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  Click here to go to the first staff post in this thread.   Thread: Weasyl and copyright law

  1. #1

    Weasyl and copyright law

    Judging from feedback I've gotten from others in similar situations, Weasyl is now undertaken a course of protecting themselves from copyright complainers to a ridiculous level, removing any derivative works, such as drawing that contain pictures of copyrighted characters, even if they were publically displayed, such as, say, a cardboard display stand at a movie theater that was placed there SPECIFICALLY to have pictures taken of it.

    They are even removing any music which relied on legally purchased backing tracks if they do not have written permission from the copyright holder of that specific song on file.

    Let's look at the latter of these, for a moment. There are multiple layers of copyright on songs. The topmost is the copyright on the recording itself. Then there is the copyright on the performance. Then there is the copyright on the arrangement. Then there is the copyright on the melody, the lyrics, even the title.

    Which means, even if I were to get out my own guitar and sing a song, record it and post it anywhere on the net, I am in violation of copyright, as I did not get explicit permission from the songwriter to do so.

    Now, chances are, the songwriter is not going to go after me, simply because it is just not worth their time to do so. Someone, or perhaps many someones, have paid they plenty to sing the song, and it just isn't worth their time and effort to prevent people from singing it (plus the very bad PR they would get if they did).

    Now, if, on the other hand, I put it up on iTunes and started selling it, yeah, chances are the songwriter would, and I have a moral and legal obligation to share the profits of the performance with the songwriter.

    Now, let's go up a level. I get a group of musicians together and we do a cover of a song together duplicating the arrangement of the song. Chances are, again, the arranger would not go after me, for the same reasons as the songwriter. Not worth the time and effort.

    Now, let's go up another level. I purchase a backing track. Okay, NOW we run into the RIAA which has a strangle hold on the recording industry and seems to want to shut down everything that they are not getting money from. This is where the stifling of the creative process starts. And it is from the RIAA that Weasyl wishes to protect itself.

    So, even though the backing track has been legally purchased, even though no monetary exchange takes place to the singer, even though they simply cannot prove that they are losing any money over allowing someone to do this, they are bullying sites into shutting this down.

    It's ridiculous, but because they have the big bucks, they can bully smaller fish into complying with their demands.

    Perhaps a coalition of websites need to band together to fight for Fair Use, especially in situations where the RIAA is obviously not losing money.

    Otherwise, we are going to find ourselves being shut down completely as even original artwork could be construed as being derivative of something else.

  2.   Click here to go to the next staff post in this thread.   #2
    Retired Staff Tiger's Avatar
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    Quote Originally Posted by Dipper View Post
    Judging from feedback I've gotten from others in similar situations, Weasyl is now undertaken a course of protecting themselves from copyright complainers to a ridiculous level, removing any derivative works, such as drawing that contain pictures of copyrighted characters, even if they were publically displayed, such as, say, a cardboard display stand at a movie theater that was placed there SPECIFICALLY to have pictures taken of it.
    This is not exactly true. We do not remove pics of copyrighted characters, unless it is either 1) content that was not made by you/for you (for example, we've had to remove this image from at least 3 separate galleries, because the people who uploaded it did not make the screenshot of Nick, do not own the screenshot of Nick, and the screenshot of Nick was not made for them to use. However, we would not remove a fanart drawing of Nick, as long as it is not traced/stolen. If someone took a picture of themselves next to a cardboard cutout of Nick and Judy, we would remove it under II.B.7 in the Community Guidelines for being a picture of yourself with no artistic content (a mass-produced cardboard cutout found at a movie theater does not qualify as artistic content).

    They are even removing any music which relied on legally purchased backing tracks if they do not have written permission from the copyright holder of that specific song on file.
    I will address this part at the bottom of my post.

    Let's look at the latter of these, for a moment. There are multiple layers of copyright on songs. The topmost is the copyright on the recording itself. Then there is the copyright on the performance. Then there is the copyright on the arrangement. Then there is the copyright on the melody, the lyrics, even the title.

    Which means, even if I were to get out my own guitar and sing a song, record it and post it anywhere on the net, I am in violation of copyright, as I did not get explicit permission from the songwriter to do so.

