July 31, 2008

OT: Congressional Subpoenas and Executive Privilege [2:03 pm]

According to today’s opinion from the US District Court of DC, Committee on the Judiciary of the United States House of Representatives v. Miers et al.:

This dispute pits the political branches of the federal government against one another in a case all agree presents issues of extraordinary constitutional significance. The heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process. [...]

It is important to note that the decision today is very limited. To be sure, most of this lengthy opinion addresses, and ultimately rejects, the Executive’s several reasons why the Court should not entertain the Committee’s lawsuit, but on the merits of the Committee’s present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Miers and Mr. Bolten may assert are not addressed — and the Court expresses no view on such claims. Nor should this decision discourage the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches. Although standing ready to fulfill the essential judicial role to “say what the law is” on specific assertions of executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role.

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July 30, 2008

Tim Wu on Spectrum, Bandwidth and Industry Structure [9:44 am]

Why Bandwidth Is the Oil of the Information Economy

AMERICANS today spend almost as much on bandwidth — the capacity to move information — as we do on energy. A family of four likely spends several hundred dollars a month on cellphones, cable television and Internet connections, which is about what we spend on gas and heating oil.

Just as the industrial revolution depended on oil and other energy sources, the information revolution is fueled by bandwidth. If we aren’t careful, we’re going to repeat the history of the oil industry by creating a bandwidth cartel.

[...] After physical wires, the other major way to move information is through the airwaves, a natural resource with enormous potential. But that potential is untapped because of a false scarcity created by bad government policy.

[...] Many “owners” of spectrum either hardly use the stuff or use it in highly inefficient ways. At any given moment, more than 90 percent of the nation’s airwaves are empty.

The solution is to relax the overregulation of the airwaves and allow use of the wasted spaces. Anyone, so long as he or she complies with a few basic rules to avoid interference, could try to build a better Wi-Fi and become a broadband billionaire. These wireless entrepreneurs could one day liberate us from wires, cables and rising prices.

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July 29, 2008

And I Just Joined Facebook, Too! [3:20 pm]

Popular Scrabulous Game Vanishes From Facebook (pdf)

It’s game over for Scrabulous; the popular Scrabble knockoff game on Facebook is no longer available as of this morning.

Facebook users who logged on to play the word puzzle game this morning instead got a message that it has been “disabled for U.S. and Canadian users until further notice.”

The game was one of the most popular applications on the social networking site, but Hasbro filed a lawsuit last week accusing Scrabulous makers of having infringed on copyrights with the Facebook game.

Later: Scrabulous Barred to North American Users

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Transitions [1:03 pm]

Say So Long to an Old Companion - Cassette Tapes

There was a funeral the other day in the Midtown offices of Hachette, the book publisher, to mourn the passing of what it called a “dear friend.” Nobody had actually died, except for a piece of technology, the cassette tape.

[...] Nowadays, listening to music on cassettes is a dying pastime. None of Billboard’s Top 10 albums last week were issued on cassette, though half were released on vinyl, which has been resurging. Last year, only 400,000 music tapes were sold, representing one-tenth of 1 percent of all physical and digital music sales, according to the Recording Industry Association of America. In 1997, the figure was 173 million, and that was when cassettes were already getting a drubbing by CDs. (The iPod wasn’t introduced until 2001.)

“I would not expect to see a revival of cassettes like we’ve seen in the LP market,” Mr. DuBravac said. While vinyl records have always been prized artifacts for their devotees, the plastic cassette tape has little sex appeal.

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July 26, 2008

Textbook Publishers and the Digital Text [7:09 pm]

First It Was Song Downloads. Now It’s Organic Chemistry

Compared with music publishers, textbook publishers have been relatively protected from piracy by the considerable trouble entailed in digitizing a printed textbook. Converting the roughly 1,300 pages of “Organic Chemistry” into a digital file requires much more time than ripping a CD.

Time flies, however, if you’re having a good time plotting righteous revenge, and students seem angrier than ever before about the price of textbooks. More students are choosing used books over new; sales of a new edition plunge as soon as used copies are available, in the semester following introduction; and publishers raise prices and shorten intervals between revisions to try to recoup the loss of revenue — and the demand for used books goes up all the more.

