Natural Rights Libertarianism and IP: A Reply to Tom Palmer

One of the hottest topics in contemporary rights-based libertarian theory is the question of whether intellectual property is justified from the moral perspective. While many important historical libertarian figures (e.g. Lysander Spooner) and modern ones (Ayn Rand and Robert Nozick) have defended the ethical foundation of this form of property, I think it is fair to say that the current tide of opinion is flowing in the opposite direction. One reason for this is the influential 1990 essay by Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects” (in Harvard Journal of Law & Public Policy, Vol. 13/3), which is available here,

Before critiquing Palmer’s case against the justice of IP under libertarian principles, I wish to praise his essay as a very useful introduction to the entire subject. It is clear, thought-provoking and intellectually honest in its presentation of the case for and against IP. I learned and benefited a great deal from engaging with it. Having said this, I ultimately found the author’s reasons for rejecting a rights-based justification for IP to be less than compelling.

I will focus here on what I consider Palmer’s central argument (page references are to his essay). This involves the claim that there is an inconsistency between upholding libertarian rights on the basis of a labor-based moral desert theory (such as the self-ownership thesis) and the restrictions on liberty implied by IP. His claim is grounded in the idea that the enforcement of IP rights conflicts with the right of self-ownership because it precludes people from using their own bodies in certain ways, i.e. in ways that infringe patents or copyrights.

So, for example, if A has a patent over a particular invention, all other people within the applicable jurisdiction are legally precluded from using their bodies to make, use or sell this particular bit of technology without a license from the holder (pp. 827-9). Moreover, it is at least theoretically possible that two people will independently invent the same device simultaneously, yet the person filing for a patent first gets full rights to the invention, while his/her competitor must seek a license to use the invention he independently made (pp. 829-30).

I will pause here just long enough to clarify that while I do not subscribe to the self-ownership thesis, which seems to be Palmer’s primary target, I believe that his argument, if successful, would also be telling against Nozick-style libertarianism, i.e. one grounded in respect for persons as rational (moral) agents. Therefore, I will simply proceed as if Palmer’s argument is intended to show that the recognition of IP rights would unduly limit the scope of rational agency.

Palmer recognizes, of course, that libertarian self-ownership and the rights it implies over land and other material goods also restrict the freedom of action of all others. As Nozick puts it, “My property rights in my knife allow me to leave it where I will, but not in your chest.” (ASU, p. 171). But, Palmer holds that IP rights are qualitatively different because “while property in tangible objects limits actions only with respect to particular goods, property in ideal objects restricts an entire range of actions unlimited by place or time…by all but those privileged to receive monopoly grants from the state” (p. 830). Thus, my libertarian rights over a particular abacus only deprives the rest of the world of the liberty to use that exemplar without my consent, while a patent on the invention of the abacus “would be a restriction on the liberty of everyone who wanted to make an abacus with their own labor out of wood they legitimately owned” (p. 831).

This is an ingenious argument, but I daresay that upon close inspection the bright-line distinction that Palmer seeks to establish begins to blur. First, the restrictions on liberty imposed by IP are not as onerous as they might seem at first glance, and conversely, the constraints on our freedom of action created by tangible property rights may be much greater than Palmer acknowledges.

Turning to the first half of this assertion, I believe it should be apparent that patent rights actually represent a fairly trivial restriction on self-ownership. I note initially that all patent regimes in the civilized world grant a relatively short period of exclusivity. In our system, it is 20 years from the date of filing, which in practice means an effective life that is a few years shorter than that. Comparable limitations exist in the systems of all developed countries.

But there is nothing magical about this particular time span. I take it that, as Nozick remarks, the idea is that the period of exclusivity is “a rough rule of thumb to approximate how long it would have taken, in the absence of knowledge of the invention, for independent discovery.” (ASU, p. 182)  Any system that would pass muster from the rights-based libertarian perspective will have this feature. Thus, to use Palmer’s example of the abacus, if there were a patent office back in ancient Mesopotamia, the inventor would have enjoyed his 20 year monopoly several thousand years ago, after which the invention would reside in the public domain throughout eternity.

