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Copyright Troll Righthaven Ordered To Pay $119,000

timothy posted more than 2 years ago | from the why-don't-they-make-it-out-to-me? dept.

The Almighty Buck 75

Hugh Pickens writes writes "Steve Green reports that newspaper copyright infringement lawsuit filer Righthaven of Las Vegas has been hit with an order to pay $119,488 in attorney's fees and costs in its failed lawsuit against former federal prosecutor Thomas DiBiase, who was sued over allegations he posted a story without authorization on a murder case by the Las Vegas Review-Journal. US District Judge Roger Hunt dismissed Righthaven's suit against DiBiase this summer because Righthaven lacked standing to sue him under its flawed lawsuit contract with R-J owner Stephens Media. The DiBiase case was noteworthy because his attorneys at the EFF said DiBiase's nonprofit website, 'No Body Murder Cases,' performed a public service by assisting law enforcement officials in bringing justice to crime victims — and that his post was protected by the fair use concept of copyright law. Case law created by the Righthaven lawsuits suggests DiBiase's use of the story would be protected by fair use as it was noncommercial and judges have found there can be no market harm to Righthaven for such uses since there is no market for copyrights Righthaven obtains for lawsuit purposes. Although this was by far the largest fee award against Righthaven, it will likely will be dwarfed by an upcoming award in Righthaven's failed suit against the Democratic Underground."

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75 comments

What! A story that doesn't mention "disruptive"! (-1)

Anonymous Coward | more than 2 years ago | (#37861936)

HOLY FUCK! This is like the first story I've seen all day here that hasn't been going on about "disruptive" innovation or some other buzzword bullshit like that.

Re:What! A story that doesn't mention "disruptive" (-1)

Anonymous Coward | more than 2 years ago | (#37862012)

HOLY FUCK! This is like the first story I've seen all day here that hasn't been going on about "disruptive" innovation or some other buzzword bullshit like that.

someone threw a bucket of fried chicken and a basketball at the niggers who keep writing those stories. they'll be busy for a little while.

Re:What! A story that doesn't mention "disruptive" (1)

Arancaytar (966377) | more than 2 years ago | (#37862020)

And it would have fit, too. Righthaven has been disrupted to bloody bits.

Mixed news (3, Interesting)

Myopic (18616) | more than 2 years ago | (#37862028)

This is great! I'm happy to have this decision, but I wish the ruling were on the merits instead of being dismissed for lack of standing.

Re:Mixed news (3, Insightful)

Frosty Piss (770223) | more than 2 years ago | (#37862048)

but I wish the ruling were on the merits instead of being dismissed for lack of standing.

In this case, those *are* the merits.

Re:Mixed news (1)

LrdDimwit (1133419) | more than 2 years ago | (#37873510)

Standing is a very important issue. You need to have some kind of rules governing who's allowed to sue over what sorts of incidents. Basically, there should only ever be at most a single lawsuit covering any given topic. If there are ever two lawsuits in different courts over the exact same issue, and they issue conflicting rulings, what happens? The answer is "that must not ever happen".

Even small kids are good at causing trouble when this rule isn't in place - "well, Dad said no ... so I'm gonna go ask Mom".

In this case, Righthaven didn't actually control the copyrights; all they had was a 'right to sue'. So if that gives Righthaven standing, and the original copyright holder still has standing (because they still have these rights) ... then both companies could sue someone, over the same incident, in different courtrooms. And you are not allowed to do that.

Re:Mixed news (0)

Anonymous Coward | more than 2 years ago | (#37874968)

Patent trolls? Sounds like infomercial liars. They all get their own in the end.

Donald Lapre; an infomercial pitchman who was facing charges of running a scam to sell worthless businesses, has died in an apparent suicide

http://www.tvguide.com/News/Infomercial-Pitchman-Suicide-1038365.aspx

Trolls should die too.

Re:Mixed news (5, Insightful)

ZombieBraintrust (1685608) | more than 2 years ago | (#37862156)

No it is better this way. It is a ruling against the business model of being a troll. If argued on the merits this guy could of lost. It sounds like he cut and pasted a story onto his blog. Not the best way to run a blog. Kinda of sloppy when it just takes a few minutes to write up your own opinion with a few quotes from the original. Cut and Pasters don't deserve big lawsuits against them. But they are not perfectly innocent either.

