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[Cory2017_800x400-800x400]
Commentary Cory Doctorow Features
Cory Doctorow: IP
September 7, 2020October 19, 2020 locusmag 0 Comments Commentary,
Cory Doctorow
Cory DoctorowPhoto by Paula Mariel Salischiker
You've probably heard of "open source software." If you pay
attention to the politics of this stuff, you might have heard of
"free software" and even know a little about the ethical debate
underpinning the war of words between these two labels. I've been
involved since the last century, but even I never really understood
what's going on in the background until recently.
I was looking up the history of the first free software license, and
I had a revelation that transformed the way I think about it, which
is significant, since, to a first approximation, this stuff is all I
think about.
Some background: "free software" had its origins with AI
researcher-turned-activist Richard Stallman who started his GNU
project in 1983, leading to the creation of the first "GNU General
Public License" (GPL). This is a copyright license for computer
programmers who want to share their work. If you release a program's
underlying source code under the GPL, anyone else is free to:
* Run your program
* Study your code
* Improve your code
* Share their improved code with others (provided that the same
license is applied to that new code).
The GPL - a copyright license for software - arrived just as
copyright for software itself arrived. Prior to 1983, software was
generally viewed as a "functional work" and thus ineligible for
copyright, but 1983's Apple v. Franklin suit, combined with some 1980
amendments to the Copyright Act, established that software could be
copyrighted.
By choosing to apply the GPL to their copyrighted code, programmers
could "lock it open" and ensure not only that others could build on
it, but that no one could take their work and close it off again.
Today, the act of licensing your code as "free software" is
considered a mark of forbearance, a software author's promise not to
seek legal sanctions against those who create new programs that read
and write their data, nor against those who "fork off" competing
versions of their program.
To make your software "free" is to promise that its users will have
freedom - as the saying goes, code is "free as in speech" even if
it's not necessarily "free as in beer."
In 1998, free software underwent a reinvention, as a more
business-oriented group of technical people and entrepreneurs decided
that "free software" was alienating to the commercial sector, both
because it stressed freedom and because it implied that the code
would be free-of-charge and thus not directly commercializable.
Those people coined the term "open source," to stress the
instrumental benefits of allowing others to scrutinize code: these
scrutineers could root out defects and prevent the nefarious
subversion of code to spy on or steal data from its users (there's a
saying for this, too: "with enough eyeballs, all bugs are shallow").
But let's go back to 1983 and the birth of free software. When free
software was born:
* software copyright was new and not widespread; it was not clear
which activities were prohibited;
* software patents were almost unheard of and very hard to secure;
* terms of service ("shrinkwrap licenses" and other contracts of
adhesion that you "agreed" to simply by running code, opening a box,
or taking some other mundane, unsuspecting step) were not considered
enforceable;
* there was no law against bypassing copy-controls or DRM;
* exotic "para-copyrights" - like the one that Oracle is currently
trying to establish by suing Google over using an API - certainly
didn't exist.
In other words, when free software was born, if you wanted to clone,
interoperate with, improve, or modify any existing software, all you
needed to do was reverse-engineer that software and go to town.
The GPL wasn't permission to make something new that was compatible
with something that already existed. People who knew how to make
software already behaved as though that was something they were
permitted to do, irrespective of the feelings of the company or
individual whose code they were interacting with.
The GPL was a request for companies and software authors to make this
process easier and less tedious by handing out source code, so that
would-be interoperators could skip the wasteful, time-consuming
reverse-engineering step and go right to the good stuff - making a
new thing that improved upon (and/or competed with) whatever was
already made.
The GPL was icing on the cake. Applying the GPL to your code didn't
signal that you'd forswear legal vengeance upon those who wanted to
make something compatible with your thing. You had no right to that
vengeance! Applying the GPL to your code signalled that you wanted to
collaborate with interoperators, rather than impotently shake your
fist at them from the sidelines as they went right ahead and
interoperated with your code against your wishes.
Some 40 years later, the world is a very different place. Between
software copyrights, anti-circumvention rules, software patents,
enforceable terms of service, trade secrecy, non-compete agreements,
and the pending (at the time of this writing) Oracle/Google dispute
over API copyrights, any attempt to interoperate with an existing
product service without permission from its corporate master is a
legal suicide mission, an invitation to almost unlimited civil - and
even criminal! - litigation. That is to say: if you dare to modify,
improve, or replace an existing, dominant software-based product or
service, you risk bankruptcy and a long prison sentence.