Used book sales return nothing to publishers and authors. Digital publishing, however, offers textbook publishers a way to effectively destroy the secondary market for textbooks: they now can shift the entire business model away from selling objects toward renting access to a site with a time-defined subscription, a different thing entirely.

The transition has already begun, even while publishers continue to sell print editions. [...]

Although the tone is a little negative, one does have to ask whether, with regularly updated online editions, the publishers have come up with a better product? And, again, are at least trying to better their product, rather than adopting the record industry’s attitude of product stagnation and consumer litigation?

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The NYTimes Looks At Literacy, Digital And Otherwise [7:05 pm]

The lead photo is a hoot: Literacy Debate - Online, R U Really Reading?

Children like Nadia lie at the heart of a passionate debate about just what it means to read in the digital age. The discussion is playing out among educational policy makers and reading experts around the world, and within groups like the National Council of Teachers of English and the International Reading Association.

As teenagers’ scores on standardized reading tests have declined or stagnated, some argue that the hours spent prowling the Internet are the enemy of reading — diminishing literacy, wrecking attention spans and destroying a precious common culture that exists only through the reading of books.

But others say the Internet has created a new kind of reading, one that schools and society should not discount. The Web inspires a teenager like Nadia, who might otherwise spend most of her leisure time watching television, to read and write.

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July 25, 2008

Wishful Thinking from the LATimes [9:49 am]

Pulling Prince from YouTube (pdf) (see this earlier post for background)

There should be some deterrent against copyright holders attacking fair uses online, deliberately or otherwise. At the very least, they should have to look at potentially infringing uses of their works and consider fair-use law before sending take-down notices. The courts may be the ultimate arbiter of individual fair-use claims, but copyright holders shouldn’t be free to ignore the guidance provided by federal statutes and previous court rulings. Besides, taking down baby videos won’t make Universal or Prince any richer in the long run. They’d be better off working with YouTube to capitalize on fans’ enthusiasm than scrubbing the site clean of his hits.

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The Rental Model [9:39 am]

EFF: Yahoo Music should compensate customers

Yahoo Music is telling customers that it wont allow users who bought songs from the service to transfer them to new devices or PCs after September 30.

The announcement on Thursday has stunned the Electronic Frontier Foundation, a watchdog group for Internet users. Surely, Yahoo should have learned something from the MSN debacle. Just a month ago, Microsoft reversed a decision to stop releasing authorization keys for the copy protections it placed on songs, and will issue keys for three more years.

“Some people think they can use music wrapped in digital rights management just like they do a CD,” Corynne McSherry, an attorney with EFF, told CNET News. “This should teach everyone that you cant.”

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July 24, 2008

Can’t Win For Losing, I Guess [9:24 pm]

On the other hand, when Comcast is “paying attention,” it *is* a little spooky: Complaining Bloggers Have a Cable Company’s Ear

Comcast is not the only company trying to reach out to customers online. Using the social messaging service Twitter, Southwest Airlines answers customer questions about ticket prices and flight delays, Whole Foods Market posts details about discounts, and the chief executive of the online shoe store Zappos shares details of his life with 7,200 “followers.” Many other companies also monitor online discussion groups.

But Comcast is going an extra step by talking back, contacting customers who are discussing the company online.

Odds are they are complaining about Comcast. The company was ranked at the very bottom of the most recent American Customer Satisfaction Index, which tracks consumer opinions of more than 200 companies. Hundreds of customers have filed grievances on a site called ComcastMustDie.com.

[...] Brian D. Solis, who runs a public relations firm, FutureWorks, that specializes in social media, said companies like Comcast are “taking what used to be an inbound call center and turning it into an outbound form of customer relations” that can also help spot problems before they get out of hand.

Still, others agree with Mr. Dilbeck, the University of Washington student, that the online outreach is annoying. “Comcast Is Watching Us,” declared a blog called Contempt for the World in February, when Mr. Eliason started wading into the comment sections of blogs.

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July 23, 2008

Two Entries from the LATimes’ Bit Player Blog [8:30 am]

  • Consumer groups blast MPAA proposal (a dog bites man story)

    If you had the chance to watch a movie on cable or satellite TV before it came out on DVD, what sort of trade-offs would you be willing to make? Would you pay more to watch it than a DVD rental or even a movie ticket? Would you accept having to watch the movie in one sitting, with no breaks for phone calls or snacks? Would you lose interest if you couldn’t record the movie to watch again later?