"I already have a no." (1)

Anonymous Coward | more than 2 years ago | (#37864004)

This is what a friend of mine learned from his family.

When you're going to ask for something, the "no" answer is granted. You only run the risk of getting a "yes", which is a positive thing. It follows that, in the general case, it never pays off being pessimistic (actually, "asking for" has other consequences which might be undesirable, but let's ignore that for the sake of the argument).

So, should a troll be quiet or menacing? Launch a suit or what?

Naturally, these parasites will never see the color of the money unless they jump onto someone's back and start to make noises.

Now, there's trolling and there's TROLLING. One thing is trying the threatening letter cheap approach. Another entirely different can of worms is coming up with a legal, expensive team of lawyers and try to force a small company to license "voluntarily" a bunch of purportedly existent patents -- because it's the best path for all...

I wish there was legal protection not just from physical threats, but also from economic threats. Here where I live we have the same problem. Being rich trumps being right. The DOJ should make sure this could never happen; I don't know how, but John Doe should have an equal chance at court as any conglomerate has. We know it ain't so, the conglomerate often "settles" the question throwing some crumbs to JD or even by agreeing on not retaliating.

Of course, if this trolling "modus operandi" could be condemned de per se and those who collected money with such schemes forced to return the money to the victims while also being exposed as the lowly characters they are -- and then being penalized with some devaluation of stocks (or reduction in liquidity)... that would be great!

But while we talk, next week another company will fall victim to "serial licensing trolls". And the DOJ will do nothing, I'm sure.

DISCLAIMER: Where I live (another country, not the US) we have much the same situation. I'm not really entitled to speak about the US environment and used "DOJ" to better illustrate the US situation with the remedies I propose. It's better that some US citizen think about all this and come up with a locally developed solution.

Re:Mixed news (0)

Anonymous Coward | more than 2 years ago | (#37864956)

It's "could have lost".

Please don't mar otherwise thoughtful posts with something that sets off people's "semi-literate therefore idiot" alarms.

Re:Mixed news (2)

hairyfeet (841228) | more than 2 years ago | (#37865898)

Sorry but even if he copypasta'd the whole thing it would have still be covered under fair use since it was a non profit public service. Sorry i can't remember the case ATM but I believe it was in Oregon that the precedent was set that even copying a whole article was considered fair use if it was for a non commercial public service. In that case IIRC the article was over an issue that they were organizing against and the judge ruled they were simply gathering data to a single point so they could better advocate their position, and in this case it is a prosecutor that is gathering as much as he can about 'no body' murder cases into a single area to help other prosecutors know how to deal with such a rare type of case.

So I'm with the other poster that it would have been nice if there had been more precedent added in this case but at least there IS precedent for doing a large copypasta of even whole articles if the purpose is to inform and not for profit. funnily enough if my memory serves it was the Righthaven trolls that caused the precedent to be set in Oregon in the first place. Maybe we should have a "Righthaven Effect" for those that end up being better advocates for the other side than they are their own?

Re:Mixed news (0)

Anonymous Coward | more than 2 years ago | (#37866168)

Sorry but even if he copypasta'd the whole thing it would have still be covered under fair use since it was a non profit public service.

So in your world non-profit public service outfits are exempt from copyright law?

Re:Mixed news (1)

Serpents (1831432) | more than 2 years ago | (#37866668)

Not exempt, but in their case the fair use clause is more permitting exactly because they're non-profit. At least that's how it is some parts of Europe

Re:Mixed news (1)

hairyfeet (841228) | more than 2 years ago | (#37874852)

It wasn't just the non profit part though, it was also that it was considered a public service. As I said in the former case it was advocating a change in the laws and therefor was a grass roots advocacy group, and in this case it is a former prosecutor gathering data on a very rare form of murder case to help prosecutors deal with such a rare occurrence.

in BOTH cases you are using the data to serve the greater public good and IIRC according to the judge in the Oregon case fair use is MUCH more lenient when it is being used as a public service.