It is true that copyrights enjoy a much longer period of exclusivity (life of the author, plus 70 years), but this does not seem to constitute an undue burden on the freedom of others to write, compose, paint, etc. This is because the chances of another person independently writing something that copies (for example) the text of the late, great Graham Greene’s Travels With My Aunt, is extremely remote, and thus represents a lesser burden on the liberty of other novelists. I believe the same observation would apply equally to the other genres that are subject to copyright. Here again, once the copyright expires, works of literature, songs, paintings, etc. may be used without restriction for eternity.

I think is also bears mentioning that it is “black letter” law for all patent regimes with which I am familiar (and certainly for any system that libertarians would care to endorse) that legal monopolies will be granted only for inventions and not ideas. Accordingly, you cannot patent your incredibly brilliant idea for a single wonder pill that will cure all cancers, but only a specific and novel molecule or compound that is “useful” in the way defined and required by our patent code. Similarly, an inventor cannot patent the idea of a device that enables a person to perform arithmetic calculations without paper or pencil, but only a specific, original device that enables a person to do so.

Accordingly, a patent on the abacus would not prevent the invention of other novel methods of doing arithmetic automatically, such as the mechanical adding machine and the electronic one. Similarly, Greene’s copyright on Travels doesn’t preclude other authors from writing about eccentric, adventurous mothers posing as their son’s aunt.

Of at least equal importance, libertarian rights over tangible things may be just as onerous as Palmer supposes IP to be. Thus, in contrast to the finite life of patents and copyrights, once title to land is justly acquired, the owner can hold it for his/her entire lifetime, and then control its use even after death by bequest. The owner might also place the land in a trust that will govern its use in perpetuity. Thus, I may acquire vast tracks of Western land (a la Ted Turner) and dedicate them as a nature preserve, which will restrict the self-ownership of all others for all time by prohibiting them from using their bodies to trespass on this land.

Moreover, under rights-based libertarian principles the owner of a particular resource might legitimately gain a position that will limit the freedom of all other individuals over “an entire range of actions unlimited by place or time” (the same indictment Palmer lodged against IP). Suppose that some particular rare mineral is required in the production of certain high-tech electrical devices. For the time being there are many sources for this input.

However, a particularly clever entrepreneur calculates that within a few years all sources of this mineral but one will be exhausted, and that it will take many years, if ever, for new deposits to be identified and developed. This wheeler-dealer acquires the one sustainable mine and waits for the others to shut down. When this occurs, she will enjoy a veto right over the production of all the gizmos that require this rare metal, just as if she had a patent over these devices, except that this monopoly may be of a potentially infinite duration.

Before leaving this subject, I should note that there is also a parallel in the libertarian theory of tangible property to the problem Palmer cites with respect to simultaneous invention. It is uncontroversial for natural rights libertarians that in a Lockean state of nature, ownership of wild fruits and game belongs to that party who first reduces them to possession. Therefore, two hunters may each spot a wild deer grazing on unclaimed land at the same moment, load their respective arrows, and it may be pure chance that determines which arrow strikes first. One hunter will own the prize, while the other takes nothing. A similar story could be told with respect to two explorers, each of which intends to claim an uninhabited island.

Accordingly, there does not appear to be, as Palmer contends, a qualitative difference in the degree to which libertarian rights limit freedom in the case of material and ideal property. This leaves Nozick’s justification for IP unscathed. He argues that people are morally entitled to full capitalist rights over natural resources so long as they improve the property in a substantial way and do not disadvantage others in the process. See the discussion in Nozick’s Libertarian Project, pp. 34-8. He applies this same analysis, grounded in desert, to patents.

Just as a homesteader improves land as a condition of morally legitimate first acquisition, an inventor improves the state of the art in some particular field of technology. And, as Nozick observes, “An inventor’s patent does not deprive others of an object which would not exist if not for the inventor” (ASU, p. 182). Moreover, as noted above, the interests of other would-be inventors are protected by the limited duration of the legal monopoly. In light of the points made above, Palmer gives us no reason to reject Nozick’s theory of original appropriation as applied to IP.

Of course, Palmer’s essay does not exhaust the supply of moral arguments against IP, but I believe that the above analysis undercuts what might be the most influential of those circulating about.