    These are the sorts of questions the market typically answers, but that’s not how it necessarily works in the entertainment industry. This week, seven consumer advocacy groups urged the FCC not to let the studios conduct the experiment they proposed in early video-on-demand releases. The reason: the MPAA wants to deploy an anti-piracy technique that, in the advocacy groups’ opinion, would give the studios too much control over the technology used in homes.

  • More royalties for songwriters? - a look at the latest notice of proposed rulemaking from the LoC

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Collaboration and Problem-Solving [7:12 am]

If You Have a Problem, Use Innocentive to Ask Everyone

The chemist and the institute came together through InnoCentive, a company that links organizations (seekers) with problems (challenges) to people all over the world (solvers) who win cash prizes for resolving them. The company gets a posting fee and, if the problem is solved, a “finders fee” equal to about 40 percent of the prize.

The process, according to John Seely Brown, a theorist of information technology and former director of the Xerox Palo Alto Research Center, reflects “a huge shift in popular culture, from consuming to participating” enabled by the interactivity so characteristic of the Internet. It is sometimes called open-source science, taking the name from open-source software in which the source code, or original programming, is made public to encourage others to work on improving it.

The approach is catching on. Today, would-be innovators can sign up online to compete for prizes for feats as diverse as landing on the Moon (space.xprize.org/lunar-lander-challenge) and inventing artificial meat (www.peta.org/feat_in_vitro_contest.asp).

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July 22, 2008

COPA Litigation Working Through The System [2:29 pm]

Today, it’s the Third Circuit Court of Appeals that declares COPA unconstitutional: Court affirms online content law unconstitutional (pdf)

In its ruling Tuesday, the federal appeals court concluded that the Child Online Protection Act also violates the First Amendment because filtering technologies and other parental control tools offer a less restrictive way to protect children from inappropriate content online. The court also ruled that the law is unconstitutionally overly broad and vague.

The opinion: ACLU v Attorney General of the US. It’s kind of an interesting one, because it is substantially a revisiting of several earlier decisions by this court, (one reversed and one upheld by the Supreme Court), whose parameters for remand, which led to a permanent injunction on COPA, are being challenged by the Government. It leads to this interesting conclusion, suggesting that, no matter how you slice it, it still comes up baloney:

In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional. We reach our result both through the application of the law-of-the-case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either basis standing alone. For the foregoing reasons, we will affirm the District Court’s March 22, 2007 order.

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July 21, 2008

FCC Fine for CBS’ Super Bowl “Indecency” Vacated [2:35 pm]

A violation of the APA forms the grounds for a vacate and remand in CBS v FCC:

The FCC possesses authority to regulate indecent broadcast content, but it had long practiced restraint in exercising this authority. During a span of nearly three decades, the Commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to “shock treatment” for the audience. Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency.

At the time the Halftime Show was broadcasted by CBS, the FCC’s policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission’s enforcement history reveals that its policy on fleeting material was never so limited. The FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

[...] In finding CBS liable for a forfeiture penalty, the FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter. And the FCC’s interpretation and application of 47 U.S.C. § 503(b)(1) are not sufficiently clear to permit review of the agency’s determination of CBS’s direct liability for a forfeiture penalty based on broadcast indecency.

Further action by the Commission would be declaratory in nature, as the agency may not retroactively penalize CBS. [...]

Indecency Penalty Against CBS Is Rejected

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I’m Sure This Will Solve Everything [8:28 am]

Musicians’ unions stay out of digital debate (pdf)

With digital distribution of entertainment as the focal point, the TV/film and music industries are embroiled in several disputes between those who create the content and those who distribute it. But while those disputes in Hollywood are well-documented — with powerful unions like the Writers Guild of America and the Screen Actors Guild staging high-profile negotiations and, in some cases, strikes — the perception in the music industry is that artists are largely left to themselves to fight for whatever they can get on their own.

[...] To date, the bulk of artist-label disputes have centered on details contained in individual contracts, leaving artists with few options to engage their union for support.

[...] Take the revenue split for digital downloads. The standard practice is that labels pay artists the same cut they get under their contract for CD sales — around 15% after recoupable costs. However, many artists, managers and their lawyers argue digital sales should be treated as a third-party license, in which case they would get 50% of digital revenue.