Forty years ago, we had cake and asked for icing on top of it. Today,
all we have left is the icing, and we've forgotten that the cake was
ever there. If code isn't licensed as "free," you'd best leave it
alone.
What is "interoperability," anyway?
The term is nerdy, technical, obscure. It's closely related to the
slightly more familiar "compatability," but the two aren't quite
equivalent.
In a technical sense, "interoperability" describes two products or
services that can somehow work together with one another. From
opening your Word documents in Google Docs, to using third-party ink
cartridges in your printer to replacing your watch band, to changing
the stereo that came with your car, interoperability is a broad,
universal, essential characteristic of all of our technology.
Interoperability is the default state of the world. Anyone's charcoal
will burn in your barbecue, just as anyone's gas will make your car
go. Any manufacturer can make a lightbulb that fits in your
light-socket and any shoes can be worn with any socks.
Some of this is down to standardization: manufacturers, academics,
regulators, and interested parties gather in "standards development
organizations" to make this process simpler, describing the canonical
direction and spacing of a lightbulb-thread, or the syntax of an HTTP
request, or the fittings on the underside of your toilet.
This certainly makes interoperability smoother! Standards for paper,
from weight ("grams per square meter"/GSM) to size (letter/legal/
tabloid; A1, A2, A3, A4, etc.) make it possible for you to reliably
buy paper that will work with your printer, without requiring
additional trimming or other modifications.
A failure to standardize can make life hard for everyone. Early
Australian rail barons laid their tracks in several gauges, leading
to the "multi-gauge muddle" of a rail system where some cars and
engines could not run on some of the tracks.
These barriers to interoperability aren't insurmountable. If your
paper doesn't fit your envelope, you can fold it; if it doesn't fit
your printer, you can trim it. If the rail gauge doesn't match your
rolling stock, you can modify the undercarriages to allow for
multi-gauge operation (a difficult operation to be sure, never
implemented despite hundreds of proposals) or you can tear up some of
the track and lay new ones (as Australia has done and promises to do
more of).
Interoperability lowers "switching costs" - the cost of leaving
behind whatever you're using now in favor of something you think will
suit you better. When my grandparents emigrated to Canada from the
Soviet Union on a displaced persons ship, they incurred a high
switching cost: for more than a decade, they had no contact with
their family in Leningrad except through unreliable, slow
word-of-mouth with the rare person who got a visa to travel there.
Contrast this with my move from the UK to Los Angeles in 2015: we are
in routine contact with my in-laws in London and Wales, as well as my
family in Toronto. My laptop and books came with me, as did our other
personal effects. We left most of our appliances behind because they
ran on a different voltage, but there were a few things we loved that
we brought with and either changed the plugs on or connected to our
house's electrical outlets via transformer or adapters.
Companies like high switching costs. For a would-be monopolist, the
best product is one that's seductively easy to start using and
incredibly hard to get rid of. Think of Purdue Pharma's gleeful
internal memos - revealed in leaks and court cases - about the ease
with which their "customers" were getting started on opioids and how
hard it was for those same people to switch away.
Addiction isn't the only way to raise switching costs. Facebook makes
it incredibly easy to get started, historically going so far as to
tricking you into giving it access to your electronic contacts list
to enmesh you in a network of others who've already signed up for the
service. Once you're on Facebook, it's very easy to bring in articles
from the public web, and to link to your friends' updates on rival
networks. You can start by just using Facebook to follow the friends
you have there, but over time, the system nudges you toward using
Facebook as your primary means of reading the news and even following
what your friends are saying on non-Facebook networks.
But when you want to leave Facebook, there's no easy way to do so.
You can't go to a Facebook rival and follow what your friends post to
Facebook from there. You certainly can't reply to what your Facebook
friends post using a rival service.
Interoperability - the thing Facebook uses to slurp stuff in from the
open web - is the key to self-determination. Leaving Facebook in the
21st century is like my grandmother leaving the USSR in the 40s: you
can go, but your friends and loved ones are all held hostage behind
Zuckerberg's Iron Curtain, so leaving Facebook means leaving your
communities, your relationships. That's not as hard as kicking
opioids, but it's not easy either. And your presence on Facebook is
the reason someone else can't go.