    Now, chances are, the songwriter is not going to go after me, simply because it is just not worth their time to do so. Someone, or perhaps many someones, have paid they plenty to sing the song, and it just isn't worth their time and effort to prevent people from singing it (plus the very bad PR they would get if they did).

    Now, if, on the other hand, I put it up on iTunes and started selling it, yeah, chances are the songwriter would, and I have a moral and legal obligation to share the profits of the performance with the songwriter.
    As far as I know, if every part of the song was performed by yourself, and you were not making a profit, and gave full credit where it is due, the songwriter would not file a lawsuit against you. This is because you are not using any of their copyrighted assets in your cover version of their song. When you use any content that they recorded and they legally own, the legalities get a little risky.


    Now, let's go up a level. I get a group of musicians together and we do a cover of a song together duplicating the arrangement of the song. Chances are, again, the arranger would not go after me, for the same reasons as the songwriter. Not worth the time and effort.

    Now, let's go up another level. I purchase a backing track. Okay, NOW we run into the RIAA which has a strangle hold on the recording industry and seems to want to shut down everything that they are not getting money from. This is where the stifling of the creative process starts. And it is from the RIAA that Weasyl wishes to protect itself.
    So, even though the backing track has been legally purchased, even though no monetary exchange takes place to the singer, even though they simply cannot prove that they are losing any money over allowing someone to do this, they are bullying sites into shutting this down.
    Here's the part where I said I would address it earlier on in my post. We have not received any legal notices from companies who want us to take music down. We are, however, following our rules as they are written and doing what is best for us as a site in terms of following the law. If you are using assets that were recorded by an entity other than yourself, we need to know what that entity allows in terms of derivative works. I did a lot of research on different websites and companies in terms of what they allow and what they don't allow people to do with the recorded backing tracks they allow people to access. It turns out that some karaoke sites, while they allow people to download the background music of songs, do not allow people to use their provided content to create derivative works (therefore, if people are using music from these karaoke sites, we need to take it down). If it is a paid for, recorded backing track made by the company, then they have a certain license they provide the buyer to use with the song(s) they buy. So if a Weasyl user is using paid-for backing tracks on their music submissions, the staff needs to know about the license the company who owns the backing track provides so that way we can be reassured we're not hosting content that is illegal to host under that company's terms.



    It's ridiculous, but because they have the big bucks, they can bully smaller fish into complying with their demands.

    Perhaps a coalition of websites need to band together to fight for Fair Use, especially in situations where the RIAA is obviously not losing money.

    Otherwise, we are going to find ourselves being shut down completely as even original artwork could be construed as being derivative of something else.
    To make a long post short:

    1. Not every single instance of a copyrighted character is going to be removed. We allow submissions to be uploaded on a by you/for you basis- if you made it yourself, or someone made it specifically for you, then it's fine. But if you go to Google Image search and take content off of there and don't credit it properly, staff will either remove that content or ask you to properly credit the original source (whichever is applicable).

    2. If you recorded every single part of a music submission yourself- such as recorded it with your own guitar, someone else plays drums, and someone else sings- then we are not going to remove it. If you sing A Capella, we are not going to remove it. Music submissions are -only- liable to be removed when they use copyrighted content not made by yourself. This is all assuming you give proper credit where credit is due.

    3. We have not been asked by any company to take down music submissions. We are asking people who use copyrighted content to tell us where they got it from, so that we know there is no legal contract broken by hosting the content on the site.

    I hope this clears things up. If anyone who is very well versed in copyright laws reads this and wants to correct me, by all means go ahead. I am speaking from what I was taught in my college classes and what I have read online about copyright laws, and certain companies' Terms of Service. I am also speaking on my knowledge of how and why Weasyl enforces its rules.

    Thank you.
    Last edited by Tiger; 04-13-2016 at 01:48 PM.

  3. #3
    Sorry, I did not mean to imply that every single image of a copyrighted character would be removed. I was not actually addressing Weasyl's policies, just the legal atmosphere that brought about Weasyl's policies.

    In actual fact, however, even singing a song covered by copyright is a violation of that copyright if I do not pay a royalty to the songwriter. While I may play the music and sing the lyrics, the melody, chords, and lyrics are covered by the copyright owned by the songwriter, and, if they so chose, they could demand that the song be taken down. This is what Harry Fox and Limelight are for. Many is the site that has posted lyrics that had lyrics of a particular song removed because the songwriter had a snit. Ever wonder why so many lyrics online have mistakes in them? That's why. They can't really claim the lyrics are theirs if they are not correct.

