of property is natural and becoming.

Ummm - no, not really. At least, not “property” as he appears to be classifying it.

For some less dogmatic comments from some of Mr. Helprin’s colleagues, see Writers Take Out Their Knives; you may also want to read Spider Robinson’s classic short story, Melancholy Elephants; also the Slashdot reaction — The Case For Perpetual Copyright

This will cheer you up: Disney Video Used to Explain Copyright

Also, an interview with chef Marco Pierre White: The man who made Gordon Ramsay cry

I don’t know if you’ve heard about this, but there’s been a little controversy recently involving chef Wylie Dufresne, of WD-50 here in New York, and Marcel Vigneron, who was one of the chefs on “Top Chef,” an American reality show. Basically, Wired magazine asked Vigneron to demonstrate a recipe for a feature, and he closely re-created one of Dufresne’s signature dishes — a “cyber egg” made from carrot-cardamom puree and coconut milk — without any attribution or credit. Do you think a chef’s recipes should be protected as intellectual property?

You can’t reinvent the wheel. Everyone takes from everybody. How many people are serving foie gras on their menu? How many? How many people do a soupe de poisson? Go to France — a pigeon en croute de sel, a loup de mer en croute de sel. We live in a world of refinement, not invention. It’s the greatest compliment he can be given, this guy. If someone takes one of your dishes and does it, it’s flattery. For you to get pissed off because he didn’t acknowledge you is ego. It’s all too political really, isn’t it? I mean, we’re fucking chefs.

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When Your Digital Identity Is For Sale [2:43 pm]

Bilking the Elderly, With a Corporate Assist

Mr. Guthrie, who lives in Iowa, had entered a few sweepstakes that caused his name to appear in a database advertised by infoUSA, one of the largest compilers of consumer information. InfoUSA sold his name, and data on scores of other elderly Americans, to known lawbreakers, regulators say.

InfoUSA advertised lists of “Elderly Opportunity Seekers,” 3.3 million older people “looking for ways to make money,” and “Suffering Seniors,” 4.7 million people with cancer or Alzheimer’s disease. “Oldies but Goodies” contained 500,000 gamblers over 55 years old, for 8.5 cents apiece. One list said: “These people are gullible. They want to believe that their luck can change.”

As Mr. Guthrie sat home alone — surrounded by his Purple Heart medal, photos of eight children and mementos of a wife who was buried nine years earlier — the telephone rang day and night. After criminals tricked him into revealing his banking information, they went to Wachovia, the nation’s fourth-largest bank, and raided his account, according to banking records.

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Architectures of Control: Car Keys [2:21 pm]

Replacing car keys is no longer quick or cheappdf

[Clarence] Ditlow said some car manufacturers have created a limited monopoly for their keys by not sharing the codes with independent shops. He petitioned the Federal Trade Commission to investigate fees charged by dealerships last year, but said he has received no response from the agency. The FTC declined to comment.

California last year passed a law requiring most car manufacturers to provide their key codes to licensed locksmiths. The law takes effect Jan. 1, 2008. It was sponsored by the American Automobile Association and opposed by many luxury car makers, who said it could compromise vehicle security. The law exempts a handful of manufacturers, including Mercedes-Benz, BMW, and Jaguar, until 2013.

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May 19, 2007

SAE Temporizes [6:35 pm]

But, based on this press release, they clearly are not going to cave. I hope that my university will continue its policy not to subscribe to their Digital Library — and I hope that those of us who have published papers with SAE will continue to avoid doing so: SAE Publications Board to Review Digital Rights Management Controls for Students, Faculty - pdf

SAE International’s Publications Board temporarily will suspend full activation of Digital Rights Management (DRM) controls as applied on the Society’s Digital Library of technical papers for licensees at colleges, universities and other academic institutions.

[...] “SAE’s highest interest is in serving the technical information needs of all mobility professionals,” said Michael Madley, SAE’s new chair of the Publications Board. “We look forward to working in partnership with the academic community to ensure an efficient and economical flow of information while managing intellectual property rights.”

