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Proctoring Software Company Used DMCA To Take Down a Student's Critical Tweets (techcrunch.com) 130

A series of tweets by one Miami University student that were critical of a proctoring software company have been hidden by Twitter after the company filed a copyright takedown notice. TechCrunch reports: Erik Johnson, a student who works as a security researcher on the side, posted a lengthy tweet thread in early September about Proctorio, an Arizona-based software company that several U.S. schools -- including his own -- use to monitor students who are taking their exams remotely. But six weeks later, Johnson received an email from Twitter saying three of those tweets had been removed from his account in response to a request by Proctorio filed under the Digital Millennium Copyright Act.

Proctorio, based in Scottsdale, Arizona, says its proctoring software is privacy friendly. Students are required to install its Chrome extension before taking a test, which the company says students can remove once they're done. Unlike desktop software, most Chrome extensions can be easily downloaded and their source code viewed and examined. Johnson did this and tweeted his findings. Three of those tweets described under what circumstances Proctorio would "terminate" a student's exam if it detected signs of potential cheating -- such as if a student "switched networks" or if "abnormal clicking" and "eye movements" were detected. The tweets also included a link to snippets of code found in Proctorio's Chrome extension, which Johnson posted to code-sharing site Pastebin. Those three tweets are no longer accessible on Twitter after Proctorio filed its takedown notices. The code shared on Pastebin is also no longer accessible, nor is a copy of the page available from the Internet Archive's Wayback Machine, which said the web address had been "excluded."
Proctorio emailed TechCrunch a statement through its crisis communications firm Edelman, claiming Johnson "violated Proctorio's exclusive rights by copying and posting extracts from Proctorio's software code on his Twitter account," and in response, Proctorio filed the DMCA takedown request "to ask that the content be removed and Twitter removed it."

"Mr. Johnson's claim that he has the right to reproduce the code because he was able to download it is simply not true. Regardless of his ability to download the files, they remain protected under the Copyright Act. Also, had Mr. Johnson looked at the files he downloaded, he would have seen the multiple copyright notices in the header of each file that state expressly that the code is owned by Proctorio and that 'unauthorized reproduction, display, modification, or distribution of this software, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the full extent permitted by law.' His reproduction of that code violated Proctorio's rights, which is why Proctorio asked Twitter to remove it," said Edelman's senior vice president Andy Lutzky, on behalf of Proctorio.
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Proctoring Software Company Used DMCA To Take Down a Student's Critical Tweets

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  • Fair Use (Score:5, Insightful)

    by jimjam420 ( 5335759 ) on Thursday November 05, 2020 @08:32PM (#60689780)
    I hope they have to pay his legal fees too.
    • Re: Fair Use (Score:4, Informative)

      by NagrothAgain ( 4130865 ) on Thursday November 05, 2020 @09:08PM (#60689912)
      What fees? He didn't file a counterclaim, which he can do for free.
      • by raymorris ( 2726007 ) on Thursday November 05, 2020 @09:25PM (#60689966) Journal

        Yep, he needs to send a counter-claim to Pastebin and Twitter.
        They are then required to re-instate the content (or lose their DMCA protection).

        I'm considering setting up a VPS in a country that doesn't care about US law just so I can re-post stuff like this. Assuming he posted small snippets to back up his factual description of what the code does, that's fair use.

        If he copied the entire plugin, and especially if he used it for his own proctoring service, that would be a different thing entirely.

        • Yep, he needs to send a counter-claim to Pastebin and Twitter. They are then required to re-instate the content (or lose their DMCA protection).

          Sending a counter-notice does not cause the hosts to be required to restore the content, and none of their liability protections under DMCA are at risk if they don't.

          We hope they restore after a counter-notice, but the only they thing have to do to keep the liability protection is to respond to the original notices. Hosts can totally blow off all counter-notices if

          • Quoting 17 USC 512 (g)(2):

            (2)Exception.â"Paragraph (1) [protection from liability] shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider --

            (A)takes reasonable steps promptly to notify the subscriber that it has removed

            • You made me look! Turns out you're "the best kind of correct" in that there is a non-copyright-related liability at stake. But no, blowing off counter-notices does not cause the host to become liable for the infringement or lose safe harbor protection or anything else copyright-related.