    But I have also heard of people who have had artwork put on top of public cutout displays removed because the background was not an original work. Now, I have no clear examples of this, so I may be wrong.

    I just think more people have to push back against the RIAA and the MPAA and large corporations such as Disney who are preventing songs and movies from entering the public domain long after the creators have passed away.

    Two videos demonstrate this beautifully:

    http:/www.youtube.com/watch?v=tk862BbjWx4

    http://www.youtube.com/watch?v=CJn_jC4FNDo

  4. #4
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    The thing with copyright is that the most sound advice about it would be from a lawyer. Copyright and Fair Use is really grey area in the law that I prefer to avoid getting into confrontations about. Typically, you'll be alright if you aren't making money off of copyrighted content or claiming it as your own. You can be sued if what you're doing doesn't fall under Fair Use, but companies tend to let things slide because like you said, they'll get bad PR if they're too draconian about it.

    Big companies can, and many times have, harassed people with the copyright system. I can think of only one instance when that kind of bullshit lead to a big backlash: Operation Chanology. Big companies can legally harass people because sheeple give them the money to do it; fans of these companies are at fault as much as the companies themselves for enabling that behavior.
    -Insert inspirational quote here-

  5. #5
    I have decided to abandon my presence on Weasyl.

    It is a shame, because you had a format and features I really liked. However, the administration has gone overboard in their policy enforcement. This is especially true for vocal musicians.

    Two weeks ago I received a message citing site policy, and saying that submissions that use a backing track longer than 30 seconds was in violation of policy and must be removed.

    I, of course, responded incredulously. A vocal musician either has to create their own backing track or sing a capella in order to comply? Seriously? And only after having the items up there for over two years do they now come and ask me to remove them?

    Inquiring further, they said it was because of copyright concerns. Well, to be perfectly honest, even doing your own backing track or singing a capella is still a violation of the copyright of the songwriter. So, why allow covers at all?

    In addition, why even make a backing track available if they aren't going to permit you to sing to it? Oh, sure, if I were to distribute it and charge people money to listen, yeah, that would get the attention of both the backing track company and the song writer. But in my experience, which goes back ten years, they don't bother with small potatoes, even if they do make a few bucks, which I never have, except in the form of an occasional donation. And while most backing track websites say something like the following:

    "This website respects all music copyrights. All rights are reserved for the protected works reproduced on this website. Without permission, all uses other than home and private use are forbidden."

    This obviously brings up the question, "What constitutes private?" Singing karaoke at a birthday party usually qualifies. Singing karaoke at a convention usually does not. But you don't find the RIAA coming after cons for hosting a karaoke night. A restaurant that features it once a week, sometimes. But not usually. But furthermore, even if it is used in a money making venture, it is the creator of the backing track, not the distributor (most backing track website share their tracks with each other. It's easier than reinventing the wheel) who complains, since they are the ones holding the copyright on the recording.

    And this brings up the main point: It is the duty of the copyright holder to defend their copyright. It is NOT the duty of a website to do this preemptively. In other words, a website that hosts artwork, music, etc. does not have the duty to go searching through submissions to find items that violate copyright. This is primarily because it is a waste of time and energy that can be devoted to more important things. Every website I know of can, and will, respond to a complaint that a particular item is in violation of a copyright. They will usually NOT go searching for violators themselves.

    And there is a very good reason for this. Not only is it not their duty to do so, they can make mistakes in judgement and take down submissions that are not copyright violations.

    Which is exactly what happened to me. Since most of my submissions contained backing tracks, it simply was not worth my time and effort to remove them myself, ESPECIALLY when in doing so, I would disrupt my primary work, The Beach Bears Story, leaving it with huge gaps. It would be like going to the movies and sitting through fifteen minutes of disjointed scenes, and coming out wondering, "What the hell was that?"

    So, I decided to simply let them take them down for me.

    Which they did...but not all of them. In fact, most of the ones they took down were where the ICON was in violation of their guidelines.

