RootsTech 2015

Some people eat, sleep and chew gum, I do genealogy and write...

Monday, April 7, 2014

When copyright protection for genealogy becomes a really bad idea

I had a recent comment to a post that mentioned copyright law that chastised me for making a comment about journal contributors that "fiercely defended their copyrights." I assume that the commentator felt that the writers had a right to fiercely defend the copyright on their own work. I guess my question is why? Why is copyright important to genealogists? I can only guess as to the motivation, but i suggest that it might be misplaced. Perhaps, what they are really concerned about is plagiarism not necessarily copyright?

I can suggest several motives for what I consider to be a misplaced and overprotective attitude about publications. Some of the basic motives include profit, prestige, recognition and control. May I remind you that U.S. copyright law originates with the U.S. Constitution Article 1, Section 8 which states, in part, that Congress shall have Power ... "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Why was the original grant of what we now call copyright law intended to be secured for a limited time? This is an extremely important question and one that needs to be addressed in any consideration of the effect of granting copyright or any other limitation on intellectual property. At the end of this post, which will look very long, I have reproduced a list of the Statutory Enactments Contained in Title 17 of the United States Code from Circular 92 of the U.S. Copyright Office to make a point. Like much of what we have today in the tax code, immigration code and thousands upon thousands of other regulations in the Federal labyrinth, copyright law has become almost impenetrable to all but a few highly skilled professionals. The gap between what the general population understands about copyright protection and the reality is as far apart as any other of the very difficult Federal Regulations contained in the United States Code (USC).

I often make the comment to my very highly educated wife, that if we can't figure out how to do our taxes, how can anyone else? This is exactly the problem with copyright. The original intent of the law as set forth in the U.S. Constitution was lost years ago and the present operation of the law bears little or no resemblance to those original motivations.

The commentator indicated the, I as an attorney, more than others should understand the need for zealous protection of copyright. So, I ask the question again, why? Maybe, it is because I am an attorney with years and years of trial experience and actual litigation experience with copyright that I should be highly skeptical.

My basis for this is simple: you do not own your ancestors.  In addition, one of the most basic concepts of copyright is not to prevent plagiarism, but to secure to the author the financial benefits of their work. When was the last time you got paid for posting your family tree online? In this, please do not misunderstand me, I am not talking about people who publish books and other materials for profit. They are the ones who benefit, in a small way, from the copyright laws. I am talking about all the other stuff, blog posts, notes on family trees, biographies, surname books etc. that have absolutely no expectation of making a dime for their authors. What then is the benefit of copyright to these people?

If I write about my great-grandfather who has thousands of descendants, why do I care if someone copies what I write? That is the simple answer to the entire issue. You may not like my opinion, but I do have a very thought-out reason for it.

Here is the list I wrote about above. Think about it for while and you might just see what I am beginning to talk about.