Finally, nothing herein should be construed as a defense of our actual code of IP law or the manner in which it is practiced in the “real world.” From what I can gather, this is an absolute, anti-competitive mess. Nevertheless, just as the evident difficulty of implementing the criminal law requirement of proof “beyond a reasonable doubt” in a fair and impartial way does not by itself discredit this standard, so too the problems with our existing IP system do not demonstrate that the very concept of IP is fatally flawed from the moral point of view.



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12 Responses to Natural Rights Libertarianism and IP: A Reply to Tom Palmer

  1. Jeremy says:


    I came here from the BHL blog post on Tomasi’s book workshop, where I saw you posted a comment with a link to another post you made on immigration, and that had a link to here.

    I just want to say that first of all, I’m glad there is someone out here defending libertarian minarchism from the anarcho-capitalist hordes, and secondly, that you’re also defending intellectual property (at least in the abstract, and not with the current mess we have today.) I see way, way too many libertarian saying that intellectual property is immoral and must be eliminated, which in my mind (as a creative writer) is an ill-thought, immature mistake. I can just imagine what would happen without IP; while it might not be as horrible as the MPAA and the RIAA say it would, I do think a lot of content providers would just quit and we’d have a lot less media today.

    Your argument on ideas is also bang-on. Far too many people misunderstand that, even libertarians who are creative types. I just don’t get why that isn’t completely and totally stone dead obvious to these folks.

    Anyways, keep up the good work! I’m glad there are others out there fighting the good fight.

    PS: I wrote about this subject for United Liberty here.

    • Mark Friedman says:

      Hi Jeremy:
      Thanks for stopping by, and for your kind words. I read your post at “United Liberty,” and we are definitely allies on this issue, and I suspect many others as well. I believe that the hatred of IP protection by anarcho-capitalists is simply a function of their hatred of the state. Accordingly, anything (national defense, law enforcement, IP, etc.) that might justify the existence of the state has to be shown to be unnecessary or unjust. On my agenda is a second post on IP, this time taking on the arguments of another prominent libertarian IP opponent, Roderick Long. For the record, I am certainly no fan of the state, and would love to see it fade away, but for the present I consider it a necessary evil for certain functions.

      • Jeremy says:

        In one sense I am a philosophical anarchist, in that I believe there is no special “moral” duty to obey the state (for instance, if the government told you to run out and kill Jews, disobedience to that decree would be the moral course of action.) I just don’t see how a totally private law enforcement sector would work. There is a need for a limited government in that regard. (Beyond that, the only three things I can think up are national defense, the provision of public goods properly understood, and I’m coming around to the idea of a basic income, though that’s more of a “it would be better than what we have today” argument than a moral one. Hayek liked it, even though I cannot completely understand his arguments for it.)

        We’ll likely never get even to that small form of government, but I think it’s a laudable goal. Fighting for anarchism, though, just seems really counterproductive to me. Unless we have a post-scarcity economy, we’re never going to have an anarchist society, and maybe not even then. I’m content to reform our government until it is far smaller and respects our natural rights, and then leave it be. It would probably be better for humanity anyhow. Tis a shame so many libertarians out there just stamp their feet and demand it to be abolished, rather than recognizing what good it has brought and seeking instead to reform it and fix it. Seems kinda immature to me.

        • Mark Friedman says:

          Hi Jeremy:
          I think we are pretty much on the same page here. I discuss my argument for the state as a necessary defender of a relatively just society against potential foreign aggressors and in connection with law-enforcement here: // I think the state also has a role, at least in theory, as the provider of a safety net for those truly unable to fend for themselves. I say “in theory” because in practice the state often makes things worse. I go into more depth in my book. I agree with you that simply being born into a particular political environment does not obligate you to obey the law, although it may be prudent to do so.

          I do regard the state as a necessary evil. Much of the poverty seen around us is due, in one way or the other, to its misguided and corrupt interventions in people’s lives. I don’t think its likely to fade away anytime soon, but I think when this finally happens, poeple will say “good riddance.”

  2. There is another line of argumentation against IP, described by Kinsella. I hope I can summarize it accuratly: the nature of ideal objects does not justify property rights, unlike real objects, because they lack rivalry.

    You and I cannot simultaneously eat the hunted deer. The actions of the second hunter are excluded by the actions of the first hunter. This rivalry is the natural cause for assigning property rights.
    Only one of us can use it, so we argue to a reasonable mediator. Which one has the better claim? The first one to get the deer took possession with no contest. The second one is trying to transfer possession without consent. Possession is retained by the first hunter.

