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The first thing I do now on each Facebook open-source reveal, is to check the PATENTS file for the toxic second paragraph, to see if they've changed it. Sadly, no. I can't imagine being able to use this at any decent-sized company with lawyers. :-( https://github.com/facebook/react-native/blob/master/PATENTS

See for example the discussions at https://news.ycombinator.com/item?id=9111849 (eg. https://news.ycombinator.com/item?id=9113515)

Full disclosure: I work at Google, where many are sad to not be able to use recent Facebook code.

> The license… will terminate… for anyone that [claims] infringement of any patent… by Facebook… whether or not such claim is related to the Software.

> The license… will terminate… for anyone that [claims] infringement of any patent… by any party if such claim arises… from any software, product or service of Facebook.

> The license… will terminate… for anyone that [claims] infringement of any patent… by any party relating to the Software.

> The license… will terminate… for anyone that [claims] that any right in any patent claim of Facebook is invalid or unenforceable.


(Someone had a post asking a good question about what this means. It got downvoted and deleted, which I think is unfortunate for a community that cares about learning about the world around it, so I'm replying here.)

There are two separate kinds of legal protection at issue here, copyright and patent. The only thing that's close to covering ideas is patent law, not copyright law. (I'm assuming US law here, since that's where Facebook and I both are, but most of this is generally true I think.)

Copyright covers a creative expression, and is automatic. If I write a story, paint a picture, compose a song, or code a program, copyright secures my ability to commercialize that creative work as I see fit. If someone else writes a similar story, paints a similar picture, etc. but does not use my words or notes or lines of code, they aren't infringing my "copy right", because they're not copying my work.

Patents cover inventions, and are very non-automatic and best acquired with lawyers. Their term is also much shorter (about a decade, instead of about a century). US law currently lets you patent an algorithm or an arrangement of computer systems, under the artifice that you're actually patenting the implementation of that algorithm on any physical computers. Patents are issued for the invention, not for a specific implementation, and any implementation that works the same way infringes the patent.

(Trademarks, for reference, cover names used in advertising, i.e., "trade marks". They're somewhat automatic, they only cover names, and they're not very often relevant to F/OSS licenses.)

Traditionally, F/OSS licenses have been primarily concerned with copyright, partly because several of them were written when software copyrights were well-acknowledged and enforced, but when software patents were rare or nonexistent. This leaves you in the unfortunate situation where e.g. Facebook can write some code (automatically gaining a copyright), get a patent on the idea, open-source the code, and then sue you for patent infringement despite your copyright license. To avoid that, Facebook has an explicit patent grant in addition to the copyright license. (Although, as other commenters have pointed out, F/OSS licenses that don't specifically restrict themselves to copyright can potentially be read as a implicit patent grant if you stare at it hard enough.)

At no point in this does Facebook claim ownership of your work. Certainly your idea isn't legally owned by anyone, either you or by Facebook, if you haven't gotten a patent on it. Facebook's patents remain Facebook's patents, with or without this clause.

Because patents cover any implementation of an invention (whether or not the implementor knew about the patent), and because patents are in stupidly dense legalese, it's super common for people to be inadvertently infringing a bunch of patents. The traditional solution for this is that large companies have defensive patent portfolios in a sort of mutually-assured-destruction scenario: if Facebook sues Google over a patent, Google will countersue over all the patents they have. So there's an armistice, at least among big companies. The explicit patent grant weakens that, because now Google can just incorporate parts of React into their React-competitor, and Facebook loses a patent from their defensive portfolio.

So a few clauses like these are normal: you get a patent grant from Facebook, as long as you don't sue Facebook over (different) patent infringement. This maintains the armistice between big companies, and it's also great for the little guy, who wasn't going to sue anyway because they don't have any/many patents (but also doesn't have a defensive portfolio because they don't have any/many patents). These clauses only cover claims of patent infringement, which are the thing that everyone is unintentionally doing en masse, not copyright infringement, which is much harder to do unintentionally, so they're pretty fair.

But the fourth clause is super weird. It means that you can't dismantle any of Facebook's patents by e.g. providing prior art, without losing your patent license. It might even mean you can't lobby for software patent reform. It solely holds up Facebook's patent portfolio and the armistice between big companies. Usually dismantling patents is a good thing for everyone, because it's disarmament, and it's unfortunate this license doesn't extend to people who do that.