See earlier: MIT Rejects SAE’s DRM-Crippled ePublications

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Owning Numbers: Another Incarnation [2:21 pm]

Jenny, they got your number; now 2 firms fighting over itpdf

If you’re a radio listener of a certain age, the telephone number 867-5309 is burned forever in your brain.

[...] By itself, 867-5309 has nothing to do with plumbing, argues Clockwork’s Boston lawyer, Carrie J. Fletcher. It “doesn’t make any sense without the music, but Gem doesn’t have any rights to the music,” she added.

Still, Gem plans to keep fighting for its prized numerical possession, which it uses in the 401 and 617 area codes.

[...] Tommy “Tutone” Heath [Ed: you can find audio/video of "867-5309" at the Tutone link], however, doesn’t see much fun in the dispute. Reached by phone yesterday in Northern California, he said he would prefer that neither company use 867-5309. “It’s ridiculous,” said Heath, who is working on a new album. “If I wanted to get into it, I could probably take the number away from both of them.”

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May 18, 2007

Cyberwarfare? Or Just Hackery? [5:05 pm]

“E-stonia” Accuses Russia of Computer Attackspdf

“If you have a missile attack against, let’s say, an airport, it is an act of war,” a spokesman for the Estonian Defense Ministry, Madis Mikko, said in a telephone interview today. “If the same result is caused by computers, then how else do you describe that kind of attack?”

Officials in Estonia have accused Russia of orchestrating the attacks, officially or unofficially. They also raised the matter at a NATO meeting on Monday, when the defense minister said that the alliance, which Estonia joined in 2004, needed to urgently debate the question — once seemingly a distant threat — of whether mass computer attacks pose a threat to national security.

“Events of this nature make a lot of people sit up,” a NATO spokesman, Robert Pszczel, said in a telephone interview. “Today, Estonia — tomorrow it could be somebody else.”

Also, Estonia Computers Blitzed, Possibly by the Russians; Cyber Assaults on Estonia Typify a New Battle Tacticpdf

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Assembling the “Frenemies,” Watching Us All [4:21 pm]

Google’s moves are generating expected responses:

  • WPP Group to Acquire Online Ad Company

    “This really heightens the tension between ad agencies and technology companies as they both try to go after the ad dollars that are migrating online,” said Youssef Squali, the Internet analyst at Jefferies & Company.

    The WPP Group and other ad holding companies make most of their money by creating ads and planning where they should appear. Now, WPP plans to develop a third major line of business in the online technology space using 24/7 Real Media as its foundation, Mr. Sorrell said in a conference call.

    “You can call it a tipping point if you want, but I think there has been a tipping point in terms of the realization of the impact of these technologies,” Mr. Sorrell said.

  • Microsoft to Buy Online Ad Company

    In the offline world, there has generally been a clear distinction between media outlets and advertising agencies, which create the ads and buy time or space to run them. On the Internet, that line has been blurred, with portals like Google increasingly pushing into “upstream” areas like media planning and buying.

    “We’ve suddenly got two different sides that are competing in the same area, in the advertising companies and the media owners,” Ms. VanBoskirk said.

    There are signs of friction as online media owners like Google, with their deep pockets, expand. Google’s agreement to buy DoubleClick was criticized by Martin Sorrell, chief executive of WPP Group, who said it could trouble marketers.

    “It raises issues about whether we are prepared to give Google data that’s very valuable,” he said last month as WPP gave a quarterly financial update. “Clients will be concerned over the access Google may have to information that is owned by them.”

Later: can’t get more explicit than this — Web Ads With An Audience Of Onepdf

Microsoft’s $6 billion purchase of a major online advertising company announced yesterday underscores a core moneymaking strategy of the digital economy: watching you.