              Everything you quoted in 512(g)(2) is an exception to liability protection in 512(g)(1). But what liability does 512(g)(1) protect against, which is lost by failing to put the content back up? Let's see:

              (1) No liability for

          • As Ray has stated, you're wrong. They have 10 days to restore the content unless the party who sent the notice provides proof of legal action.
      • Re: Fair Use (Score:5, Insightful)

        by russotto ( 537200 ) on Thursday November 05, 2020 @10:12PM (#60690096) Journal

        "Filing a counterclaim" to a DMCA notice is literally saying "sue me". To much better lawyers. It's not free, though there are no formal fees.

        • by AmiMoJo ( 196126 )

          Countries really need to set up Copyright Small Claims Courts. No lawyer needed, ideally all done online. No cost to the infringer unless it was deliberate or repeat or on a grand scale.

          Then when things like this happen an individual can use the court to resolve the issue at minimal financial risk, representing themselves and on a more equal footing with even the biggest corporations.

    • What legal fees?

      He's not going to incur any, most likely. That's the bet the big companies are making.

      Does he have the time and money to hire a bunch of lawyers? Is he smart enough to hire one to do analysis of his chances for success making it clear that they would not be hired if he's got a shot? And you really need to do this if this is your first rodeo, because a lot of lawyers will happily take your money to argue anything you want in court. If you're taking that sort of risk, you need to do it eyes-op

    • If someone posted a code snippet from windows 10 could it ever be fair use?
      • Ironically, yes. Loads of people have taken the leaked source code of NT4/2000/XP and displayed snippets of it as part of legitimate commentary and criticism. Some have even compiled it to validate its legitimatacy as a leak. No DMCA requests were filed by Microsoft in response when the situation was fair use (to my knowledge)
        • Re: Fair Use (Score:5, Insightful)

          by rtb61 ( 674572 ) on Thursday November 05, 2020 @11:07PM (#60690244) Homepage

          You missed the bit where "Chrome extensions can be easily downloaded and their source code viewed and examined", the company uploaded it on that basis, that the code could be viewed and examined. Once the did that the code was published free to view, just not use. In this case it would only be an infringement if the 'CODE' was used as code, not printed and read. So their intent was to silence criticism.

          I always look around during exams when stuck, relax look at the ceiling, the lecturer, other people taking the test, just idling a few moments to reset for the next question.

          That you can get kicked for potential cheating, that is real worrying and extremely unfair, you either have to catch them cheating or not and not potentially cheating.

          • Yea they didn't like the big brother chinese style spying and monitoring to be exposed cause people would refuse to use it.
          • by etash ( 1907284 )
            how can the extension detect eye movement?
          • An enduring solution would be:- 0) Identify code by checksum or unique version number 1) Strip or dump the code lines using GREP with a table holding key strings of interest 2) Insert commentary based upon relevancy score. 3) If obfuscation is used a memory dump and piping to some reprocessing code would fix that. 4) Optionally, patch some of the conditional the branch statements could be changed to IF cheating then NOP and at the end changed back 5) This is the same way game cheats are installed - patch in
          • by Cederic ( 9623 )

            Once the did that the code was published free to view, just not use. In this case it would only be an infringement if the 'CODE' was used as code

            Free to view does not mean free to share.
            It's also an infringement to create a copy of the code and share it. That's pretty much textbook copyright infringement.

            There are fair use exemptions, but 'they made it possible to read it' isn't remotely close to being one of them.

            Let's face it, books have copyright protection yet it'd be hard to argue that they aren't made publicly available to view.

            • It would absolutely be fair use to take small sections of code for commentary. It would also be a long, expensive court battle to prove that it was fair use.

          • by AmiMoJo ( 196126 )

            They need to redesign the exams so that they can be taken open book. Nothing else works, eye tracking is obviously flawed, even the facial recognition stuff doesn't work with dark skin.

            In the real world you can pick up a book when you need help, or look on Stack Overflow. Your employer doesn't care, they just want the work done in reasonable time.