    On the other hand, you and I can invent a light bulb, or I can copy your design, or I can copy your song. None of the actions using this ideal object (light bulb design or song) will be mutually exclusive. You can still produce all the light bulbs you want and sing and print CDs for the song as you desire. Let’s say you did go to a mediator and ask to resolve the conflict, what would you claim to have lost?
    Of course, the market value of your light bulbs and CDs will be lowered because of my copies, but value is in the mind of the customer, which you don’t own. Also, rights in market value would lead to absurdities with property rights in real objects: the car producer and other substitutes would be violating the rights of the horse breeder.

    • Mark Friedman says:

      Hi Julien:
      Thanks for the thoughtful comment. Please pardon my somewhat delayed response, as you were temporarily caught in my spam filter. I am familiar with this argument, and I think you have provided an effective summary.

      I think Kinsella is correct that rights are not moral bedrock, and that their substance will reflect underlying moral values. But why is resolving rivalrous property claims their only or primary function? Why should rights not also, or even primarily, function to promote justice? This, anyway, is my view.

      Arguably, at least, a person who reduces a useful idea to actual practice creates commercial value, which he is entitled to retain, much like the homesteader who transforms raw land. It would be unjust to allow others rent-free access to this “property.” I realize that this is not an airtight defense of IP, but I don’t regard Kinsella’s argument as decisive, either.

  3. Derek says:

    Very good thoughts on IP.

    Very thorough evaluations of the issues.

    I like to use thought experiments to evaluate these kind of things.

    I think the question of IP is essentially a question of authority.

    Where does the government get its authority and what can it do with it?

    Until you agree on the nature of state authority, I think it would be very hard to come to any agreement on the nature of intellectual property.

    Authority is a complex philosophical issue, and I don’t feel like I have a full grasp of how it works.

    Even so, I have a couple concepts as to what authority is, and what conditions might justify authority.

    One justification for authority is interaction and externalities. Our actions affect each other for good or for bad, both directly and indirectly. We occupy a limited space together, and our actions all weave together in creating the future of that entire space.

    If our actions were isolated and only affected ourselves, then there would be no need to make considerations based on things external to that system.

    Authority comes from the need for awareness and accountability for global repercussions of actions.

    That is the best justification for authority I am able to come up with. If you have a better explanation for the origins of authority I am interested in understanding this issue better and would love to hear your thoughts.

    Because authority is based on interaction, it seems unfair to use authority to impose interaction where no such interaction would occur otherwise.

    I’m not sure if this leads to an argument against IP, but I definitely think it could.

    Without IP, most interactions involving information would be fundamentally one directional. Information originates at a source and disseminates out into its environment, just like ripples on a pond.

    When we talk, we produce sound that escapes us and at that instant we lose control over what happens to it. But through experience and learning we can predict what the effects might be.

    The vibrations of our vocal chords cause air molecules to vibrate. These vibrations propagate through the air and enter someone’s ear drum. The ear drum of the recipient then vibrates and produces an electrical signal which enters the brain where the brain processes it.

    Once we have made the sound we have no control over what happens to it. The information is disseminated naturally, without force or interference. The objects disseminating the information are inanimate, so it makes no sense to say the have any kind of accountability or responsibility in this process.

    The question of intellectual property only makes sense because we are able to process physical information and return it to its abstract form.

    Palmer has a quote about metaphysics in his article, which I believe is directly relevant to this scenario.

    It argues that law must concern itself with both the physical and the metaphysical.

    I’m not sure exactly how to address the these kind of metaphysical questions, but it seems to me like the metaphysical nature of information is very analogous to the physical scenario I described.

    Just like sound waves propagate outward from a source, abstracted information propagates outward from the creator.

    In most instances there is a great deal of information loss involved in this dissemination.

    The originator has an observation or an idea, and then he communicates this information to someone else, who processes that information and then repeats his own slightly modified version.

    Intellectual property only becomes a valid question when abstract information is disseminated with a high degree of fidelity.

    When information is transmitted with a high degree of fidelity, it is possible to trace it back to a unique source, otherwise, the origin of the information is unclear because the signal that has been influenced by many different sources.