Here's the thing: everyone wants to minimize risk, from employers to
workers, from Big Tech to its users. You want to use Google in ways
that make your life better, and you don't want Google to be able to
arbitrarily change or remove the services it provides (ask me how
bitter I am about Google nuking Reader, its RSS product!).
Google wants to ensure that you won't leave the company or its
products and services. It could improve its retention by making you
so delighted with its offerings that you never consider leaving - but
a surer, cheaper way is to interweave its products and services with
your life: making sure that your kid can't go to a public school
without creating a Google account; embedding Google search in your
mobile OS; releasing web- and app-development frameworks for third
parties that quietly harvest the data of their users and send them to
Google.
The more freedom you have to leave Google, the bigger a risk you
present to Google. The more Google can lock you in, the lower the
risk of your departure from the service - and the higher the risk
that Google will cease to keep your business by making good products,
and instead rely on retaining you because you can't leave (or because
leaving comes at a very high price).
Interoperability improves self-determination by safeguarding your
ability change the your current situation by incremental steps: if
you like your phone and the apps you have, but want an app that's
banned in its default app store, interoperability comes to the
rescue, allowing you to add a second app store to your phone's list
of approved software sources. You get to keep your phone, keep your
apps, keep all the data on your phone, and you get to install that
unauthorized app.
Without interoperability, your choice is "take it or leave it": if
the app store blocks an app you want, the price of getting that app
is throwing away your phone, all its apps, and some or all of the
data you've painstakingly input into your phone. That unauthorized
app needs to be pretty darned good before anyone would pay such a
high price for it.
Writ large, interoperability encompasses things like democracy: when
someone says they like their city but not its bylaws, we don't tell
them that the law is the law and the home comes with these bylaws in
a package. Instead, we set out processes for amending or repealing
laws that chafe the people they govern. And, if you fail in your bid
to reform your city's laws, you can move to another city without
having to surrender the possessions in your home or your social
relations with your old neighbors. Interoperability lets you replace
the laws and keep your house, or replace your house and find new
laws.
This whole line of thought started with a reflection of the history
of the free software movement: the largely forgotten time in which
the default condition of software was freedom. In the absence of
copyright, patent, anti-circumvention, terms of service, noncompetes,
confidentiality, and other commonplaces of today's software
marketplace, anyone who could figure out how to reverse-engineer a
program could improve it, replace some or all of it, read or write
its files, compete with it, or sideline it.
Today, this is no longer the case. In fact, today's software
marketplace is so unlike this previous "cake-and-icing" world - where
the default was software freedom (cake) and the free software
movement began its audacious demand for freely reusable source code
as a means of making software freedom as frictionless as possible
(icing) - that it's virtually impossible to imagine such an
environment.
The thicket of anti-interoperability rules that has sprung up around
interoperability has a catch-all name: "intellectual property."
Now, free software advocates - and free culture advocates - hate the
term "intellectual property." The argument against IP rails against
its imprecision and its rhetorical dishonesty.
Prior to the rise of the "intellectual property" as an umbrella term,
the different legal regimes it refers to were customarily referred to
by their individual names. When you were talking about patents, you
said "patents," and when you were talking about copyrights, you said
"copyrights." Bunching together copyrights and trademarks and patents
and other rules wasn't particularly useful, since these are all very
different legal regimes. On those rare instances in which all of
these laws were grouped together, the usual term for them was
"creator's monopolies" or "author's monopolies."
The anti-IP argument leans into the differences between the
underlying rationale for each of these rules:
* US copyrights exist to "promote the useful arts and sciences" (as
set out in the US Constitution); that is, to provide an incentive to
the creation of new works of art: copyright should offer enough
protection to create these incentives, but no more. Copyright does
not extend to "ideas" and only protects "expressions of ideas";
* Patents exist as incentive for inventors to reveal the workings of
their inventions; to receive a patent, you must provide the patent
office with a functional description of your invention, which is then
published. Even though others may not copy your invention during the
patent period, they can study your patent filings and use them to
figure out how to do the same thing in different ways, or how to make
an interoperable add-on to your invention;
* Trademarks exist as consumer protection: trademarks empower
manufacturers to punish rivals who misleadingly market competing
products or services that are like to cause confusion among their
customers. It's not about giving Coca-Cola the exclusive right to use
the work "Coke" - it's about deputizing Coca-Cola to punish crooks
who trick Coke drinkers into buying knockoffs. Coke's trademark
rights don't cover non-deceptive, non-confusing uses of its marks,
even if these users harm Coca-Cola, because these do not harm Coke
drinkers.