(IANAL, TINLA, corrections graciously appreciated.)

If you use any of their work then it opens you up to Facebook leveraging this against you. If they feel you violate a patent of theirs and they ask for a royalty or licensing fee - you can't even say it's not a valid patent or you void the right to use React Native, and anything else that has the PATENTS file in it (which is all of their stuff AFAIK) - that's why Google doesn't use it.

I'm not sure that is the case. The linked document says: "The license granted hereunder will terminate ..." that could be read to mean both licenses, the copyright one and the patent one, but the most natural reading, particularly as they are in separate files, is that it is referring solely to the patent license.

If that reading is correct, you can still use React Native to the extent that doing so doesn't violate any of Facebook's patents. They could argue it does and you could argue it doesn't. Until and unless a judge ruled that it did, you could continue using the software.

Edit: Geofft that's a good point. I suppose this really is a poison pill for a sufficiently large company.

Yes, but it also affects you in the case that you argue that some other, unrelated Facebook patent is invalid, even if you're happy to concede that the patents covering React Native are valid.

For Google's use case, it means that if they ever find themselves in court claiming to have prior art on any of Facebook's patents (let's say Facebook sues them over something G+ does, and Google says it was described in the literature well before either of them), they automatically lose the (patent) rights to all of Facebook's OSS, even if they're legally in the right. So they can't build anything they care about on React.

Minor correction, the term of a patent is 20 years from the date of filing in most countries. The amount of time you can exercise your rights during this term is dependent on how quickly the patent office approves your application (if you get stuck on a backlog, the term length may change). Still not a century, but it is quite long.

That is a big excitement killer

So, basically, if you sue Facebook on grounds of patent/copyright infringement for any reason, you don't get to use their software?

No, the license terminates when you make a claim (of which a lawsuit is a subset of) that any 'right' of any patent claim that Facebook makes is invalid or unenforceable. This would include statements to the effect:

"That Facebook patent is invalid." or "Software patents are invalid."

That plus you accept that all of Facebook's patents are valid.

No, it doesn't mean that.

It means that you lose the additional license to use any of Facebook's patents that may cover React. These may or may not exist.

You keep making definitive statements. Are you saying that you can keep using React Native if your patent rights are waived? That'd only be the case of those patents don't exist - but even then Facebook is stockpiling patents related to everything connected with social networks.

Also, they'll likely be patenting whatever they can out of this technology, whether it's valid or not, you'd have to fight any action that Facebook holds against you - in the meantime invalidating everything, allowing Facebook to sue you for violating potentially dozens of patents; most everyone can't afford a lawsuit.

Facebook open sourcing all of these things is purely a power play, and not trying to contribute to the developer community. The power that this is going to allow Facebook to leverage in the future could get really nasty - it's why Google isn't using any of it.

Then why say "whether or not such claim is related to the Software?" That would imply just the opposite to me.

That clause relates to the patents you own that you're suing Facebook over, not the patents Facebook owns that they're (no longer) granting you a license to.

As an example, say Facebook owns patent 1234567 "Method and system for reacting natively". Google owns 7654321 "High-density computers in a data center". Google builds the new Maps app using React Native. This would infringe 1234567, except that React Native comes with a patent grant, so the Maps app is properly licensed.

Then Google sues Facebook over Open Compute Project, claiming infringement of patent 7654321. This has nothing to do with React Native, but Google has just lost its license to 1234567. So Facebook now gets to sue Google over the Maps app. (More likely, Facebook will threaten to sue in order to force a settlement for the other lawsuit.)

Well, OK, fair, but for practical purposes it seems like the same thing.

Yes, and the license could easily be construed to imply that your license is immediately revoked if you tweet "Facebook infringes on patents".

but without patents nobody would ever make progress in software and innovation would be stifled

Even if we assume that to be true, the fourth of those statements still sucks. No free software license denies use to people who have the wrong political views. If you manage to get software patents outlawed in one jurisdiction, your patent license expires in all other jurisdictions. Imagine how much the FSF would love to have a clause saying, if you weaken the GPL in court, your license to use any GPL software expires... but they don't.