    When analyzing intellectual property, I think that the physical dissemination of information is nearly a perfect analogy for what happens to abstracted information that is retransmitted by accountable agents.

    To effectively evaluate the nature of abstract information and the validity of Intellectual property requires familiarity with the scientific and mathematical study of information, IMO.

    Information theory, pioneered by Claude Shannon is highly relevant to discussions about IP. Information is essentially entropy, or disorder or unpredictability.

    In nature information always flows outward. There is no mechanism to reclaim or control it once it has left the source, unless some entity naturally reflects or repeats that information. Systems where transmitted information returns to the source and affects its behavior are called feedback systems.

    (I guess there is also quantum entanglement, but that own seems to manifest on a small scale, the emergent properties of interacting matter seem more important to our concerns scenario).

    In our world of business and in our economy, I see two ways that information can return back to the source and affect it, creating feedback. One is if the recipient voluntarily responds to the information and communicates back to the source. The other is if the source actively manages or tracks that information and follows up with the recipient to invoke a response from the recipient. Intellectual property enforcement falls in the latter category.

    It may seem like economic arguments are secondary to questions morality in creating law, but in the case of IP, I think that economics perfectly models the amount of interaction required by respective parties to get the results they want.

    In this way, the economics of intellectual property may provide insight into questions of its morality and legitimacy. If it takes significant effort to enforce authority over information, then that may be an indication that such authority is not legitimate because the interaction comes from the effort of enforcement, not because the parties naturally interact bidirectionally and have mutual obligations to one another.

    I realize this argument only makes sense based on my interpretation of authority and several potentially problematic logical steps. That’s why I wanted to discuss it here.

    I have one more thought experiment on this matter I would like to present.

    Imagine humanity has expanded to several planetary systems.

    We have have the ability to communicate to other planets. We can send them information and in turn receive transmissions, but this process takes several years.

    Intellectual property cannot be enforced except locally for these systems, because the restrictions on time and travel.

    If one system ignores the IP claims of another, they have no ability to redress this problem.

    In fact, even if the systems wanted to respect IP claims, this would be difficult, because of the time delay between the systems.

    This hypothetical scenario mirrors many of the problems that we face with IP enforcement internationally. Culture, politics, and laws create legal barriers that make IP enforcement across intellectual boundaries difficult or inappropriate in many situations.

    It is most appropriate to rely on the local governmental authority to provide enforcement for intellectual property rights. This is a matter of respecting sovereignty. If the other international entity doesn’t have the same culture and laws regarding IP, then what do we do about that?

    It seems inappropriate to start a war over IP, the most appropriate response might be to not provide reciprocal IP protections that the foreign country was never actually expecting in the first place.

    IP works most effectively when enforced on individuals within the same legal jurisdiction, or within jurisdictions with mutual IP agreements. But is there something fundamentally different about sharing information with someone from the same jurisdiction as opposed to sharing that information with someone from another jurisdiction?

    Global governmental authority could resolve international IP enforcement issues, but are international IP claims illegitimate or inappropriate only because we have not as yet developed sufficiently effective global governmental entities?

    With intellectual property enforcement, the authority of the state needs to be used much more frequently than is the case with physical property rights. With physical property, the property owner is the primary party protecting their property interests. They construct walls or fences, they put locks on their door. The state is only involved when something exceptional happens.

    With intellectual property enforcement the individual is not able or authorized to do much about their property claim without the authority of the state.

    I am most interested in hearing your thoughts on the nature of authority because I feel that is the most central part of the question of IP. In my opinion, exploring mathematical and physics principles related to IP, especially the nature of information, is important in deciding if IP enforcement is a legitimate authority or not.

    Finally the economic issues of IP are very important here. First, the question of whether IP provides public benefit has received a lot of attention, but I think most commentary is inconclusive speculation. There are good arguments on both sides. Secondly, the costs and benefits of enforcement are important on a practical level. Finally, I think there are very interesting connections between the moral issues of IP and the economic issues.

    Finally, despite my skepticism of IP, i still believe that plagarism is wrong and that there may be a place for trademarks and trade secrets. I’m not sure how this would relate to the arguments I present here.

    I would love to hear your thoughts.

  4. Mark Friedman says:

    Hi Derek:
    Thanks for the long and thoughtful comment. I am pretty busy being a parent these days, so I am afraid this response will not be as detailed as I might like, but I will offer a few brief thoughts.