    The ICON!! I have searched the internet and found absolutely NO lawsuits involving icons except between big names like Apple and Microsoft. I frankly doubt that anyone would give a rats ass if someone decided to use their copyrighted item as a freaking icon for a piece of music, since it is the music, and not the icon being featured. Oh, if when asked they claimed they made it themselves, that's a different story. But to be expected to cite the source of icons when nobody gives a crap?

    In addition, they took down submissions where the icon was clearly of things in the public domain: famous paintings, landmarks, even icons I created myself!

    They took down every single one of my Christmas Carols, many of which not only contained icons clearly in the public domain, but the music itself was in the public domain! Much of it sung a capella!

    This is why a website does NOT go preemptively protecting the copyright of someone else until such time as the copyright holder complains. Because they end up going too far and pissing people off needlessly.

    Weasyl has gone too far. I refuse to put up with this crap, and have removed all submissions.
    Last edited by Dipper; 04-24-2016 at 12:26 PM.

  6. #6
    I should also add that I have received the following note from a very reliable source, one who has actually taught copyright law:

    "What Weasyl fails to realize, this preemptive removal puts them in the position of copyright enforcer. By becoming a copyright enforcer, they surrender their safe harbor position under the Digital Millenium Copyright Act (DMCA.) That means they are now the ones that can be sued immediately if any copyright material is found on the site. Under safe harbor, the standing position is they didn't know the material was copyrighted until alerted by the copyright holder or their representative by the filing of a DMCA notice. They then have a period of time to remove the material and can't be sued if they comply with the notice. But by taking the initiative like this, they're no longer covered by safe harbor. No intelligent operator of a user-posted site would operate under that provision because they can't possibly cover 100% of all copyrighted material posted to the site. "

    So, by doing what they have done, they are not protecting the site, they are jeopardizing it.

  7.   Click here to go to the next staff post in this thread.   #7
    Retired Staff Tiger's Avatar
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    So I'm probably the last staff member you want to hear from, as you and I have spent weeks going back and forth trying to figure out this issue. If you'd rather talk to someone else, just say the word and we'll have someone else take on this case. But for now, as the staff member who knows the most about what you've gone through the past few weeks, I'm the one who decided to address this publicly.

    I did mention to you that our "No clips longer than 30 seconds are allowed" policy was going to be reviewed. It is still on our list of policies to be reviewed. We cannot simply make rule changes in one day. We have to have a mod team meeting, spend some time talking about why it is an issue, how we can fix it, write new wording into the Guidelines, code the new wording in and push the code, then write and push a news post to inform users of policy changes. We have one 3 to 4 hour mod team staff meeting every week, and we have a lot of items on our list to discuss, so it takes up to several months to make enough changes to the Guidelines to warrant a code push and News Post push. We don't have the ability to just up and change a rule on a whim. So right now we try to avoid using this rule to take down music submissions. We'll use the rule if it is the only one that applies, but we'd rather not enforce this rule as hard-handedly right now because quite frankly, it's just a bad rule, no one on the mod team likes it, and we all want to change it.

    However, if the music submissions also violate a different rule, then that is fair game for staff to contact the user and enforce the other rule that is being broken. For example, if a submission's cover art and thumbnail are plagiarized, staff has the ability to remove the cover art and thumbnail. Usually we give the user 72 hours to properly cite their sources, and if they don't, we zap the cover art and thumbnail under section I.A.3 of the Community Guidelines. We only have the tools available right now to do this on individual submissions, not in bulk, so in cases where there are several hundred or more submissions with cover art/thumbnail violations, we reserve the right to just remove the submissions in bulk.

    To make another issue clear- staff does not go searching for copyright violations. I agree with you, this would take too much of our time that we could spend on other website related issues. However, our users regularly report these violations using our report system, so when it is reported, we as staff have the responsibility of looking into the report, checking its validity, and if there is action to be taken, we do what we deem appropriate. Our usual response to plagiarism tickets, as mentioned earlier, is find out if the plagiarized source is free to use, then if it is, contact the user and ask them to cite the source within X amount of hours (usually 72) or the submission(s) will be removed. If the source is not free to use, the submission(s) is/are removed immediately.