Seen in this light, "intellectual property" is an incoherent
category: when you assert that your work has "intellectual property"
protection, do you mean that you can sue rivals to protect your
customers from deception; or that the government will block rivals if
you disclose the inner workings of your machines; or that you have
been given just enough (but no more) incentive to publish your
expressions of your ideas, with the understanding that the ideas
themselves are fair game?
When you look at how "IP" is used by firms, a very precise - albeit
colloquial - meaning emerges:
"IP is any law that I can invoke that allows me to control the
conduct of my competitors, critics, and customers."
That is, in a world of uncertainty, where other people's
unpredictability can erode your profits, mire you in scandal, or even
tank your business, "IP" is a means of forcing other people to
arrange their affairs to suit your needs, even if that undermines
their own needs.
There are some ways in which this is absolutely undeniable. Take DRM,
"Digital Rights Management." These are the digital locks in our
devices that prevent us from using them in ways that the manufacturer
dislikes. Your printer uses DRM to force you to buy ink that the
manufacturer has approved; your phone uses DRM to force you to buy
apps that the manufacturer has approved. Ventilators from Medtronic
and tractors from John Deere use DRM to force you to get them
repaired by the manufacturer - and to scrap them when the
manufacturer decides it's time for you to buy a new one.
Copyright laws - that is, "IP laws" - ban tampering with DRM, making
it a serious, jailable felony to provide others with tools to bypass
DRM. From Section 1201 of the US Digital Millennium Copyright Act to
Canada's Bill C-32 to Article 6 of the EU Copyright Directive,
countries around the world have imposed indiscriminate bans on
breaking DRM.
These are all copyright laws, but, tellingly, the ban on breaking DRM
is not limited to copyright infringement. Bypassing DRM to get your
printer to accept third-party ink is not a copyright violation:
you're not reproducing its code, nor are you duplicating the traces
etched into its chips. But even though you're not breaking copyright
when you jailbreak your phone, you're still breaking copyright law.
The law bans legal conduct, if you have to break DRM to engage in it.
This isn't copyright protection - it's felony contempt of
business-model.
It's not just DRM. Take "Goldman Sans," a free font released by the
finance giant and global supervillain Goldman Sachs. Goldman Sans is
a copyrighted work, and it comes with a copyright license that you
"agree" to when you download the font. Among the license terms for
Goldman Sans is a non-disparagement clause - that is, a clause that
prohibits you from criticizing Goldman Sachs. Goldman Sachs doesn't
need copyright law to prevent people from copying its font. It gives
the font away for free. Goldman Sachs needs copyright law so it can
boss people around - so it can tell them what they may (and may not)
say.
The risks to free expression and self determination have always been
latent in copyright, patent, and trademark, and these laws have
historically been designed to minimize those risks. Each one has its
own "escape valve" that, theoretically, stops "IP owners" from using
their rights to take away your rights.
Copyright has "fair use" ("fair dealing" in most non-US
English-speaking countries), which allows for many kinds of copying,
adapting, displaying, and even selling of others' copyrighted
expressions, provided these activities promote a free and robust
discourse by transforming, commenting on, or analyzing the
copyrighted work. Fair use doesn't depend on a copyright holder's
permission - you can make fair uses even (especially!) if the
rights-holder doesn't want you to.
Patent has its own escape valve: publication. To receive a patent,
you must disclose how your invention works and those disclosures are
on display from the start, where anyone can study them and use them
as inspiration for their own inventions. Patents allow you to punish
people who duplicate your invention, but they also require that you
tell people exactly what steps they must take to effect such a
duplication, and also provides a roadmap for replicating your
invention's functions without violating your patent.
Trademark has two important escape valves: first, trademark holders
are limited to enforcing their marks against rivals who use them in
deceptive ways likely to cause public confusion; second, trademark is
subject to the "nominative defense" - it's not a violation of a
trademark to use that mark to describe the goods or services it's
associated with. You can put a sign in your shop window reading, "We
fix iPhones," or "Cheap ink for HP printers" or "Our cola tastes
better than Coke!" and there is nothing the trademark holder can do
about it.