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Vicious [4:14 pm]

Online Invitation to ‘Help Yourself’ Surprises the Stuff’s Owner

“House being demolished,” read the posting on March 24. “Come and take whatever you want, nothing is off limits. Items outside and garage will be open for access into house. Please help yourself to anything on property at 1202 East 64th Street. Tacoma.”

Within a week, the unoccupied house at that address in Tacoma, Wash., had been picked clean. Living room window? Gone. Water heater? Gone. Kitchen sink? Naturally.

And the homeowner? Laurie Raye was stunned.

Now the matter has moved from Craigslist to Superior Court, where Ms. Raye’s niece, Nichole Marie Blackwell, 28, is to appear next week to face charges of burglary, malicious mischief and criminal impersonation. Investigators said they had traced the fraudulent advertisement to a computer Ms. Blackwell had previously used to post other times on Craigslist.

So, did we need our government’s FISA run-around to figure this out? Or did good investigative work do what it’s supposed to do? Note that today’s LATimes has an editorial [pdf] that reminds us of a few things:

The timing of Comey’s revelations couldn’t be worse for Bush. The administration is seeking changes — some of them reasonable — in the Foreign Intelligence Surveillance Act, the 1978 law that requires a court order for electronic eavesdropping on U.S. citizens.

But skeptical members of Congress recall that, for five years, the administration flouted that very law by eavesdropping on the international phone calls and e-mails of Americans without court approval.

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LATimes Editorial on Amazon/Apple DRM-free Content [3:59 pm]

Amazon sells freedompdf

Still, the other major labels — Universal Music Group, Sony BMG and Warner Music Group — are reluctant to give up on scrambling also known as digital rights management, or DRM. They hope consumers will buy new audio-visual equipment that can zip files around a home network while preventing them from being shared online. Theyre also eager to replace unscrambled CDs with scrambled downloads, not MP3s. Those visions are sustained by a belief that technology can stop piracy. But that seems quixotic, given how little effect its had so far on file sharing.

Amazon and Apple are giving record companies a testing ground that begs to be used, either to experiment with premium pricing or to see if the format change boosts sales. While theyre making up their minds, recording industry executives can shop for DVDs, books and electronics at Amazon and see how persuasively the site prods them to buy songs … from artists not on their labels.

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Hard To Understand (updated) [7:56 am]

They’re opposed to a change in business models? Really? [actually, it’s just terrible editing at The Boston Globe. See the article from their parent below.) Authors oppose single printingspdf

The offer from Simon & Schuster seems ideal: Let us publish your book , and it’ll never go out of print. Even if it sells only one copy a year, we’ll keep it available, thanks to digital technology.

But the Authors Guild, representing thousands of published writers, says that’s unacceptable. “A publisher is meant to publish, to get out there and sell our books,” Guild president, author , and humorist Roy Blount Jr. said yesterday. “A publishing house is not a place where our books are permanently squirreled away.”

But, wait — what?

Later: Walt Crawford (of points out to me (via email) that good book contracts (i.e, those that have received appropriate attention from authors and their agents) routinely include a reversion clause, dictating the circumstances under which the publisher relinquishes the exclusive right to publish a book. Among these circumstances are the book going out of print. Therefore, one could interpret Simon & Schuster’s “offer” as a way of removing one way that the publisher might lose the exclusive right to copy and, thus, blocking the author from employing other mechanisms for distribution.

For example, I have a colleague whose textbook went out of print, and his contract included a reversion clause (which I erroneously assumed was a rarity). Because the rights have reverted to him, we can now have the text copied and distributed to our students without fear of action on the part of the publisher. Without this reversion, it would not be legal for him to make copies of his own textbook, even though the book is out of print.

So, I get it now.

Later: from the NYTimes — Publisher and Authors Parse a Term: Out of Print

Traditionally, if a book falls out of print, authors are contractually allowed to ask their publishers for their rights back so that the author can try to have the book republished somewhere else.