    I think you are right to focus first on political authority. In my opinion, the state can only justly undertake such functions as are required to protect the libertarian rights of its citizens, most obviously national defense, and the enforcement of civil and criminal law (I discuss this a bit here: // Clearly, on this view, the state is justified in protecting its citizen’s legitimate property rights. Thus, the question of IP protection rests on whether IP constitutes justly acquired property. For the reasons set forth in this post, I believe it does.

    In the absence of government, inventors and authors would attempt to exploit their IP through contracts and technical means. I don’t know how successful they would be, but they would face no statutory time limits, as they do now. So, I am not sure how different the state’s role is with respect to the protection of IP compared to conventional property, particularly if you think that things would be substantially more violent and chaotic if the state did not claim a monopoly of force.

    As you note, the harmonization of IP law across jurisdictions is normally handled by treaty or by permitting IP holders to apply for protection in the foreign country on a non-discriminatory, reciprocal basis. Assuming the IP holder has jumped through the right hoops, I don’t see why foreign enforcement is any more or less morally problematic than domestic enforcement.

    Finally, I am not a utilitarian, so I am not hung-up on the economic implications of IP protection.

  5. Derek says:

    I think we differ dramatically on our conclusions about IP.

    I feel an individual has a right to claim authorship, and that others have an obligation to respect that claim, however, the authority to forcefully control the distribution of published information is completely unjustified.

    Plagarism is wrong, but copying isn’t.

    In fact, I believe that IP enforcement is immoral because the punishment is clearly worse than the infringement. Authorship is not sufficient justification to imprison people, take their money, or shut down their businesses(in the case of patents).

    We have an obligation to recognize authors, creator and inventors, but no obligation to pay them money. IP creates inappropriate expectations for authors and inventors. It makes a false promise that creative endeavors justify authoritative and oppressive business tactics.

    People who embrace IP authority are usually confused by traditional IP expectations, so they have a hard time understanding our true moral obligations with regard to information.

    Before the printing press, books were copied by hand. Copying took just as much effort as writing the original, and the person who copied it was clearly entitled to their copy, even though it would be inappropriate to claim authorship.

    If one person wants to share information with another, those two parties may enter into an agreement or contract about sharing that information. If the receiving party breaks this agreement, he is in the wrong. However, no other party is bound by this agreement. Anyone else who receives that information is free to do with it as he wishes. They may not claim authorship, that would be fraud. But they have no obligation to respect the original agreement because they were not one of the parties involved.

    Creating information does not give you global authority to enforce control over the distribution of that information. States that attempt to support this claim serve as proxies for an extortion racket.

    • Mark Friedman says:

      Yes, we do seem to differ dramatically, but that’s fine with me because I am comfortable with the idea that reasonable libertarians can disagree on this subject. Your key sentence seems to be, “Authorship is not sufficient justification to imprison people, take their money, or shut down their businesses (in the case of patents).” However, at the very least, I think you are exaggerating.

      People do not typically go to jail for violating IP protections because they are usually enforced in civil court for monetary damages. And one key aspect of patent law is that they are published and publicly available, so infringers get sued because they decline to take a license, the cost of which does not usually force them to close their businesses. But most importantly, you are simply assuming that IP is different from tangible property, and if you steal my car or my jewelry you really may go to jail. So, if IP is like other forms of property (as I argue in the OP), its owners are entitled to a similar degree of protection.

      None of this is to defend our existing system, which is miserable, but you have certainly not offered any decisive argument showing that IP is not property, and therefore not entitled to customary legal protection.

  6. Siloh says:

    How should libertarians regard the current legal and regulatory framework and does it help or hinder progress in the digital age? And when considering reform, how can policymakers balance the interests of creators while limiting the potential for regulatory capture and industry-driven cronyism?

    • Mark Friedman says:

      Hi Siloh:
      You ask perfectly reasonable questions, but I am afraid I don’t have the expertise to give you well-informed, convincing answers. From what I can tell, the current legal framework is a mess, making patents too easy to obtain, and incentivizing their use not as a means of protecting real innovators, but as a weapon to extort money from producers. The system clearly requires reform, but I am afraid that I am not qualified to get into the details.

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