          • Ease of copying does not grant copyrights. I can easily copy all of the Beatles songs and upload them to the Internet. That does not mean I had the right to do so.
            • the code was published

              You missed the point. "Ease" is not the operative concept here. Nor is the question of whether it was copyrighted in the first place; it was.

              The question is whether it was fair use to publish it. And it was, thus giving him the legal right to do so.

          • Comment removed based on user account deletion
          • the company uploaded it on that basis, that the code could be viewed and examined. Once the did that the code was published free...

            Sort of like once a book is published, you are free to copy it's content wherever you want. Oh wait...

    • is it an state school if so then make an 1st amendment as the school (the state) more or less is saying the some one can't use 1st rights

      • Copying copyrighted material doesn't count as free speech.

        • that is an issue for the courts

          • that is an issue for the courts

            You can't defend a copyright violation claiming it's your first amendment right to distribute the source material. If it was it'd completely negate copyright law and that's not on the table in any court.

            Well, YOU can try. And don't let anything you read here stop you. Hire all the lawyers you want, and your expense, to defend yourself on that claim. A certain phrasing about fools and money come to mind.

    • Except that might not fly with posting copyrighted code. There are requirements even for fair use, and just posting the code isn't fair use, and even if he provided critique of it, it's somewhat questionable.

      If I read the article right, two of his tweets didn't have any of the code in them, so those sound like false DMCA takedowns, which is illegal, but good luck getting that to court.

      ianal, but there are lawyers out there, including specifically Copyright Attorneys that discuss this exact type of stuff a l
      • those sound like false DMCA takedowns, which is illegal

        Are you sure about that? Historically, one of the major complains about DMCA notices is that sending false takedowns does not have any downside for the issuer. I can spam you with millions of completely bogus, unfounded, bad-faith takedowns and nothing will happen.

        The only exception is if you falsely represent the copyright owner. If you're not doing that, you are free to harass people with bullshit all you want. Just don't say you're Disney and you ha

        • The DMCA provides a remedy for these bad-faith takedowns, specifically:

          Any person who knowingly materially misrepresents under this section—

          (1) that material or activity is infringing, or
          (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

          http://smithlawtlh.com/false-f... [smithlawtlh.com]

          • Daamn. [cornell.edu] I stand corrected. While fraudulent notices aren't "illegal" they do at least incur liability for whatever costs the fraud causes. Thanks for correcting me.
    • "Fair use" can protect you from punishment for copyright infringement. But it is an affirmative defence, it doesn't say that copyright infringement hasn't happened, it just means that in this particular case it's not punished.

      That doesn't mean you can't get a DMCA takedown notice.
      • But it is an affirmative defence, it doesn't say that copyright infringement hasn't happened, it just means that in this particular case it's not punished.

        There's no infringement under fair use.

        One of the most important things to remember about fair us is that “fair use is not just excused by the law, it is wholly authorized by the law.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016). Thus, even if someone is using a copyrighted work, if it is being used as authorized by 17 U.S.C. 107, the use is not infringing.

        http://smithlawtlh.com/false-f... [smithlawtlh.com]

    • How is posting source code considered Fair Use? He can criticize the software all he wants but he does not have the right to share source code. This story implies his tweets were removed only because he criticized the company and only briefly mentioning he pasted snippets of source code.
      • He posted small snippets of code for the purpose of commentary. This is pretty much a textbook case of fair use, though as others have said getting that affirmed in court could prove expensive. Forget for a moment that this involves code. What he did was equivalent to including a short quote from a book in a critique of that book. No sane court would consider that infringement. Doing so would pit copyright directly against the 1st Amendment right to freedom of speech—which is how the concept of "fair

        • Since when has posting source code even for commentary considered Fair Use? He can show parts of the UI. He can comment on the software. Posting of someone else’s source code has always been a big no no. Also the ease of copying something does not grant copyright. It is easy to upload copyrighted songs to the Internet; that does not mean rights were given. The company sharing their code with others also does not grant those rights to him.
          • You seem to be under the mistaken impression that source code receives more stringent copyright protection than other works of literature. Code is no different from any other written work, unless you count the fact that the original expression which copyright is meant to cover has been diluted with functional elements strictly outside of copyright's scope. That difference, however, does nothing to favor stronger protection for code; rather the opposite.