These escape valves have been a lot less durable than we might hope.
It turns out that much of their efficacy depends on there being
robust competition in the marketplace, so that when one company tries
to narrow (say) fair use in court, other companies that depend on
fair use spring up to defend it. Through the past four decades of
massive consolidation in every industry, a consensus has emerged
among the shareholder and managerial classes that these escape valves
are defects in otherwise excellent laws, and they have set to work
creating legal precedents, new laws, and new legal tactics to jam
these valves shut.
This is how we went from having software freedom cake to just having
the icing: new copyright laws (like the ones that ban breaking DRM);
new copyright precedents (like the one Oracle is presently seeking
in its lawsuit against Google); and new tactics for combining
copyrights, patents, trademarks, DRM, trade secrets, and other IP so
that what trademark permits, copyright prohibits, and what copyright
permits, patent blocks, and so on, until all the certainty has been
moved onto the manufacturer's side of the deal, and all the risk has
been moved onto yours.
Recall that the term of art that preceded "IP" was "author's
monopolies." The tale of how the latter was replaced with the former
has many variations, but everyone agrees that its no fun to be called
a monopolist.
If you think you don't have enough copyright, it's hard to go to
Congress or Parliament and demand an expansion of your regulatory
monopoly - far more pleasant is demanding help in defending your
"property."
There is a strict sense in which copyrights and (especially) patents
are monopolies. When you write down a collection of words - this
essay, say - a new copyright is born. It gives you the exclusive
right to reproduce, adapt, display, or sell the essay. Your rivals
can compete with you by writing different essays that they hope to
sell to the same magazines to tempt the same readers with, but you
and you alone can sell the essay you wrote. In that sense, it's
obviously a monopoly - a market for a product with only one seller,
which is the purest form of monopoly there is.
But the word monopoly has a different definition in competition law:
a monopolist isn't merely someone who controls 100% of the supply of
a good or service. A monopolist is anyone who has "market power" -
that is, the power to set prices. After HP sells you the printer, it
can charge whatever it wants for ink. You could junk your printer and
buy another, but HP's rivals also charge absurd sums for ink and also
use DRM and IP to punish competitors who introduce cheap ink into the
market.
The people who bristled at having copyrights called "monopolies" had
a point: it's a rare author who has "market power." Authors - even
big name ones - have limited power to convince their publishers to
pay over the odds (there are a few superstar exceptions, but they're
as rare as meteor-strikes; overwhelmingly, copyrights do not confer
market power to creators).
However, there are actual, market-power monopolies in the
entertainment industry: the single movie-theater chain that controls
the vast majority of cinema screens (AMC, which may be bankrupt or a
part of Amazon by the time you read this); the three record labels,
four movie studios, and five publishers (maybe four by the time you
read this); the single national brick-and-mortar bookstore chain and
the single global online bookseller (which also effectively owns the
audiobook market).
How did these monopolies emerge? Well, in some ways, they came from
the same place that all the other monopolies - in energy, eyewear,
finance, automotive, aerospace, accounting, civil engineering,
logistics, etc. - came from: lax antitrust enforcement. For 40 years,
we've let companies grow by buying their small competitors before
those competitors could become threats, to merge with their major
competitors and cease competing, and to corner vertical markets so
they could squeeze labor, suppliers, and customers.
Entertainment monopolies are special, because they aggregate these
"author's monopolies" in vast quantities. These monopolies are
durable in ways that mere market power is not. If you control one
third of all the music that might be sampled by other musicians, you
have a bottleneck that can't be evaded through cunning or creativity.
Any attempt to break your monopoly is a copyright infringement, and
doing it at commercial scale is a criminal copyright infringement.
That is to say, banking and aerospace monopolies can get sued for
being anticompetitive - but entertainment monopolies can sue you for
being pro-competitive. The result is a monopoly that controls access
to distribution channels and audiences - that can invoke the power of
the state to fine or even im prison people who seek to challenge
that monopoly.