Until recently, that has meant that if a book was not available in at least one format — hardback, trade paperback or mass market paperback being the most common — or if sales fell below a minimum annual threshold, it was deemed out of print.

But with the advent of technologies like print-on-demand, publishers have been able to reduce the number of back copies that they keep in warehouses. Simon & Schuster, which until now has required that a book sell a minimum number of copies through print-on-demand technology to be deemed in print, has removed that lower limit in its new contract.

In effect, that means that as long as a consumer can order a book through a print-on-demand vendor, that book is still deemed in print, no matter how few copies it sells.

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May 16, 2007

Perfect 10 Injunction Overturned Vacated [5:57 pm]

Perfect 10, Inc. v. Amazon [local copy]

In this appeal, we consider a copyright owner’s efforts to stop an Internet search engine from facilitating access to infringing images. Perfect 10, Inc. sued Google Inc., for infringing Perfect 10’s copyrighted photographs of nude models, among other claims. Perfect 10 brought a similar action against and its subsidiary (collectively, “”). The district court preliminarily enjoined Google from creating and publicly displaying thumbnail versions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006), but did not enjoin Google from linking to third-party websites that display infringing full-size versions of Perfect 10’s images. Nor did the district court preliminarily enjoin from giving users access to information provided by Google. Perfect 10 and Google both appeal the district court’s order. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

The district court handled this complex case in a particularly thoughtful and skillful manner. Nonetheless, the district court erred on certain issues, as we will further explain below. We affirm in part, reverse in part, and remand.

Later: WaPo’s Google Wins Appeal on Copyright of Nude Images (pdf)

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A Real Question [4:22 pm]

How much *should* we save? Saving Our Digital Heritagepdf

The importance of developing sensible plans to preserve our digital heritage cannot be minimized. We can’t save it all, nor do we want to. It’s also critical that we agree on how to save this data. In the next 100 years, we will go through dozens of generations of computers and storage media, and our digital data will need to be transferred from one generation to the next, and by someone we trust to do it.

The National Digital Information Infrastructure and Preservation Program provides a good start, and Congress has an opportunity to restore $21.5 million requested by the Library of Congress to continue the program and sustain the partnerships needed to fulfill the critical task of preserving our nation’s important born-digital information.

It would be a national and a global shame if our most valuable born-digital knowledge, like the ancient holdings at Alexandria, were lost forever.

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Illegal Speech — Who’s Responsible? [2:45 pm]

Web Site Is Held Liable for Some User Postings

A Web site that matches roommates may be liable for what its users say about their preferences, a fractured three-judge panel of the federal appeals court in San Francisco ruled yesterday.

The suit was brought by two California fair housing groups that objected to postings on the matching service, The groups said the site violated the Fair Housing Act by allowing and encouraging its users to post notices expressing preferences for roommates based on sex, race, religion and sexual orientation.

The ruling knocked down the main defense of the site. In 1996, Congress granted immunity to Internet service providers for transmitting unlawful materials supplied by others. Most courts have interpreted the scope of that immunity broadly.

Fair Housing Council v. Roomates.Com, LLC [local copy]

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The More We Know, The Better We Can … Sell? [2:38 pm]

CRM+DBM+WWW=Online Brand Marketing — What *else* might this data be used for? Your Ad Goes Here

Indeed, many in the industry regard display advertising that can reach specific audiences as the next big online opportunity — the postsearch wave, the Internet ad market 2.0.

[...] The process of delivering relevant search-based ads is comparatively easy — a typed search term sets off related text ads, which appear next to the results, exposing consumers to sundry, generally relevant, advertisers.

Brand advertising, however, starts higher up on the marketing food chain; it is meant to foster brand and product awareness as well as purchases. The goal is to deliver select audiences — of thousands, even millions — to mass marketers.

The new science of online display advertising involves a potent mix of behavioral targeting, social networking algorithms, predictive economics, pricing optimization and other mathematical strategies.