“Every artist contract is an individual situation, and the labels use that to their advantage,” says Perry Resnick, a business manager with RZO, which represents David Bowie. “Labels haven’t budged on this issue at all . . . I can’t think of any way to address it other than through the courts.”

That’s exactly what’s happening. Sony BMG is facing a class action lawsuit initiated by the Allman Brothers Band and Cheap Trick over this issue for digital downloads and ringtones, and Universal Music Group faces a non-class status suit by some artists regarding a similar issue.

According to AFTRA national executive director Kim Roberts Hedgpeth, the unions have stayed out of that particular fight because they wanted to let the legal process take its course. However, she expects unions will take a much larger role in the near future.

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July 19, 2008

Evolving Norms and Privacy In Plain Sight [4:29 pm]

It was suggested that TPP set up a Facebook page as a part of our student recruiting strategy, so I decided I’d better get a look at the platform by joining. It’s still something of a mystery to me what it’s all about, but this Reuters article certainly illustrates one key feature of modern life that a lot of folks still haven’t managed to grasp: Web networking photos come back to bite defendants (pdf)

Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled “Jail Bird.”

In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Liptons drunken-driving case.

Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison.

See, stupidity *is* a criminal offense!

I recently finished this remake/reframing of 1984 that touches on exactly this theme: Blind Faith by Ben Elton - I picked it up when transiting Heathrow a couple of weeks ago. The premise is that, while in 1984 the primary crime against the State was “thoughtcrime,” Elton paints a comparable world where “privacy” is the worst crime one can commit. What’s so awful about reading this entertainingly written (albeit still pulp) fiction is that you can see the kernels of this possible trend all around you.

Later: Another Facebooker looks at its use — Hey, Friend, Do I Know You?

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July 18, 2008

YouTube and Product Promotion [8:06 am]

Advertising - Remember ‘2 All-Beef Patties?’ McDonald’s Hopes You Do

The year was 1974: gas prices were high, inflation was rampant and an unpopular Republican occupied the White House. McDonald’s introduced a spirit-lifting jingle: “Two all beef patties, special sauce, lettuce, cheese, pickles, onions, on a sesame-seed bun.”

Now it is 2008, and McDonald’s is reviving it as a TV commercial. The company has asked consumers to write their own songs using the exact words of the jingle, and submit them to a contest on MySpace.com. The official reason is this year’s 40th anniversary of the Big Mac, but the then-and-now cultural similarities are not entirely lost on the company.

[...] But today the McDonald’s channel of choice is a social networking site geared to people who were not yet born in 1974. Nevertheless, nearly 1,000 songs have been submitted, and judges have selected five finalists. The public has been invited to vote, and a winner will be announced Tuesday. In keeping with the tone of today’s economy, the winner won’t get any cash, but his or her song will be featured in a commercial later this month.

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Bratz Verdict In [8:02 am]

Designer created Bratz while at Mattel, jury says (pdf)

Mattel Inc., maker of the Barbie doll, won a jury verdict concluding a former employee made original drawings of MGA Entertainment Inc.’s Bratz dolls while working at Mattel.

A federal jury in Riverside, Calif., agreed yesterday that designer Carter Bryant made most of the first sketches of the pouty Bratz characters while he was employed by Mattel in 1999 and 2000. The verdict might clear the way for Mattel to seek damages for copyright infringement.

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BitTorrent and Textbooks [7:56 am]

Textbooks, free and illegal, online (pdf)

Faced with soaring prices for textbooks, cash-strapped students have discovered a tempting, effective, but illicit alternative - pirated electronic books, available for free over the Internet.

“We think its a significant problem,” said William Sampson, manager of infringement and antipiracy at Cengage Learning Inc., a reference book publisher in Farmington Hills, Mich. Sampson said that in any given month, 200 to 300 of the companys titles are posted illegally as free Internet downloads. Distributing books for free without permission violates copyright laws and deprives publishers of revenue.

Its not just textbooks that are being downloaded improperly. Ed McCoyd, director of digital policy at the Association of American Publishers in New York, said a survey in May located about 1,100 titles available illegally online, including novels and books on current events.

But textbook piracy is particularly seductive, McCoyd said, because students are often hard-pressed to pay for academic books that can cost more than $100, three times the price of most other books.