    We could certainly take on the policy that, unless the copyright holder contacts us telling us that their copyright has been violated, that all reports sent in by third parties are invalid and close them without looking into them. But for 3+ years now, Weasyl staff has taken the position that we do not want to host stolen content on our site if there is clear evidence that the source of the stolen content is NOT free to use. That is our policy, as a private website, and we reserve the right to operate under this fashion.

    Also:



    So, I decided to simply let them take them down for me.
    I really, really wish you had told me this when we were working on this issue privately, because then a lot of these problems could have been avoided. If you had really wanted staff to just take down your entire gallery, you could have simply said that, it would have been done, no questions asked, and we'd have been done there.

    And yes, we do take cover art/thumbnail plagiarism seriously. Just because it is an "icon" does not mean it's okay to for someone to take any image they want off the internet, use it as they please, and not give credit to the original creator of the content they used.



    In addition, they took down submissions where the icon was clearly of things in the public domain: famous paintings, landmarks, even icons I created myself!

    They took down every single one of my Christmas Carols, many of which not only contained icons clearly in the public domain, but the music itself was in the public domain! Much of it sung a capella!
    Staff cannot be expected to know every image in every public domain website. When we find a gallery where we find that many, many submissions contain content taken from sources that are not in the public domain, we reserve the right to assume that all the content is not in the public domain. Also, when there are over 600 music submissions in a gallery, it is unreasonable to expect one person, or two or three, to listen to every single submission in the gallery to determine if it violates the rules. Again, we reserve the right to assume that if the first 60 or so submissions contain violating content, then most, if not all the gallery contains violating content. Would it be better to find every image source and every music submission source? Sure, but then you've got multiple mod team staff members spending hours a day, for several days or more, working in a single gallery trying to locate everything. For your gallery, we had one staff member spend over four hours listening to as many submissions as they could, and they got through about 50 or 60 of them, and they were almost all violations. You had nearly 700 submissions. It is not reasonable to expect us to listen to all of them to find out which are a capella, which are public domain, etc.

    If you still have problems with how things have gone, you are, as I told you privately, welcome to email our support email, support@weasyl.com, and another staff member will review my actions and see if I was in error in removing most of your gallery.

    As a side note, I'd like to know who your source is for your most recent post in this thread, and if they'd be willing to talk to our staff about if we're handling copyright enforcement wrong. Please let me know, and I'll give them an e-mail to contact if they're willing to talk to us more in-depth.

    Thank you.
    Last edited by Tiger; 04-26-2016 at 09:52 PM.

  8. #8
    Thank you for the clarification, but there is a dilemma here, especially when it comes to icons:

    If the icon is not of a character that I clearly own from a picture that was clearly done for me:

    1) How can you possibly know the origin of it? You did, after all, remove some for icon violations that were personally created.
    2) Even if you did know the origin of it, if you did not receive a complaint from the copyright holder, how can you possibly know that I did NOT receive permission to use it?
    3) Have you ever received a complaint from someone that only the ICON was in violation? That is to say, from the copyright holder?
    4) Even if you gave me a list of places I could take icons from, because they were in the public domain, why should I be limited only to those they decide to list, as if they are the only ones that are in the public domain?

    It just seems to me there is a lot of 'guilty until proven innocent' going on.

    Frankly, my feeling is that you shouldn't do anything until you get a complaint from the copyright holder. That is, after all, the reason for the policies that are in place, right? And when you do get a complaint, you inform the person who is complained about the name of the person doing the complaining. You say that it was brought to your attention that my stuff was in violation. I never found out who that someone was. I don't even know what they were complaining about. My stuff in general? That sounds like someone out to get me, frankly, rather than someone who had a specific beef about a specific entry that they owned the copyright of.

  9.   Click here to go to the next staff post in this thread.   #9
    Retired Staff Tiger's Avatar
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    (I'm typing this on my phone, so I apologize if the formatting is horrible)

    1) We almost always look for sources before we remove anything. If a picture is reported as having stolen content in some form, we look for a source before we take action. If we find a source and it is free to use, we give the user 72 hours to cite the image. If they do, the image stays up with no questions asked. If they do not, it is removed. If we find a source and it is not free to use, we remove the stolen content immediately. If we cannot find a source, we close the report as "No action taken" and tell the user who reported it that there is no evidence of it being stolen. The only time we would remove an image without looking for a source is if we have already found multiple sources for multiple images in the gallery, and it's obvious that other pictures in the gallery use content that was not made by the user. This is only in the cases of really huge galleries with a lot of violations. If it's a small gallery with a handful of violations, we look for every source.