            You also appear to be under the mistaken impression tha

            • You seem to be under the mistaken impression that source code receives more stringent copyright protection than other works of literature.

              You do understand that source code is not literature? If you don’t believe me, go ahead and post Windows source code for commentary; see if it is not taken down.

              What I actually said was that the company cannot possibly suffer any damage from redistribution of code which they have already made available to the public for free

              Which missed the complete point. If you don't have a right to distribute you don't have a right to distribute. Claiming there is no damage misses the point. Only the copyright holder can dictate who gets to distribute. For example MS releases Windows patches for free. Can you take their patches and host them for download on your website? No. C

              • You seem to be under the mistaken impression that source code receives more stringent copyright protection than other works of literature.

                You do understand that source code is not literature?

                Hmm... There is no possible retort to this, as you have pointedly failed to provide logic explaining why [Windows source code for commentary] would have different copyright protection than [The Hunt For Red October (novel) for commentary], [Avengers: Endgame for commentary (movie)], or [Yellow Submarine (audio record

                • Hmm... There is no possible retort to this, as you have pointedly failed to provide logic explaining why

                  Only common sense and if you did the slightest bit of research.. Literature is not source code. Works like literature that is intended to be published whereas source code is not necessarily meant to be published. An artist releasing a finished book does not mean that you can have rights to all of the notes, manuscripts, and drafts of that book. In general, fair use of source code is limited [cmsimpact.org]:

                  Fair use applies to the preservation of source code, and to making it available for research use, subject to the limitations below: . . . In most cases, source code should not be made available to the general public online, and access should be treated similarly to requests for unpublished manuscripts.

                  Sure. Distributing the entire source of the code would be a copyright violation. But this is a sideshow, since the subject of this post is already protected by fair use as discussed elsewhere in this thread.

                  No your argument is circular. It is Fair Use because it must be Fair Use is your argument. Any unauthorized distribu

        • Also, even if it weren't deemed fair use, the fact that the code has already been made available by the copyright holder to the public for free makes any claim of damages from sharing these short excerpts patently ridiculous. It saves readers the trouble of downloading the extension for themselves and locating the referenced section of code, nothing more.

          Copyright is not diminished by the availability of the source material.

  • Name their product "Proctorio"?

    A product offering perhaps unwelcome scrutiny of college students?

    The jokes write themselves.

  • "switched networks" so no hot spots and must be on line 24/7?
    Will the school give an place to come in and use there network??

    • Switched networks meaning switched subnets. Yes cellular hot spots are suggested as "not to use" for this reason.

      Most remote proctoring software requires the test takers to:
      Be in a seated location (not a couch, but like a dinning room table).
      You cannot leave that location for the duration of the assessment.
      You swing the camera around the room to make sure no one else is around.
      Monitors your tabs and keystrokes (so you are not Alt+Tab to Wikipedia or online website)
      Other things.

      You don't have to be online 2

      • a sh**ty piece of big brother-ware that watches you and can be shut down by unplugging your camera and having a 2nd machine to look answers up on.
  • by UnknownSoldier ( 67820 ) on Thursday November 05, 2020 @08:55PM (#60689874)

    Oh, software that spies on students during tests.

    Gee, you think that might be an invasion of privacy? /s

    • by AmiMoJo ( 196126 )

      Privacy isn't the issue, most people accept that when they take an exam it will be under conditions where they are watched. The issue is that the cheat detection is complete crap and could easily make mistakes.

      For example switching networks happens a lot if you are on mobile. Mobile broadband is a thing now. Even on DSL or fibre your IP address can change without warning, either externally or because your PC's DHCP lease expired and the router decided to give it a different one. Wifi drops in and out, espec

      • Yes, False Positives is the other (huge) issue.

      • I often do that because clearing my field of view of the work or the person I'm talking to reduces the cognitive load and I can focus more easily.

        You learning to keep your eyes on your paper seems like a small price to pay to thwart cheating on university exams. There are thousands of rules like this we all deal with everyday for the good of a civilized society. We don't throw out the rules because they slightly inconvenience a few people that refuse to adjust.