Re:Mixed news (0)

Anonymous Coward | more than 2 years ago | (#37862526)

I wish the case was ended by someone snagging up one of their lawyers and putting a bullet through his head, on video, with a proclamation as to why this must happen. Martyrdom is underrated, though it would be even better if the 'someone' got away with it so as to do it again.

it's not what you know... (4, Insightful)

Hazel Bergeron (2015538) | more than 2 years ago | (#37862128)

lawsuit against former federal prosecutor

That was their first mistake.

Re:it's not what you know... (1)

Archangel Michael (180766) | more than 2 years ago | (#37862290)

No it wasn't. Their first mistake was ... being a troll. They weren't born that way.

Re:it's not what you know... (1)

Opportunist (166417) | more than 2 years ago | (#37862558)

Their first mistake was to think that it's enough to found a patent troll company and think that it's the get rich quick scheme of the new millenium. You still have to know what you're doing.

But it's nice to see the troll getting slaughtered for a change. Sadly, if D&D taught me anything, they regenerate fairly quickly. Gotta burn them to ashes for them to be gone.

Re:it's not what you know... (2)

YttriumOxide (837412) | more than 2 years ago | (#37868918)

Sadly, if D&D taught me anything, they regenerate fairly quickly. Gotta burn them to ashes for them to be gone.

Funny that, since NetHack taught me it's easiest to just eat their corpses (or feed them to my pets)... as an added bonus, it'd scare the bejeezus out of their fellow trolls as well.

Re:it's not what you know... (1)

million_monkeys (2480792) | more than 2 years ago | (#37864646)

Yeah seriously, what were they thinking? They obviously don't understand their own business model.
When you are making legal threats of questionable validity, you pick people who will cave to your threats and just pay up, you don't target an accomplished trial lawyer.

Did anyone at Righthaven even bother google this guy before they sued him? You don't even have to click any of links as Google is kind enough to give the following summary of the number one search result for Thomas DiBiase:

In other news, assistant U.S. attorney Thomas “Tad” DiBiase has stepped down. Readers will recall that DiBiase is “the ‘Kevin Bacon’ of high-powered D.C. legal...

That one and a half sentence summary ought to be enough to raise multiple red flags to anyone considering pulling some legal bullying on this guy.

Re:it's not what you know... (1)

surgen (1145449) | more than 2 years ago | (#37869462)

In other news, assistant U.S. attorney Thomas “Tad” DiBiase has stepped down. Readers will recall that DiBiase is “the ‘Kevin Bacon’ of high-powered D.C. legal...

That one and a half sentence summary ought to be enough to raise multiple red flags to anyone considering pulling some legal bullying on this guy.

Maybe Righthaven just wanted a lower DiBiase number?

Small caveat (1)

Dunbal (464142) | more than 2 years ago | (#37862202)

Except, since Righthaven is just a copyright troll and doesn't actually have any assets to speak of - good luck collecting...

unauthorized practice of law (4, Interesting)

ZombieBraintrust (1685608) | more than 2 years ago | (#37862394)

They are aiming at collecting from the newspapers. Defendents are filing motions that Righthaven was involved in the unauthorized practice of law. Basically the argument is that Righthaven is really a lawfirm representing newspapers in copyright cases on a contingency fee. That the contracts were an illegal attempt to shield the newspapers from liability. This ruling support that argument.

Re:unauthorized practice of law (1)

SharpFang (651121) | more than 2 years ago | (#37862542)

I don't think you can have it both ways: either Righthaven had no revenue that could be damaged by the publication (and there's nothing to be collected), or it served as a service for the newspapers and if their revenue is to be drained through fee collection, and that's the revenue that could be damaged.

Re:unauthorized practice of law (2)

ZombieBraintrust (1685608) | more than 2 years ago | (#37862712)

I am not sure what you are arguing. I am stating

A) Rightshaven had no right to bring lawsuits against infringers because their contracts with newspapers were illegal.

B) Because the lawsuits were illegal the defendant is owed attorney fees from the plaintiff.

C) The actual plaintiff in these cases is not Righthaven but the newspapers that hired them.

D) So the defendants will collect attorney fees from the newspapers.

Re:unauthorized practice of law (1)

ejasons (205408) | more than 2 years ago | (#37863110)

C) The actual plaintiff in these cases is not Righthaven but the newspapers that hired them.

I think that the parent is suggesting that, if this is decided to be the case, then the lawsuit did have merit, as the plaintiffs owned the copyright.