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July 17, 2008

Everyone’s Getting In On It [9:48 am]

Time to think about encrypting everything one does? Lawmakers Probe Web Tracking (pdf)

An Internet provider based in Kansas used a monitoring technology earlier this year to track sites visited by its users, apparently without directly notifying them, according to a congressional panel investigating the action.

Embarq, which serves 1.3 million Internet customers in 18 states, including Virginia, acknowledged that it used “deep packet inspection” technology provided by the Silicon Valley firm NebuAd to direct targeted advertising to users.

Some lawmakers and others question whether such actions violate users’ rights to keep their Internet behavior to themselves. The House Energy and Commerce subcommittee on telecommunications and the Internet will take up the subject at a hearing today.

The hearing: What Your Broadband Provider Knows About Your Web Use: Deep Packet Inspection and Communications Laws and Policies - witness list; webcast

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If It’s Good For The Goose, …. [updated] [8:04 am]

And the use of “safety” as an excuse for egregious infringement continues: They could be eavesdropping (pdf)

MASSACHUSETTS residents are on the verge of losing a fundamental protection from government spying if the Legislature and governor approve a bill to give prosecutors the power to seize Internet, telephone, and electronic communications records - without judicial oversight and without notifying a citizen they have done so.

The attorney general and district attorneys have attached their power grab to a bill aimed at increasing sentences for sex offenders, which is named “An Act to Further Protect Children” or “Jessica’s Law.” However, the power that they seek isn’t limited to investigations of suspected sex offenders or child abuse cases. It is a general grant of unchecked power to district attorneys and the attorney general that can be used against all of us.

The provision would enable prosecutors to acquire private records from the Internet and other communications providers merely by issuing an “administrative subpoena” - a demand letter - without telling a person that those records are being sought. Local district attorneys and the attorney general would need only “reasonable grounds” to believe that the records were “relevant and material to an ongoing criminal investigation” - which is a low standard.

All we can hope is that them members of this legislature aren’t as tainted by criminality as Congress has been alluded to be (See Glenn Greenwald’s musings on the topic).

Later: In a letter to the editor, the Massachusetts Attorney General simply parrots the standard sophistries talking points — Tools needed to fight crime in high-tech age (pdf)

This bill merely updates the law in order to provide law enforcement with the critical tools necessary to keep pace with technology and investigate various computer crimes such as child pornography and on-line threats, without disrupting the privacy of citizens who use the Internet. I commend the Legislature for giving law enforcement the tools necessary to fight crime in a high-tech age.

Another letter with another viewpoint: Bitter irony in threat to citizens’ freedoms (pdf)

The bill in question is H.4811 (pdf); the text at issue is:

SECTION 3. Chapter 271 of the General Laws is hereby amended by striking out section 17B, as so appearing, and inserting in place thereof following section:-

Section 17B. Except as otherwise prohibited under section 2703 of Title 18 of the United States Code, whenever the attorney general or a district attorney has reasonable grounds to believe that records [emphasis added] in the possession of (i) a common carrier subject to the jurisdiction of the department of telecommunications and energy, as defined in paragraph (d) of section 12 of chapter 159; or (ii) a provider of electronic communication service as defined in subparagraph (15) of section 2510 of Title 18 of the United States Code; or (iii) a provider of remote computing service as defined in section 2711 of Title 18 of the United States Code, are relevant and material to an ongoing criminal investigation, the attorney general or district attorney may issue an administrative subpoena demanding all such records [emphasis added] in the possession of such common carrier or service, and such records shall be delivered to the attorney general or district attorney within 14 days of receipt of the subpoena. No such common carrier or service, or employee thereof shall be civilly or criminally responsible for furnishing any records or information in compliance with such demand. Nothing in this section shall limit the right of the attorney general or a district attorney otherwise to obtain records from such a common carrier or service pursuant to a search warrant, a court order or a grand jury or trial subpoena.

Notwithstanding the provisions of this section, a subpoena issued pursuant to this section shall not be used to obtain records disclosing the content of electronic communications [emphasis added], or subscriber account records disclosing internet locations which have been accessed including, but not limited to, websites, chat channels and newsgroups, but excluding servers used to initially access the internet. Nor shall the recipient of such a subpoena provide any such records accessed, in response to such a subpoena.

So, although it is threatening, Ms. Coakley’s assertion that the bill does not empower the collection of content, only traffic records, is correct. So, maybe I’ll vote for her again.

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