    • Gee, you think that might be an invasion of privacy? /s

      Yeah I guess, if you consider the bubbles you fill in on a test, that is being proctored by someone else, who you've paid to do so, as private data.

      Seems like a stretch.

  • Proctario is useless in CS courses
  • Fair use tweets (Score:3, Insightful)

    by Betelgeuse Resurgent ( 6838134 ) on Thursday November 05, 2020 @09:16PM (#60689942)

    A takedown from pastebin is reasonable, but the size limitation on tweets essentially ensures extracts are appropriate fair use for criticism. Indeed "violated Proctorio's exclusive rights by copying and posting extracts from Proctorio's software code on his Twitter account" sounds like the definition of fair use.

    • It's not necessarily reasonable. It would depend on what the patebin included, was it the whole source code or only pieces, was it critical to his commentary, etc.

      Even posting the entire source code could be fair use under the criticism and commentary defense. Never ever assume like you did, you simply don't have the information necessary to make the decision you did.

    • by Cederic ( 9623 )

      the size limitation on tweets essentially ensures extracts are appropriate fair use for criticism

      If he made a single twitter post citing one portion of the code and critiqued it, then I'd agree.

      He made multiple twitter posts. Anything can be segmented into 280 character blocks, so he could potentially have reposted the entirety of the deployed code, with or without commentary. That's harder to demonstrate as fair use.

      I don't know whether he was infringing copyright law or not but being constrained by the size of a single twitter post just isn't really relevant.

  • by organgtool ( 966989 ) on Thursday November 05, 2020 @11:13PM (#60690274)
    Given that the student never attempted to monetize the code and the fact that it is easily obtainable through the Chrome extension that Procturio itself submitted for distribution, this seems like it should be covered by fair use. At the very least, linking to the material in the tweet should be covered and if the distribution of the source code really is infringing, then it should be taken down by Pastebin.

    On a semi-related side note, it drives me crazy that software source code effectively gets the protection of copyright and trade secret at the same time. The social contract of copyright is that the protected work will become public domain once the copyright period has expired but that can never happen if the source code was never distributed in the first place. This seems like a consequence of the fact that the software industry didn't exist during the time of the Berne Convention and source code, unlike almost every other work protected by copyright, is not always released. I think an exception or addendum should be made to copyright laws that if you refuse to ever release or distribute a single copy of the work, it is not eligible for copyright protection (although it could be eligible as a work protected by trade secret). At the very least, the source code and all associated multimedia artwork, should be required to be submitted to a government agency where it could be stored on secured servers until the copyright has expired and then it would be made available to the public. It only seems fair, which is why it will probably never happen.
    • by Cederic ( 9623 )

      The social contract of copyright is that the protected work will become public domain once the copyright period has expired but that can never happen if the source code was never distributed in the first place.

      You appear to be expecting the public release of any and all creative works, irrespective of their purpose or the privacy of their creators.

      The first 18 drafts of my book are protected by copyright. Nobody's ever going to see them. They'll be destroyed a few weeks after I die and disappear forever.

      The same applies to the software I wrote and deployed on my watch. It does something for me, and nobody else, and I chose not to share it. The source code has copyright protection and you can't have it, will never

      • Those first 18 drafts of your book are protected by the fact that you haven't shared them with anyone else. That makes them trade secrets, whether you think of them as such or not. Copyright is irrelevant since only you are in a position to make copies.

        Copyright is only relevant for published works. You don't have to publish at all, obviously—no one is making you share anything you don't wish to—but under the GP's proposal if you did publish without submitting the work for distribution in an ope

        • by Cederic ( 9623 )

          Copyright is only relevant for published works

          I'm not sure that's the case. You don't publish a personal letter but it still falls under copyright legislation. Illicitly acquired draft manuscripts are still illegal to replicate and publish.

          Those first 18 drafts of your book are protected by the fact that you haven't shared them with anyone else. That makes them trade secrets, whether you think of them as such or not. Copyright is irrelevant since only you are in a position to make copies.