And even if we assume that to be true and assume that both parties believe in patents want a robust, well-functioning software patent system, that clause still sucks. If Facebook and I both invent something at roughly the same time and apply for patents, and the Patent Office misreads our applications and grants them both, and I point this out to them and I had priority (thereby invalidating some of Facebook's claims), Facebook gets to terminate all my patent licenses.


No, in no way does it mean that.

Well thanks for the clarification.

Hope you saw my comment above, which tried to be a bit more clear.

No, but it does say "you agree any kind of claim we make is true".

> Full disclosure: I work at Google, where many are sad to not be able to use recent Facebook code.

I'm confused. The Facebook PATENTS stuff seems no worse than MIT-licensed code that includes no patent grant at all.

In other words, if the PATENTS termination clause takes effect, then the software essentially reverts to being plain MIT, instead of MIT + patent grant, right?

EDIT: Appears the issue is implicit vs explicit patent grant, and the Facebook PATENTS stuff can indeed be worse than no patent grant. https://news.ycombinator.com/item?id=9113515

IANAL, but the argument seems to be that there is an implicit patent grant in the MIT license. MIT gives you a license to use the software, and you can't use the software without a patent grant, therefore you have an implicit patent grant. The existence of an explicit patent grant means that you can use React without an implicit patent grant, so you don't just automatically get one if you lose the explicit patent grant.

Wouldn't that implicit patent grant be in every other BSD-style license as well?

As far as I understand it, the patent grand terminates when you end up in court with Facebook and then you're effectively distributing software that may or may not be covered by patents you don't own/have a license for.

No, being in court with Facebook is only one place where the termination can happen:

>anyone that makes any claim (including by filing any lawsuit, assertion or other action)

Even just stating that a Facebook patent is invalid terminates your license.

>any right in any patent claim of Facebook is invalid or unenforceable

Even just stating your belief that software patents are invalid or unenforceable terminates your license.

However, if you read closely, the last paragraph starts out with:

>The license granted hereunder

There isn't actually any license granted after that clause (it occurs before this clause), so I'd argue the entire last paragraph is meaningless puffery.

> There isn't actually any license granted after that clause (it occurs before this clause)

"hereunder" does not refer to a direction within the text :)

Yes, it does.

google "define:hereunder" -> "as provided for under the terms of this document."

With sub-qualification:

>further on in a document.

Even your primary definition contains the location clause, 'under the terms'.

> with a sub-qualification

Odd, that didn't show up in my view o_O Maybe google is geo-targetting dictionary definitions...

Also, 'under the terms of this document' does not literally mean 'physically located beneath this sheet of paper' :P

It can. But it doesn't necessarily.

Nothing better than ambiguous language in psuedo-legal documents.

> Even just stating your belief that software patents are invalid or unenforceable terminates your license.

I guess that's the interesting part. Sources would be really helpful.

The second link I included in the comment above was to DannyBee's discussion of implicit vs explicit patent grants.

Thanks for the pointer.

Can anyone tell me how this clause is interpreted when I use React in Germany? German law (simplified) claims that no software patent is valid unless it solves a technical problem (in the physical problems sense). Does this mean since I accept German law as valid by being a citizen of the country I implicitly claim some (ergo any) Facebook patents are invalid and the clause triggers automatically? Is living in such a country enough or do I have to actively state "Facebook patents..invalid IMO"? What about the German government itself using React?

I'm mostly interested in the interpretation since it's a curious use case. The actual grant you'd lose is pretty much useless in that scenario either way (as it can't really be granted due to the software not patentable issue).

I'm pretty sure you're not making any claims in other jurisdictions implicitly — that would be somewhat terrifying.

Whether the clause is triggered or not shouldn't matter if the patents aren't valid in your jurisdiction.

You don't have to state your rights — you just have them (there might be exceptions to this).


I'd love to get an answer to the bigger question as well.

> (there might be exceptions to this)

Are there ever! For example, right against self-incrimination must now be invoked explicitly. Refusing to answer a question (they will say "being evasive") can be used against you unless you affirmatively state you are exercising your right to remain silent. [1]

[1] - http://www.abajournal.com/news/article/chemerinsky_silence_i...

Fortunately we germans don't have these kind of problems (yet.)