Statutory Enactments Contained in Title 17 of the United States Code

  • [Copyright Act of 1976], Pub. L. No. 94-553, 90 Stat. 2541 (for the general revision of copyright law, title 17 of the United States Code, and for other purposes), October 19, 1976.
  • Legislative Branch Appropriation Act, 1978, Pub. L. No. 95-94, 91 Stat. 653, 682 (amending §203 and§708, title 17, United States Code, regarding the deposit of moneys by the Register of Copyrights in the Treasury of the United States), enacted August 5, 1977.
  • [Copyright Amendments], Pub. L. No. 95-598, 92 Stat. 2549, 2676 (amending §201(e), title 17,United States Code, to permit involuntary transfer under the Bankruptcy Law), enacted November 6, 1978.
  • [Copyright Amendments], Pub. L. No. 96-517, 94 Stat. 3015, 3028 (amending §101 and §117, title 17, United States Code, regarding computer programs), enacted December 12, 1980.
  • Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No. 97-180, 96 Stat. 91, 93 (amending§506(a), title 17, United States Code and title 18 of the United States Code), enacted May 24, 1982.
  • [Copyright Amendments], Pub. L. No. 97-215, 96 Stat. 178 (amending the manufacturing clause in chapter 6, title 17, United States Code), enacted July 13, 1982.
  • [Copyright Amendments], Pub. L. No. 97-366, 96 Stat. 1759 (amending §110 and §708, title 17,United States Code, regarding the redesignation of registration fees as filing fees, and the exemption from copyright liability of certain performances of nondramatic literary or musical works), enacted October 25, 1982.
  • Record Rental Amendment of 1984, Pub. L. No. 98-450, 98 Stat. 1727 (amending §109 and §115,title 17, United States Code, with respect to rental, lease or lending of sound recordings), enacted October 4, 1984.
  • Semiconductor Chip Protection Act of 1984, title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347 (adding chapter 9, title 17, United States Code, to provide design protection for semiconductor chips), November 8, 1984.
  • [Copyright Amendments], Pub. L. No. 99-397, 100 Stat. 848 (amending §111 and §801, title 17,United States Code, to clarify the definition of the local service area of a primary transmitter in the case of a low power television station), enacted on August 27, 1986.
  • [Amendments to the Semiconductor Chip Protection Act of 1984], Pub. L. No. 100-159, 101 Stat. 899 (amending chapter 9, title 17, United States Code, regarding protection extended to semiconductor chip products of foreign entities), enacted November 9, 1987.
  • Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, enacted October 31, 1988. (See the Appendix K for certain provisions of this Act that do not amend title 17 of theUnited States Code.)
  • [Copyright Amendments], Pub. L. No. 100-617, 102 Stat. 3194 (extending for an additional eight-year period certain provisions of title 17, United States Code, relating to the rental of sound recordings and for other purposes), enacted November 5, 1988.
  • Satellite Home Viewer Act of 1988, title II of Pub. L. No. 100-667, 102 Stat. 3935, 3949, enacted November 16, 1988.
  • Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642, 4672 (amending §912, title 17, United States Code), enacted November 19, 1988.
  • Copyright Fees and Technical Amendments Act of 1989, Pub. L. No. 101-318, 104 Stat. 287, enacted on July 3, 1990.
  • Copyright Royalty Tribunal Reform and Miscellaneous Pay Act of 1989, Pub. L. No. 101-319, 104 Stat. 290, enacted July 3, 1990.
  • Copyright Remedy Clarification Act, Pub. L. No. 101-553, 104 Stat. 2749, enacted November 15, 1990.
  • Visual Artists Rights Act of 1990, title VI of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128, enacted December 1, 1990.
  • Architectural Works Copyright Protection Act, title VII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5133, enacted December 1, 1990.
  • Computer Software Rental Amendments Act of 1990, title VIII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat 5089, 5134, enacted December 1, 1990.
  • Semiconductor International Protection Extension Act of 1991, Pub. L. No. 102-64, 105 Stat. 320 (amending chapter 9, title 17, United States Code, regarding protection extended to semiconductor chip products of foreign entities), enacted June 28, 1991.
  • Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, 272 (amending chapter 3,title 17, United States Code, as described immediately below and by deleting subsection 108(i)), enacted June 26, 1992. (Also, through an independent provision that does not amend title 17 of theUnited States Code, the Act established the National Film Registry under title II, which is the National Film Preservation Act of 1992.)
  • Copyright Renewal Act of 1992, title I of the Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (amending chapter 3, title 17 of the United States Code, by providing for automatic renewal of copyright for works copyrighted between January 1, 1964, and December 31, 1977), enacted June 26, 1992.
  • [Copyright Amendments], Pub. L. No. 102-492, 106 Stat. 3145 (amending §107, title 17, United States Code, regarding unpublished works), enacted October 24, 1992.
  • [Copyright Amendments], Pub. L. No. 102-561, 106 Stat. 4233 (amending §2319 title 18, United States Code, regarding criminal penalties for copyright infringement), enacted October 28, 1992.
  • Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237 (amending title 17 of theUnited States Code by adding a new chapter 10), enacted October 28, 1992.
  • North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2114 and 2115 (amending §109, title 17, United States Code, and adding a new §104A), enacted December 8, 1993.
  • Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304 (amending, inter alia, chapter 8, title 17, United States Code), enacted December 17, 1993.
  • Satellite Home Viewer Act of 1994, Pub. L. No. 103-369, 108 Stat. 3477 (amending, inter alia, §111and §119, title 17, United States Code, relating to the definition of a local service area of a primary transmitter), enacted October 18, 1994.
  • Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (amending, inter alia,§104, title 17, United States Code, and adding a new chapter 11), enacted December 8, 1994. (SeeAppendix L for the text of certain provisions of this Act that do not amend title 17 of the United States Code.)
  • Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (amending, inter alia, §114 and §115, title 17, United States Code), enacted November 1, 1995.
  • Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, 110 Stat. 1386, 1388 (amending §603(c), title 17, United States Code and §2318, title 18, United States Code), enacted July 2, 1996.
  • Legislative Branch Appropriations Act, 1997, Pub. L. No. 104-197, 110 Stat. 2394, 2416 (amending,inter alia, title 17 of the United States Code, by adding a new §121 concerning the limitation on exclusive copyrights for literary works in specialized format for the blind and disabled), enacted September 16, 1996.
  • [Copyright Amendments and Amendments to the Semiconductor Chip Protection Act of 1984], Pub. L. No. 105-80, 111 Stat. 1529 (making technical amendments to certain provisions of title 17, United States Code), enacted November 13, 1997.
  • No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678, enacted December 16, 1997.
  • Sonny Bono Copyright Term Extension Act, title I of Pub. L. No. 105-298, 112 Stat. 2827 (amending chapter 3, title 17, United States Code, to extend the term of copyright protection for most works to life plus 70 years), enacted October 27, 1998.
  • Fairness in Music Licensing Act of 1998, title II of Pub. L. No. 105-298, 112 Stat. 2827, 2830 (amending, inter alia, §110, title 17, United States Code, and adding §513 to provide a music licensing exemption for food service and drinking establishments), enacted October 27, 1998.
  • Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2887 (title IV amending §108,§112, §114, chapter 7 and chapter 8, title 17, United States Code), enacted October 28, 1998. (This Act also contains four separate acts within titles I, II, III, and V that amended title 17 of the United States Code. These four acts are each separately listed below. See the Appendix B for additional provisions of this Act that do not amend title 17 of the United States Code.)
  • WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, title I of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2861 (amending title 17 of the United States Code, inter alia, to add a new chapter 12 which prohibits circumvention of copyright protection systems and provides protection for copyright management information), enacted October 28, 1998.
  • Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2877 (amending title 17 of the United States Code, to add a new §512), enacted October 28, 1998.
  • Computer Maintenance Competition Assurance Act, title III of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2886 (amending §117, title 17, United States Code), enacted October 28, 1998.
  • Vessel Hull Design Protection Act, title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2905 (adding chapter 13, title 17, United States Code, to provide design protection for vessel hulls), enacted October 28, 1998.
  • [Copyright Amendments and Amendments to the Vessel Hull Design Protection Act], Pub. L. No. 106-44, 113 Stat. 221 (making technical corrections to title 17 of the United States Code), enacted August 5, 1999.
  • Satellite Home Viewer Improvement Act of 1999, title I of the Intellectual Property and Communications Omnibus Reform Act of 1999, Pub. L. No. 106-113, 113 Stat. 1501, app. I (amending chapters 1 and 5 of title 17 of the United States Code to replace the Satellite Home Viewer Act of 1994 and amending chapters 12 and 13 of title 17), enacted November 29, 1999.
  • Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Pub. L. No. 106-160, 113 Stat 1774, (amending chapter 5 of title 17 of the United States Code to increase statutory damages for copyright infringement), enacted December 9, 1999.
  • Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. No. 106-379, 114 Stat. 1444 (amending the definition of work made for hire in title 17 of the United States Code, amending chapter 7 of title 17, including changing the language regarding Copyright Office fees, and making other technical and conforming amendments to title 17), enacted October 27, 2000.
  • Intellectual Property and High Technology Technical Amendments Act of 2002, Division C, Title III, Subtitle B of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758, 1901 (making technical corrections both to title 17, United States Code,and, as described in footnotes where appropriate, to title I of the Intellectual Property and Communications Omnibus Reform Act of 1999, entitled the Satellite Home Viewer Improvement Act of 1999, Pub. L. No. 106-113, 113 Stat. 1501, app. I), enacted November 2, 2002.
  • Technology, Education, and Copyright Harmonization Act of 2002, Division C, Title III, Subtitle C of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758, 1910 (amending chapter 1, title 17, United States Code, to incorporate provisions relating to use of copyrighted works for distance education), enacted November 2, 2002.