          The person to whom I was responding was expressing disgruntlement that software code benefits from both copyright and trade secrecy, but that society doesn't enjoy the eventual access to that code as it hasn't been published.

          My point was that this is hardly unique to code, and nobody is obliged to share their creativ

          • You don't publish a personal letter but it still falls under copyright legislation.

            Yes, the proposal was to change copyright legislation so that it wouldn't cover such things. The personal letter would simply be a secret shared by the sender and recipient. If the sender wanted to legally restrict the recipient from making it public it then they would need an NDA. I suspect most wouldn't bother for mere personal letters, but NDAs would need to be signed before sharing drafts with publishers or in other situations where there is a strong interest in maintaining the trade secret.

            My point was that this is hardly unique to code ...

            The part tha

    • I think you're confusing the purpose of copyrights with the purpose of patents. This is common.

      Trade secrets and copyrights are not at all mutually exclusive. The purpose of a copyright is not to facilitate dissemination of information or art, but to establish ownership rights. The purpose of a patent is to facilitate dissemination of information in return for a legal monopoly on use. Patents and trade secrets are complimentary while copyright and trade secrets are overlapping.

      Often people confuse "fair use

  • Can I file a notice on their behalf?
    It appears the Chrome store has their code available for free download to anyone who wants it. Better get that taken down.

    • Or, ...., you could actually read the article.
    • by Cederic ( 9623 )

      I'm not sure you can accurately describe yourself as authorised to act on behalf of the copyright holder.

      They on the other hand can provide ample evidence to the Chrome store that they are sharing their code with the permission of the creator, and that they have been authorised to distribute it.

    • Can I file a notice on their behalf? It appears the Chrome store has their code available for free download to anyone who wants it. Better get that taken down.

      A DMCA take down notice requires that you state that you believe to be the copyright holder, or that you are hired by the copyright holder to act on their behalf. Doing that when it's not true is perjury. Jail time. Go ahead.

  • Everyone who really wants to cheat has an earpiece in, someone looking at the screen through a cam and feeding them results.

    Just do it on a honour system.

  • by tlhIngan ( 30335 ) <slashdot@worf.ERDOSnet minus math_god> on Friday November 06, 2020 @04:43AM (#60690700)

    They've sued a professor who analyzed what Proctorio did as well, and linked to training videos of the software (since taken down).

    https://vancouversun.com/news/... [vancouversun.com]

    https://vancouversun.com/news/... [vancouversun.com]

    Of course, Proctorio's excuse is the lame "we can't let people know how our software works or they'll work around it".

    If those links are paywalled, an alternative is https://www.ubyssey.ca/news/pr... [ubyssey.ca]

    It's pretty nasty stuff going by all the petitions and such I ran into just trying to search for the articles. I think UBC is probably one of the bigger newsmakers in this regard because a professor was so offended by the callous use of the spyware as a solution without taking time to study the impact. Yes it makes sense during the exam, but that doesn't mean you shouldn't question it and the data collection it does as well.

  • In theory it should be possible to write a plugin (or an app running outside the browser) that redirects the camera and everything else and generates fake data for the monitoring plugin, and of course obfuscates its own existence.

    Done properly (rootkit style) it cannot be discovered and renders the monitoring software worthless. Would be worth developing just for this. Such invasive monitoring deserves a countermove.

  • >"Proctorio, based in Scottsdale, Arizona, says its proctoring software is privacy friendly. Students are required to install its Chrome extension"

    They lost the privacy claim the moment they required Chrome, even before you deal with their extension.

    Oh, and welcome to the newly emerging "IE-only" world.

  • Is this what I think it is? Hint: I know what a proctologist does.
    • At first I thought the same thing too but apparently it is:

      Proctoring, verb, to watch people taking an exam in order to check that they do not cheat:

      Basically spying on them with technology -- and we all know software never has False Positive. /s

      /Oblg. Who proctors the proctologists? Is that one crappy job? /s

  • If you want to build trust behind e-proctoring software, submitting DMCA's is the wrong way to go. Even if the company isn't doing anything that would raise eyebrows, by forcing the removal of a persons comments and code inspection you give people a large reason to doubt the innocence of the platform.

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