I'm fairly certain that interpretation is bogus.

Facebook holds patents granted in the US. Those patents to do not apply to all other jurisdictions. German law doesn't consider US software patents invalid, they just don't apply under German jurisdiction.

Basically, if Facebook can't sue you for patent infringement in the first place, the clause doesn't apply. If you use React in a product that enters the US market (or any market that is subject to US patent law), that's a different story.

That said, I'm suspicious that the entire thing is not enforceable in Germany in the first place (to clarify: I'm not claiming it's invalid, just speculating that it may not be enforceable in German courts). German contract law is actually pretty restrictive when it comes to what may or may not be in implicit agreements like software licenses.

Case in point: WhatsApp was told off in Germany because it blocked the accounts of users who used third-party clients. Using third-party clients was explicitly forbidden in the WhatsApp ToS, but the clause was considered "surprising" and therefore invalid. The ruling argued that using third-party clients was accepted by most popular similar apps and losing access (not just in the third-party client, but in WhatsApp proper) because of doing that could not reasonably be expected by users.

There are also serious restrictions to what rights you can waive. Not only doesn't the public domain exist in German law (you can grant a universal unrestricted non-exclusive license, but you can't waive your ownership completely), nor can you completely disclaim responsibility (e.g. you can still be sued for intentional harm even if you give something away for free). Another example was Walmart in Germany trying to prohibit employees from entering romantic relationships with each other (and failing, resulting in lots of bad PR).

There's a reason contracts in Germany typically include a clause stating that even if any single clause is legally invalid the other clauses (or even "the spirit of those clauses" in so far as it can be enforced otherwise) still remain in effect. I'm not sure whether this is actually required, but the idea is that it prevents contracts from becoming invalid because of any single clause being ruled invalid.

So I guess you don't use any Apache licensed products at work either? Since the only reason Facebook added the PATENTS file is to keep the new BSD license in line with their old Apache license. http://www.apache.org/licenses/

Apache 2.0's license clause does not have an equivalent to "The license granted hereunder will terminate, automatically and without notice, for anyone that makes any claim (including by filing any lawsuit, assertion or other action) alleging [...] that any right in any patent claim of Facebook is invalid or unenforceable."), which is the problematic part as it means that you can't even defend yourself if Facebook sues you.

The Apache version is:

> If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

This seems equivalent to me, is the Facebook one broader?

That says that if you claim that the thing being licensed violates your patents, your grant to their patents covering the thing is terminated. Facebook's patent grant has that, but also invalidates the patent grant if you claim that any of their patents are invalid (which you are likely to do if Facebook sues you for violating one of their patents).

So what if Apache committed something that is infringing on your patents and you sue? Does that mean you would have to stop using that specific apache licensed software (e.g. hadoop, maven, etc)

You lose the patent grant for that specific product: e.g. if you sue someone over a patent infringement in Hadoop you lose the patent grant for Hadoop, but not Maven. This may or may not mean that you have to stop using Hadoop.

I'm not a lawyer and I'm using my best guess. But you have to be on the offensive and sue Apache to terminate their license, Facebook's license says even claiming their patents are invalid terminates the license.

As with the other discussions on this matter, I remain sceptical that this clause is a problem.

The general argument is made that there is an implicit patent license granted when an open-source license is applied to a software product, and that this explicit patent license somehow overrides the implicit patent license (despite not being part of the license itself).

I've received different advice on the matter, so YMMV. But at the Google level, I'd imagine there'd be channels to negotiate an acceptable solution to this issue…

Yes, it strikes me as a fig leaf for something else. I'm not sure what, though.

That's a good point actually. Regardless of your personal opinion on the applicability of the clause, if your company's lawyers say you can't use FB's software, you're pretty much out of luck. I wonder how many companies and developers have been effectively blocked out of the ecosystem as a result.

I asked the FB Engineers that were manning the Open Source booth at F8 today about this. They assured me that it wasn't a threat, or any change in ideology on their end as open source contributors. That they were also concerned with the community, and that their lawyers were looking into it currently. Not really an answer, but at least they awknowleged the criticisms.

Yeah, it'll be nice when the license actually reflects this. Until then I wouldn't build my business on it, ever.