  • Small Webcaster Settlement Act of 2002, Pub. L. No. 107-321, 116 Stat. 2780 (amending chapter 1, title 17, United States Code, to incorporate new language into section 114), enacted December 4, 2002.
  • Copyright Royalty and Distribution Reform Act of 2004, Pub. L. No. 108-419, 118 Stat. 2341 (revising chapter 8, title 17, United States Code, in its entirety), enacted November 30, 2004.
  • Individuals with Disabilities Education Improvement Act of 2004, Title III, Pub. L. No. 108-446, 118 Stat. 2647, 2807 (amending section 121, title 17, United States Code, to further expand authorized reproduction of copyrighted works for the blind or people with other disabilities), enacted December 3, 2004.
  • Satellite Home Viewer Extension and Reauthorization Act of 2004, Title IX, Division J of the Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 3393 (amending section 119, title 17, United States Code throughout and by extending for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers), enacted December 8, 2004.
  • Anti-counterfeiting Amendments Act of 2004, Title I of the Intellectual Property Protection and Courts Amendments Act of 2004, Pub. L. No. 108-482, 118 Stat. 3912 (amending section 2318, title 18, of the United States Code concerning trafficking in counterfeit or illicit labels in connection with stolen copyrighted works), enacted December 23, 2004.
  • Fraudulent Online Identity Sanctions Act, Title II of the Intellectual Property Protection and Courts Amendments Act of 2004, Pub. L. No. 108-482, 118 Stat. 3912, 3916 (amending section 504(c), title 17, United States Code, to add language making it a criminal violation to knowingly provide false contact information for a domain name that is used in connection with copyright infringement when registering the domain name with authorities), enacted December 23, 2004.
  • Artists’ Rights and Theft Prevention Act of 2005 (also known as the “ART Act”), Title I of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218 (amending chapter 113, title 18, United States Code, to add a new section 2319B authorizing criminal penalties for unauthorized recording of motion pictures; amends section 506(a), title 17, United States Code, in its entirety; amending section 2319, title 18, United States Code, by adding criminal penalties for section 506(a); amending section 408, title 17, United States Code, by adding new language authorizing preregistration of works being prepared for commercial distribution; and directing the United States Sentencing Commission to establish policies and guidelines for intellectual property crimes), enacted April 27, 2005.
  • Family Movie Act of 2005, Title II of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218, 223 (amending section 110, title 17, United States Code, to add a new exemption from infringement for imperceptible skipping of audio and video content in motion pictures), enacted April 27, 2005.
  • Preservation of Orphan Works Act, Title IV of the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218, 226 (amending section 108(i), title 17, United States Code, to add orphan works to the list of works that are exempt from certain limitations on uses by libraries and archives), enacted April 27, 2005.
  • Copyright Royalty Judges Program Technical Corrections Act, Pub. L. No. 109-303, 120 Stat. 1478 (to make clarifying and technical corrections to chapter 8United States Code, and related conforming amendments), enacted October 6, 2006.
  • Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403, 122 Stat. 4256 (amending civil and criminal provisions in chapters 4, 5 and 6, title 17, United States Code, and related provisions in title 28, United States Code), enacted October 13, 2008.
  • Vessel Hull Design Protection Amendments of 2008, Pub. L. No. 110-434, 122 Stat. 4972 (amending definitions in section 1301), enacted October 16, 2008.
  • Webcaster Settlement Act of 2008, Pub. L. No. 110-435, 122 Stat. 4974 (amending section 114 to implement the webcaster settlement agreement), enacted October 16, 2008.
  • Webcaster Settlement Act of 2009, Pub. L. No. 111-36, 123 Stat. 1926 (amending section 114 to authorize 30-day negotiation period for webcasters and copyright holders), enacted June 30, 2009.
  • Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118, 123 Stat. 3409 (amending section 119, title 17, United States Code, to extend certain time periods to February 28, 2010, and to repeal section 4(a) of the Satellite Home Viewer Act of 1994), enacted December 19, 2009.
  • Temporary Extension Act of 2010, Pub. L. No. 111-144, 124 Stat. 42 (amending section 119, title 17,United States Code, to extend certain time periods to March 28, 2010) enacted March 2, 2010.
  • Satellite Television Extension Act of 2010, Pub. L. No. 111-151, 124 Stat. 1027 (amending section 119, title 17, United States Code, to extend certain time periods to April 30, 2010) enacted March 26, 2010.
  • Continuing Extension Act of 2010, Pub. L. No. 111-157, 124 Stat. 1116 (amending section 119, title 17, United States Code, to extend certain time periods to May 31, 2010) enacted April 15, 2010.
  • Satellite Television Extension and Localism Act of 2010, Pub. L. No. 111-175, 124 Stat. 1218 (amending sections 111, 119, 122, 708, and 804 of title 17, United States Code) enacted May 27, 2010.
  • Copyright Cleanup, Clarification, and Corrections Act of 2010, Pub. L. No. 111-295, 124 Stat. 3180 (making miscellaneous clarifying, conforming, and technical corrections throughout title 17 United States Code and section 2318, title 18 United States Code, and repealing section 601, title 17 United States Code) enacted December 9, 2010.