Conversely, since the judge decided that the plaintiffs didn't have standing, then the plaintiffs cannot be the copyright owners.

A bit of a catch-22 situation there...

Re:unauthorized practice of law (2)

gstrickler (920733) | more than 2 years ago | (#37863762)

IANAL, but it's a bit less clear than that. The newspapers contracted with Righthaven to pursue infringement cases on their behalf. However, the newspapers never transferred the copyrights to Righthaven, therefore, Righthaven had no standing AS the plaintiff. However, as a law firm, Righthaven did have the right to file the suits under the direction of or as an agent of the newspapers using the newspaper (copyright holder) as the plaintiff. The contract between Righthaven and the newspapers *could* be construed as direction from the newspaper, or that Righthaven was acting as an agent of the newspaper. If they were acting as an agent of or at the direction of the newspaper, and filed a defective lawsuit which was thrown out for lack of standing, then it *could* be determined that the newspaper is jointly responsible for the legal fees and/or penalties assessed against Righthaven. Whether or not it will go that way is TBD.

Re:unauthorized practice of law (1)

SharpFang (651121) | more than 2 years ago | (#37863148)

Actually, these contracts weren't illegal, just insufficient for the intended purpose.
If Righthaven purchased whole copyright to the article, fair and square, including revenue from licensing/publication, they would have a pretty firm standing (still, they would probably lose on fair use grounds, but not nearly THAT easily).

  But they skimped on money and purchased only right to sue for damages of revenue. Which is legal but retarded since if you don't own any rights outside the right to sue:
  - no direct source of revenue to protect (licensing) (proportional damages on perceived revenue loss)
  - no tangible value of intellectual property (reselling the IP) (proportional damages for market value of the work)
  - no personal intelectual property to manage/limit (statutory damages for copyright violation on non-commercial work).
Any of these rights - right to revenue from licensing, right to pass on the IP, or just private ownership of IP even without market value would mean they have anything to say and the plaintiff must prove fair use to escape the verdict (which would still lead to "innocent, but each side pays their own lawyers").

But these guys obtained only right to sue for violation of any of rights from which they possessed none. Which wasn't illegal, just completely useless.

Law doesn't forbid you from doing stupid things. You can purchase specific licensing rights separately and compose them as you see fit, then protect them with lawsuits. But if you purchase rights to sue for violation of rights which you don't possess... you have the right to sue, and guarantee of loss.

Nope, the lawsuits weren't illegal, they were just frivolous and outrageously stupid. It's as if I sued you for stealing my Eiffel Tower. The court established I never owned the Eiffel Tower, so why should you ever pay?

Re:unauthorized practice of law (1)

ZombieBraintrust (1685608) | more than 2 years ago | (#37863932)

I think that depends on motive. If the motive was stupidity then it was legal. If the motive was hide who the plaintiff was then they possibly defrauded the defendant or perjured themselves in court.

Re:unauthorized practice of law (1)

gstrickler (920733) | more than 2 years ago | (#37875924)

... the plaintiff must prove fair use to escape the verdict (which would still lead to "innocent, but each side pays their own lawyers").

Not necessarily so. In Lenz v Universal Music [wikipedia.org], the judge ruled that the copyright holder must consider fair use before issuing a takedown notice, which would imply they must do so before filing suit. Because UM didn't do that, Lenz' countersuit for misrepresentation of copyright was allowed to proceed. The logical extension of that is that if the copyright holder either fails to consider fair use, or considers it and incorrectly files suit when it's a clear example of fair use (e.g. they didn't use any due diligence in considering fair use), they may be subject to a countersuit for misrepresentation. If they consider fair use, and it's with not fair use, or it's unclear that it's fair use, then they would have an affirmative defense against a countersuit for misrepresentation.

Re:Small caveat (1)

gstrickler (920733) | more than 2 years ago | (#37863800)

Pierce the corporate/LLC veil (they engaged in illegal activity) and go after the principals personal assets.

Punative damages (1)

Citizen of Earth (569446) | more than 2 years ago | (#37862282)

More than repaying costs of defence, the plaintiffs of frivolous lawsuits need to be made to pay punitive damages of 3 to 10 times the costs. This will help these kinds of cases to go away.