Yahoo and Netflix are using React, right? Do you (or anyone) know why they consider the license acceptable, but Google wouldn't?

Mutually assured destruction. If Facebook sued Yahoo, Yahoo could sue Facebook right back.

I'm not really sure what Facebook thinks they are gaining with this clause. They aren't going to stop patent trolls, because they are non-practicing entities. Maybe they want to guard against someone making improvements to React and then suing Facebook if they do something similar later.

Pre Mayer Yahoo did sue Facebook over patents. They settled. As far as I could see the fact that the only big patent fight fb has been in ended with a company with a boatload of lawyers being cool with these terms should bode well for anyone else. If you have patents they shouldn't rely explicitly on open source library x y z, but I am not a lawyer either.

> Mutually assured destruction

Wouldn't that apply to Google as well?

If you think you can dominate your opponent then MAD is not the most desirable outcome.

Any idea what there is in React that Facebook have or are likely to have Patents over? Presumably, using another React-like framework might open you up to issues with these without the (limited) protection of the patent grant.

There is prior art, the first time I saw vdom was at Clojure Conj 2012, six months before React was publicly released. Project was called "webfui" by Conrad Barski, https://m.youtube.com/watch?v=HeI5-D7SQe8

You just terminated all of your Facebook patent licenses, just then, by your assertion alleging that any right in any patent claim of Facebook is invalid or unenforceable.

I don't think anyone has been able to answer this (and I suspect anyone at Facebook who might know is not allowed to bring it up).

But I think you've made a very good point. If you're not going to avoid all component-based and/or virtual-DOM view engines, picking an alternative to React may not give you any advantage in a legal situation.


I'm interpreting the "this license will revoke" as referring to the additional patent grant, not the BSD license for use of the software.

I wrote about something similar with VP8, which is highly patent-encumbered. Google was like:

1. You have a license to our related patents

2. You're on your own if someone else claims that your use of our stuff infringes their patents

    2a. But if the party suing is also a licensee, they lose their license.
3. You lose your license if you come after us for anything.

These kinds of licenses have network effects, and are only really effective in a mutually-assured destruction scenario.


This is quite an out of date article and your #3 is totally wrong.

Not only did the call for patents never actually materialize anything (12 supposed but never named companies in a press release four years ago), Google bought out the MPEG LA's claims anyway[1].

Meanwhile the VP8 patent grant[2] is exactly the kind of thing being contrasted here: you lose your license to the VP8 patents only if you sue over patent infringement in VP8 itself.

[1] http://arstechnica.com/information-technology/2013/03/google...

[2] http://www.webmproject.org/license/additional/

> The first thing I do now on each Facebook open-source reveal, is to check the PATENTS file for the toxic second paragraph, to see if they've changed it. Sadly, no

If I'm reading this right, any fork of this code is not covered by the patent-protection can be sued into oblivion, by Facebook themselves if they feel threatened. Wow.

Ability to fork is crucial for real life open-source projects, so having a clause like that pretty much nulls out any open-source benefit which may have been there in the first place.

What would you suggest as a solution to this? What should Facebook do?

It's a near-certainty that any tech giant is going to have patent issues with any other tech giant, not bundling the consequences of this with their open source licenses would be a good start.

I am not a lawyer, but perhaps they could just skip the second paragraph? I understand the motivation behind discouraging people from suing you, but putting "you will not sue us for patent infringement" into a software license is a bit weird.

I've raised this many times before, but you shall not sue us is emphatically not part of the software license. It's a separate grant of patent rights.

Are you nitpicking legal semantics (including something in one agreement or another), or saying it's possible to legally use React-Native while suing Facebook for completely unrelated patent infringement?

The latter.

It is absolutely possible to legally use React while going ahead and suing Facebook. You do not lose your license to React by suing Facebook.

What you do lose is an explicit grant of additional patent rights - the grant given in the PATENTS file. Note that there is no specification therein regarding what patents might be covered; it's completely possible that none of Facebook's patents have anything to do with React. I haven't looked. in any case, patents are totally distinct from you license to use React.

> It is absolutely possible to legally use React while going ahead and suing Facebook.

Only if it's possible to use React without infringing (or licensing) any Facebook patents. "Use" is not just about copyright.

(Which, as you point out, is plausible; there's just no reason to believe it's guaranteed to be true.)