11 comments:

  1. If I understand correctly, copyright protects us against losing income based on our work product. Our real concern is plagiarism, theft of the intellectual content of our work product rather than its monetary value. We use the copyright law to shut down instances of plagiarism.

    The web link below states, in part, "There's an old joke that goes "Whenever anyone says 'It's not the money, it's the principle,' it's really the money." In the case of stealing another's creative work, it is the principle, though."

    http://www.online-literature.com/forums/showthread.php?61315-Why-Plagiarism-is-Wrong

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    1. Thanks, it looks like I need another post about the difference between the statutory based copyright and the non-legal concept of plagiarism.

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  2. Maybe I'm not following your thinking James but copyright protects the means-of-expression rather than the ideas themselves (Copyright Act 1976), and so what a genealogist writes (ignoring mere trees) can still be protected. It's true that avoiding plagiarism plays a large role in this, and that citation/attribution would be very welcome if universally honoured, but that protection is not necessarily for some immediate and quantifiable financial gain. It may contribute to the author's "intellectual wealth", or kudos, which could result in gains at a later stage.

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    1. You are correct that copyright does not protect ideas. But the means of expression is somewhat irrelevant to copyright. The concept is that an "original work" is protected and the term "work" is legally defined. I am writing a post on this shortly.

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    2. I'm not sure how the US definition of 'work' tallies with international copyright law but, as I understand it, it protects "original works of authorship". Although the list you quoted earlier is all about artistic works, the US (as elsewhere) does accommodate certain "intellectual works", including architecture and computer software (see http://www.copyright.gov/help/faq/faq-protect.html) so weren't they intended as mere examples rather than a prescription list?

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    3. You can see from the list in the blog post that there are a very significant number of statutes that need to be addressed in making any definition of something such as the term "work." In addition, you would have to look at a few dozen to a few hundred court cases before you came to your conclusion about whether or not any particular documents qualified as a work. My point is that the whole thing is not simple, it is overwhelmingly complex.

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  3. If a genealogist writes a book about a specific family group and publishes it, the law grants that author copyright protection once the author registers his work with the online Copyright entity. Any essay that the author writes that is derived from the aforementioned book is also copy righted. Genealogists often have a very bad habit of not citing the source of their data. Yes, it is bad form after one has spent years documenting the subjects written about in the author's book. Think about it and perhaps you will understand.

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    1. You might need to be aware that registration is not necessary for copyright protection.

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    2. What is copyrighted is the way the facts are presented, not the facts themselves. Say I wanted to write a book about the same family group as your hypothetical author. I can find and use the same sources that the author uses, present them in the same order, and come to the same conclusions, and I would not be in violation of copyright.

      Hence James' point, the only real benefit of copyright in family history research is the monetary benefit someone could drive from publishing and selling the book.

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  4. The interesting thing is that Judy Russell, The Legal Genealogist, had a post on 5 Sep 2012, "The courts and the orphan works" (see http://www.legalgenealogist.com/blog/2012/09/05/the-courts-and-the-orphan-works/ ) where she discusses, among other things, the topic of orphan works still in copyright. So far as I understand her, her essential point is that if the holder of the copyright cannot be identified and / or frankly doesn't care, then there is a case that copyright gets in the way of distributing the information in question.

    Specifically, she says "But the Authors Guild minds. It doesn’t want Alfred’s play or cousin Elma’s book digitized and certainly doesn’t want them put on the internet simply because they’re copyrighted. The fact that there doesn’t seem to be a particular copyright holder who shares that concern is getting lost here."

    If I've got you both right - that's food for thought.

    Adrian

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    1. Well, attorneys do think in a similar fashion. :-)

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