Re:Punative damages (1)

PRMan (959735) | more than 2 years ago | (#37862326)

Except that it won't. They are trying to declare bankruptcy to avoid paying anything to anyone.

Re:Punative damages (2)

ZombieBraintrust (1685608) | more than 2 years ago | (#37862468)

Some are trying to convince a judge that Righthaven is really a lawfirm for the newspaper instead of the actual plaintiff. If they can do that it doesn't matter if Righthaven goes bankrupt. They can collect from the newspaper. Another tactic is to seize the copyrights as an asset.

Re:Punative damages (1)

Fluffeh (1273756) | more than 2 years ago | (#37862546)

Yeah, but I am pretty sure that one of the judges actually declared their "parent" companies as liable as the only business that RH was doing was on their behalf. He stated that the RH business was an extension of the media companies as as such, they were liable for damages and bills that RH incurred. Simply declaring RH bankrupt won't be enough to stop the media companies forking out what is owed. It will make it a little harder, but not impossible.

Re:Punative damages (1)

Overzeetop (214511) | more than 2 years ago | (#37863978)

Seems like there should be a way to claim gross negligence and professional misconduct on the part of the partners of Righthaven, and use that as a basis for personal/professional liability against them as well as their corporation/partnership. It works that way for other professionals, I suspect it's possible (depending on state law, of course) with lawyers, too. Of course, they should also have their licenses revoked, but that's a different story.

Re:Punative damages (2)

jd (1658) | more than 2 years ago | (#37862354)

Only if they have money.

There are ways to circumvent that, of course - abolish the concept of a corporation as a person, treat all copyrights owned by them as assets that can be seized, and if the sum value so seized is less than the money owed, seize assets of management (within bounds, an individual should never be sued beyond the ability to function as an individual) including the business license for the corporation. If it's still less, ban all members of management from holding management positions or being able to obtain a license to run a business for X number of years.

Re:Punative damages (2)

TFAFalcon (1839122) | more than 2 years ago | (#37862658)

The problem is that you don't know which management to sue. The one that started the suit? The one that was in power in the middle, or the one that was in command when the suit was thrown out?

The better way to handle this would be to eliminate the limited liability of a corporation. Make the stockholders liable for any debts not covered by the bankruptcy sell-off, but at the same time make the management liable for any liabilities not disclosed in a quarterly report.

Doing this would fix so many things. The management would suddenly have a big incentive to tell the truth to their stockholders, while the stock traders would have to look at more then just the stock price history.

Re:Punative damages (1)

Bucky24 (1943328) | more than 2 years ago | (#37863034)

The better way to handle this would be to eliminate the limited liability of a corporation.

This idea has been discussed before. Sure, it would punish those making the choices (the shareholders), but then again, it would publish the shareholders. Do you have an IRA? Or invest in a mutual fund? A lot of people do, and removing limited liability could cause a lot of them to lose their life savings in some stupid copyright lawsuit that they likely don't even know about (especially if someone else is managing their investments).

make the management liable for any liabilities not disclosed in a quarterly report.

I agree that this is an excellent idea.

Re:Punative damages (0)

Anonymous Coward | more than 2 years ago | (#37874906)

The better way to handle this would be to eliminate the limited liability of a corporation.

This idea has been discussed before. Sure, it would punish those making the choices (the shareholders), but then again, it would publish the shareholders. Do you have an IRA? Or invest in a mutual fund? A lot of people do, and removing limited liability could cause a lot of them to lose their life savings in some stupid copyright lawsuit that they likely don't even know about (especially if someone else is managing their investments).

make the management liable for any liabilities not disclosed in a quarterly report.

I agree that this is an excellent idea.

If you don't make the stockholders liable for stuff disclosed in the report, it all gets disclosed, but the people frivolously sued still get burned for the legal fees. And, if the stockholders are the management, well, so it is in a report.

If someone does not tell you they are getting money by threatening people in your name, you may not owe the people threatened. If the extortionists do tell you, and you don't stop them, that is different.

On the downside, this would cause some problems. No one will buy into a company without carefully examining the reports, so liquidity will be reduced. And, what do you do if the company does something wrong and then discloses? How do you handle the people who purchased stock before disclosure - are they responsible. Are the executives held blameless for activities performed before disclosure?