OK, so I can legally use React-Native in my app while suing Facebook for unrelated patent infringement. I also can claim the patent they are suing me for infringing is invalid while continuing to use React-Native.

Would it be practically advisable to do so?


You have to differentiate between copyright and patents.

From the perspective of copyright you're perfectly in the clear, the grant of rights that's part of the BSD license will not be revoked.

What will be revoked is the right to Facebook's patents insofar they apply to React.js. First of all that that requires, that Facebook actually has patents that apply to React.js. It also means you're no worse off than without a patent grant.

I prefer the Apache 2.0 wording, but this seems to be blown widely out of proportion.

> It also means you're no worse off than without a patent grant.

No, see discussion above re: implicit and explicit patent grants. You don't fall back to an implicit grant when an explicit one is revoked.

It says if you get into a patent disagreement with their company you can no longer use react, whether they sue you, or you sue them. I'm not planning on suing facebook, but if they sue me, suddenly I have 2 problems, the lawsuit, and not being able to use react anymore.

It should only regard to react. If the clause is to protect their right to develop react, it should only pertain to such.

Please don't spread fear and uncertainty based on incorrect understanding of licensing.

Suing Facebook does not void your license to use React. It voids your additional patent grant. That's different.

So what does the additional patent grant actually grant?

The guarantee that Facebook won't sue you if they have patents that apply to React.js.

To put it simple, without the patent grant you'd be worse off. But with the Apache 2.0 version you'd be better off.

Not quite - there's an implied patent license that comes with licenses that mention nothing about patents, because otherwise nobody could use the code. Once the license explicitly gives a patent grant, it replaces that implied patent license. Think of it like C++ default constructors.


I'm curious too. :)

Well, you can make a pull request editing it. /s

That trick did work on Elon Musk.

I guess lawyers like run-on sentences. That second paragraph is one sentence, and is one of the longest I have seen. I guess the more complicated a sentence is composed, the more opportunity for legal interpretation.

This license is great since it reduces the chance of patent litigation in general.

If all companies issued code under these terms, and they all used each others' code, it would certainly make patent lawsuits impossible between them.

That might or might not be Facebook's goal in the license, but regardless, it seems like a great outcome. Likewise, avoiding that outcome might or might not be Google's reason for not using this code, but since other companies are, it seems in need of explanation.

> it would certainly make patent lawsuits impossible between them

Or they sue each other anyways and it takes another 5-10 years to figure that situation out, hobbling any OS development under those licenses while there are very clear and widely used and accepted patent grants available.

There's a reason the FSF recommends Apache 2.0 if you aren't going to go GPL.

I get that Apache and GPL are well-established (perhaps not GPL3 yet though?), and that encourages stability to use them.

But this new patent license is stronger. If it would make the industry safer from patent armageddon in the long term, it might be worth the effort to popularize yet another license.

The reason is not just that Apache is well established, it's that it's sane in its extent.

Let's say 10 years from now Facebook decides to go on the warpath over fairly bogus patents. The EFF puts the headline patent on their Most Bogus patent busting list and then puts out the cry for "who is with us?"

No company using any Facebook open source code answers.

How does that make the industry safer?

Well, let's say that Facebook is using other company's code with a similar patent grant. Then Facebook can't go on the warpath in the first place.

I understand there might be a chicken-and-egg problem here. But the final outcome seems optimal with this license. And someone has to go first.

But is there evidence that Facebook is willing to use other companies' code under similar grant?

Are you be able to use BSD licensed code without additional patents grants?

I'm not very familiar with the specific details of software licencing, can someone explain this situation to me?

Thanks for bringing this up. I'm now waiting to hear from our lawyers to know if we should avoid using this.

I'm quite a noob concerning law stuff, can you please provide a little explanation about its patent? Thank you for your attention.

> Full disclosure: I work at Google,

Good for you buddy.

Don't be sad, you will use Angular 2.x when will come out.

Well, potentially, if Angular 2.x adopts the virtual DOM like React , Angular directives could be used in native Apps,just like React Native. There is no reason why it can be done.Any framework that isn't tightly coupled with the DOM can be "ported" to plateforms outside the browser.

If they're serious about open source, they should just Unlicense it.


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