    2) We look at the website(s) the content is from. If the image appears on one website, and the website is for private use, then we assume that you do not have permission and we remove it. If the image is from a stock website or a page that says it is free for use, we ask the user to cite it within 72 hours or it gets removed. In some cases, we will contact the original content owner and ask them ourselves if the Weasyl user has permission to use their work. In any case, if we were wrong in removing something (and we do make mistakes, we are human), then the user whose work was removed is free to email support@weasyl.com with an appeal and our higher level staff will review the case and, if the decision to remove the work is deemed an error, we will restore the submissions we wrongfully removed.

    3) For the first part- yes, we receive several reports monthly that people are using uncredited images as cover art or thumbnails. For the second part- I personally cannot think of a time a copyright holder has contacted us about cover art or thumbnails, but it's possible that that has been on before I was on staff or while I've been away. However it is not uncommon to receive reports from artists to tell us that a user is posting their work and they want it removed.

    4) I'm sorry if my suggestion of the two websites came across as if those are the only two websites we allow. We allow many sources, we just request that they come from websites that allow for free use of their content or that you have permission from the content owner to use it, and that it is properly cited. We just suggested those two public domain websites because they offer a large amount of images that are free to use. We by no means intend to limit users to only those two websites.


    As I said before, we certainly could take the approach that we will only remove content of the copyright holder contacts us. But in that case, a lot of people would get away with stealing content because the copyright owner doesn't do thorough searches of art websites every week or month to find out if people are stealing their work. Our staff take the approach that if either a user reports a work with evidence it is stolen, or staff finds evidence it is stolen, then it is fair game to request citation or remove it under our Community Guidelines. I admit, this is not a foolproof system. Staff has been wrong in the past, and we will probably make mistakes in the future. But if the gallery owner contacts us directly with evidence that we made an error, we are very open to listening to them and restoring anything that was wrongly removed.

  10.   Click here to go to the next staff post in this thread.   #10
    Retired Staff Frank LeRenard's Avatar
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    Quote Originally Posted by Dipper View Post
    I should also add that I have received the following note from a very reliable source, one who has actually taught copyright law:

    "What Weasyl fails to realize, this preemptive removal puts them in the position of copyright enforcer. By becoming a copyright enforcer, they surrender their safe harbor position under the Digital Millenium Copyright Act (DMCA.) That means they are now the ones that can be sued immediately if any copyright material is found on the site. Under safe harbor, the standing position is they didn't know the material was copyrighted until alerted by the copyright holder or their representative by the filing of a DMCA notice. They then have a period of time to remove the material and can't be sued if they comply with the notice. But by taking the initiative like this, they're no longer covered by safe harbor. No intelligent operator of a user-posted site would operate under that provision because they can't possibly cover 100% of all copyrighted material posted to the site. "

    So, by doing what they have done, they are not protecting the site, they are jeopardizing it.
    Sorry to butt in, but I'm very interested to follow up on this aspect of this discussion, right here.

    Fact is, investigating claims of tracing or plagiarism is one of the most time-consuming aspects of moderation on Weasyl, because (as Tiger mentioned above) we take the time to seek out the original works in order to verify the claims. Closing one such ticket can take upwards of a few hours, and I think Weasyl staff are slowly becoming leading experts in the use of reverse image search engines.

    But because it is such a time sink, we're always looking for ways to reduce the workload or streamline the process. It's difficult to do if we're intent on remaining honest. So I became rather interested upon reading the quoted material, there. If our policies are in fact considered preemptive, and if that is in fact harmful to the site by 'surrendering our safe harbor', we'd want to adjust our policies immediately. And in so doing, the standard for a valid tracing/plagiarism report would appear to be significantly reduced, meaning our workload would be reduced accordingly. It would beneficial to both us as staff and to the users.

    So would you mind asking your source to get in contact with one of us? Or even just to point us in the proper direction to verify this for ourselves?

    Thanks so much!

 

 

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