These geeky tools are used to address the marketer’s quandary, well articulated by John Wanamaker, the 19th-century Philadelphia merchant who said that half the money he spent on advertising was wasted, but he didn’t know which half.

[...] The most common technique for identifying an audience is called behavioral targeting, which tracks, analyzes and predicts online behavior based on where you (actually your browser software) have gone before on the Internet. The ad targeters cull vast quantities of Web-viewing behavior and other data, like the speed of your Internet connection, the time of day you visited a site, whether it was done from work or home and even associated ZIP codes.

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Evolving Music Business Models [1:37 pm]

A Band Struts Again, Under an M.B.A. Batonpdf

Although he had warned Mr. Benson that the studio was a losing proposition, Mr. Lickona said, “In retrospect, it was a pretty smart business decision.”

[...] Owning a studio has cut production costs and allowed the Wheel to create specialty projects, Mr. Benson said. The goal was to beat the classic record industry system, in which the label pays for a band’s recording, promotion and distribution, then deducts the expenses from the band’s royalties until it is repaid, which in Mr. Benson’s case was almost never. Worse, the record company owned all rights to the music.

With his own studio, the goal was to create CDs that the band would own and that could turn a profit with far fewer sales.

“There are 100,000 to 150,000 people who are passionate fans that spend $20 to $100 a year on the Wheel,” Mr. Schwarz said. “The Internet allows us to capture that.”

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EMI Is Agnostic [1:35 pm]

And an immediate competitor to iTunes’ DRM-free product is born: Amazon to Sell Music Without Copy Protection

Amazon, the Internet’s most successful seller of physical CDs, today announced plans to introduce a music download store later this year, selling songs and albums in the MP3 format without the anti-copying protection used by most online music retailers.

Selling songs as MP3 files means that customers can transfer their music without limits to any computer, cellphone or music playing device, including Apple’s iPod and Microsoft’s Zune.

The music will be from a major label, EMI, and 12,000 independent music companies that have chosen not to use the copy-restricting software known as digital rights management, or D.R.M.“We are offering a great selection of music that our customers love in a way they clearly desire, which is D.R.M.-free, so they can play it on any device they own today or in the future,” said Bill Carr, Amazon’s vice president for digital media.

Later, other coverage: LATimes’ Amazon to sell unrestricted songs (pdf); NYTimes’ Amazon to Sell Music Without Copy Protection

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If At First You Don’t Succeed… [1:32 pm]

You work even harder to make an insane investment payoff: Rhett, Scarlett and Friends Prepare for Yet Another Encore

Less a conventional sequel than a retelling from Rhett Butler’s point of view, the new book, to be published by St. Martin’s Press in November, is written by Donald McCaig, a former advertising copywriter turned Virginia sheep farmer who has written well-reviewed novels about the Civil War.

[...] With the publication of “Rhett Butler’s People,” St. Martin’s will at last have the chance to begin recouping the $4.5 million advance it agreed to pay the Mitchell estate for the right to publish a second sequel. The publisher has high hopes for the book’s commercial prospects, with an anticipated first print run of more than a million copies.

But the new book is also, in some senses, a bid for redemption by the estate of Margaret Mitchell, who died in 1949 and steadfastly refused to write a sequel to “Gone With the Wind” herself. When Alexandra Ripley’s “Scarlett,” the first sequel, was published in 1991, it was a blockbuster best seller — it has sold more than six million copies to date worldwide — but suffered a critical drubbing. (Five years ago Ms. Mitchell’s estate unsuccessfully tried to block publication of “The Wind Done Gone,” Alice Randall’s unauthorized parody told from the perspective of a slave whose mother, Mammy, was Scarlett’s nanny.)

This time around, the lawyers who manage the business affairs of the Mitchell estate aimed higher. “What we were most interested in was a product of high literary quality,” said Paul Anderson Jr., one of three lawyers who advises the estate, held in trust for the benefit of Ms. Mitchell’s two nephews. “We were looking for something not to make a quick buck, but something that would be lasting.”

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