Even where tech is challenging these monopolies, it is doing so in
order to create more monopolies. Kindle Unlimited presents a real
challenge to traditional genre publishing, and every Kindle Unlimited
book is released with DRM that locks it to Amazon's platform. Any
attempt to liberate Kindle Unlimited books so they can be read with a
rival's device (or with a device designed to stop Amazon from spying
on you while you read) involves breaking the DRM, and trafficking in
tools to break DRM is a felony under Section 1201 of the Digital
Millennium Copyright Act of 1998. Kindle Unlimited books aren't
available in libraries, and giving librarians a tool to remove the
DRM to add Kindle Unlimited books to their collections is a jailable
offense.
As Amazon conquers an ever-larger proportion of genre readers, it
permanently locks those readers into its platform, meaning that any
author who wants to access those readers will have to do so on
Amazon's terms, turning over the power of their "author's monopoly"
to be used in Amazon's "market power monopoly" arsenal. Give authors
more copyright - a stronger monopoly - and Amazon will seize that
too, as a condition of reaching the audience Amazon has imprisoned in
its walled garden.
"Author's monopolies" are not "market power monopolies," but if you
can aggregate enough "author's monopolies" in one place, you can
turn it into a market power monopoly that is backed by the power of
the courts and the prisons and that accumulates more author's
monopolies every time someone enters your captive marketplace.
You may have heard Netscape founder Marc Andreessen's famous phrase:
"Software is eating the world." It's not quite true. Software has
eaten the world.
Past tense.
If there was any doubt, the pandemic erased it. Locked down, viewing
the world through our screens, there is no longer any distinction
between human rights and digital rights. There is no software
freedom. There's only freedom.
Software is expanding relentlessly into every device and system, from
ventilators to tractors, from toothbrushes to sex-toys, from
refrigerator filters to money itself. Wherever we find software, we
find "IP" - that is, software deployed to control the conduct of
competitors, critics, and customers, in such a way that overlapping
systems of laws can be invoked to punish anyone who bypasses that
software.
The combination of software and IP in every device is a sea-change
for the organization of our society. As firms have become
increasingly concentrated - as monopolies have emerged in every
sector - they have also figured out how to infuse their products with
just enough software that they can invoke IP to control their
competitors, critics, and customers. These are market power
monopolies backstopped by creators' monopolies, which create IP
rights that supercharge their market power.
All of this is just a curtain-raiser. Software isn't just a way to
put IP into otherwise inert objects. It's also a way to automate
them, to make them into unblinking, ever-vigilant enforcers for the
manufacturer/monopolist's interests. They can detect and interdict
any attempt at unauthorized interoperability, and call the
appropriate authorities to punish the offenders.
This is a level of control beyond the wildest dreams of history's
most sociopathic monopolist. Consider the coal-boss who controlled
his workers by moving them into company housing in a company town
where they were paid in company scrip that could only be spent at the
company store. This coal boss moves titanic amounts of risk off his
balance sheet and onto his workers'. Not only are they incapable of
leaving for a better job without paying their debts, but they also
are paid in non-interoperable, proprietary money that only works at
the company store, where prices can be adjusted at will to ensure
that the workers' debts are never paid.
Even that coal-boss, a God to his workers, was not all-powerful. A
coal worker could buy corn at the company store and trade it for real
US greenbacks at the local moonshiner's shed, converting
non-interoperable scrip to interoperable dollars at a loss, through
the intermediary exchange medium of corn.
Think of a worker paid in company scrip today - the digitally enabled
smart goods they buy at their company store can be locked to their
accounts the way a Kindle book or an iPhone app is locked to your
personal device. The unblinking eye of the software enforcement
system is always watching, ready to discipline you for your lack of
consideration for its shareholders' bottom line.
Once we had cake. Today we have icing. At this rate, the icing will
be gone before long.
There are no digital rights, only human rights.
There is no software freedom, only human freedom.
---------------------------------------------------------------------
Cory Doctorow is the author of Walkaway, Little Brother, and
Information Doesn't Want to Be Free (among many others); he is the
co-owner of Boing Boing, a special consultant to the Electronic
Frontier Foundation, a visiting professor of Computer Science at the
Open University and an MIT Media Lab Research Affiliate.
---------------------------------------------------------------------
All opinions expressed by commentators are solely their own and do
not reflect the opinions of Locus.
This article and more like it in the September 2020 issue of Locus.
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Issue 720 Table of Contents, January 2021
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