Limited liability is the triumph of practicality over morality. If we make people less responsible for their actions, they will build the economy faster (in theory). But we are left saying, "Yes, we let these people get away with taking advantage of you, for the greater good."

Re:Punative damages (2)

jd2112 (1535857) | more than 2 years ago | (#37863306)

Only if they have money.

There are ways to circumvent that, of course - abolish the concept of a corporation as a person,

If a corporation is a person, wouldn't dissolving a corporation be murder?

the? (0)

ronabop (520121) | more than 2 years ago | (#37862308)

"the" Democratic Underground? No, it's just Democratic Underground, or DU.

Re:the? (3, Funny)

Anonymous Psychopath (18031) | more than 2 years ago | (#37862432)

"the" Democratic Underground? No, it's just Democratic Underground, or DU.

-1 Overly Pedantic. Even for Slashdot.

Re:the? (0)

Anonymous Coward | more than 2 years ago | (#37863720)

Right, so you'd be fine with "Righthaven's failed suit against the Microsoft", etc. Right...

Re:the? (1)

oodaloop (1229816) | more than 2 years ago | (#37863874)

What about nouns with 'The' already in them?

"Did you see the Terminator movie?"
"Did you see the The Birds movie?"

That kind of shit just burns me up. I would be happy to share my latest manifesto on the subject.

Re:the? (0)

Anonymous Coward | more than 2 years ago | (#37864652)

What about nouns with 'The' already in them? "Did you see the Terminator movie?"

This is OK because the "the" applies to "movie" and "Terminator" is just modifying "movie".

"Did you see the The Birds movie?"

Correct, but awkward. "Did you see 'The Birds'?" would be preferred here.

That kind of shit just burns me up.

You should see a doctor about that.

I would be happy to share my latest manifesto on the subject.

*Thomas* DiBiase? (1)

Anonymous Coward | more than 2 years ago | (#37862452)

It's *Thomas* DiBiase running that website? Oh sorry, we thought it was "Million Dollar Man" Ted DiBiase [wikipedia.org] running it. Sorry. - Righthaven.

Oh no, we don't target the big guys, we were right all along because we DO only target little guys. Remember that Ars Technica [arstechnica.com] "clerical error"? Sorry. - Righthaven.

Re:*Thomas* DiBiase? (0)

Anonymous Coward | more than 2 years ago | (#37862886)

i saw his last name and was like OMG THE MILLION DOLLAR MAN, then i was like shit im getting old, then i was like wow im a loser :D

DMFUA (1)

Anonymous Coward | more than 2 years ago | (#37862572)

Perhaps it is time for a Digital Millennium Fair Use Act (DMFUA)?

Seriously, what's Righthaven's mission? (1)

Opportunist (166417) | more than 2 years ago | (#37862590)

I mean, let's be honest here. Even the worst patent troll is prone to hit a target that doesn't defend but rather settle, at least from time to time. Only thing about RH we get to hear is being shot down time and again. What are they actually trying to achieve?

Well if it's "don't fear the troll, fight him and you shall receive"... Mission accomplished!

Re:Seriously, what's Righthaven's mission? (1)

517714 (762276) | more than 2 years ago | (#37865678)

One point that comes to mind is that accountants are worse (more evil) than lawyers. An accountant will calculate the cost of losing times the chances of losing and choose to settle when that product is less than the offered settlement. A lawyer will not feed a troll who isn't his client.

You've got to pay the troll toll. (0)

Anonymous Coward | more than 2 years ago | (#37862702)

Newspaper copyrights are often as contested as a boy's soul. But at some point, you've got to pay if you want to keep playing. You've got to pay to get in.

Slap 'em Down!! (0)

Anonymous Coward | more than 2 years ago | (#37863344)

"Slapping down the trolls,
slapping down the trolls!
We will go rejoicing,
Slapping down the trolls!"

It's a start, but needs to become more painful... (1)

rts008 (812749) | more than 2 years ago | (#37865956)

I think this is good, but they are getting off too cheap.
The 'payback' on IP trolls should be painful, bloody, and AT LEAST crippling, at the minimum.
But it's a start....

The real fun starts when... (1)

Trailer Trash (60756) | more than 2 years ago | (#37869178)

The real fun starts when one of these counter-plaintiffs puts in a motion to pierce the veil, and it's coming.

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