Bring Me The Head Of That Threatening Lawyer!

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81 Responses

  1. Dan Weber says:

    A&P has a pretty good reputation. I have close friends working there. My friends seem to not be in the immediate blast radius of this case, fortunately.

    I'm hoping that the client lied their ass of to their lawyers, but that's just chauvinism on my part.

  2. Dan says:

    Remember the adage that you shouldn't say anything to anyone that you wouldn't want your mother to hear? I write my share of nastygrams, and I often wonder how the letter would read to Ken@Popehat and my fellow readership, then govern myself accordingly.

  3. Anonymouse says:

    Though, the copyright/plagiarism screed at the end does make him sounds a little douchey.

  4. Bratislava says:

    No doubt, this is all merely a slight miscommunication, a simple misunderstanding, don't you know?

  5. perlhaqr says:

    Oooh! Oooh! I'm going with the "prat" option.

  6. a_random_guy says:

    In another comment thread a lawyer said that, for simple C&D letters, lawyers rarely do any sort of independent research; they just take their client's word for it.

    I can understand that. The client just wants a letter on legal letterhead, and doesn't want to invest thousands of dollars to get it. On the other hand, as this situation shows, failure to do a bit of independent research can turn out rather badly.

    What are the thoughts of the Popehat lawyer crowd?

  7. Kirk says:

    This requires full throated Streisand Effect. It is incumbent upon all of us to make this happen.

  8. Kevin says:

    @Anonymouse Indeed. Allow me to quote him:

    Included in the plagiarizing prohibition is (1) paraphrase plagiarism, which is when you copy sentences and phrases but make minor word changes to mask your theft, and (2) idea plagiarism, which is when you present an idea as your own when in fact you found it here. Also, I have lost my patience with people claiming that Fair Use allows them to bypass my copyright, so don’t even think about it.

    That's ummm… not correct. And pretty silly. Now don't get me wrong, I'm certainly not siding with the 800 pound gorilla here – obviously threatening someone with massive, extortionate legal action, and implicitly threatening to file a false police report about a fictional "threat", over content that he himself wrote, is obviously massively MORE douchey than simply overstating one's IP rights. And the plagiarism in question here would appear to be straight, literal plagiarism, not the imaginary "idea plagiarism" or "paraphrase plagiarism" that Purrington seems to believe are a thing. So it's pretty clear that the Consortium and their lawyers are the far greater of two evils here….. I'm just sayin'… sometimes karma is a bitch.

  9. Deadly Laigrek says:

    I love how their ABSOLUTE FIRST reaction to someone saying, "Hey man, you plagiarized my work" is to hire a lawyer and go, "NO, you plagiarized OUR work!" as opposed to just going, "Oh, our bad, man, we'll just go ahead and change it/credit you."

    Somehow, doing that second thing instead of the first thing has always managed to work out more or less in my favour. Funny, innit?

  10. Andy (not Andy) says:

    @Deadly: And that's kind of dumb, he had already pretty much let it out. If they had just credited him, I think he would have said 'OK, all good!' and that would have been the end.

  11. Nate says:

    Looks like some people didn't take their responsible conduct of research (RCR) training seriously.

  12. earthclanbootstrap says:

    Now I have to wonder, will AF Holdings LLC try to copyright
    "Govern yourself accordingly" ?

  13. Dan Weber says:

    Clever question someone had:

    By demanding $150,000, has the Consortium agreed that this is a fair value for someone stealing the work?

  14. Nate says:

    @Kevin: Well to be fair, "idea plagiarism" is a very real thing in the science world, especially in grant writing. Grants are peer-reviewed by someone in the field. It sometimes occurs that someone takes an idea that they read while reviewing a grant, then presents as their own in a similar grant, sometimes with the same or similar experiments. This is academic dishonesty, not acceptable, and often considered grounds for sanctions if caught. However, you are right, he seems to have forgotten that as soon as you make your idea public, via a poster, a talk, or the internet, all those protections go out the window.

  15. Bryan says:

    @Kevin

    Ummm… actually, you're not correct. Both of these are very real forms of plagiarism, as cited by the 5th edition of The Everyday Writer (a textbook used within the composition class I teach) and various resources. here's a link to a Harvard College Writing Program page that defines these forms of plagiarism and more: Harvard College Writing Program

  16. Michael says:

    @Kevin: Paraphrase plagiarism is absolutely a real thing. It just isn't copyright infringement, because copyright protects expressions of ideas, not the ideas themselves. If the paraphrasing is minimal, such that the plagiarized version is substantially a copy of the original (as appears to be the case here), then it is copyright infringement as well.

  17. anne mouse says:

    Kevin, you (and it seems Mr Purrington) are conflating copyright violations and plagiarism. They are two different sins, prohibited by different authorities. ( Academic plagiarism is a criminal offense in many jurisdictions, though rarely enforced. )
    His last sentence (re fair use) is, to put it charitably, over-broad: the whole point of fair use is to bypass someone's copyright – if the use is in fact a fair one. Whether or not Purrington finds that exasperating is irrelevant. But perhaps he is merely exasperated by a succession of utterly wrong and transparently self-serving attempts to claim fair use when the use is obviously not fair.
    His concept of "paraphrase plagiarism", viewed from the standpoint of copyright law, is basically correct. An imperfect or disguised copy is still a copy. A close paraphrase would not extinguish copyright, which extends (weakly, see next paragraph) beyond individual word choices into structure and organization at whatever levels an author has freedom to choose his sequence and form of expression: paragraphs, chapters, etc. Even a considerable rewrite would be a problem, since it would qualify as a derivative work. (In practice this is somewhat academic, as a really thorough rewrite would not give the original author any hint that his work was the original source.)
    "Idea plagiarism" is the greater sin in the academic notion of plagiarism, but it has no existence in the theory of copyright law. On the contrary, copyright protects "expression" but not ideas. Where there is only one or very few ways of expressing an idea, copyright cannot be enforced. Thus an article would not be infringing merely because it had sections titled "what sections to include in your poster" and "printing your poster", even if these phrases were admitted to be copied from Purrington's work. To some extent then, you *can* escape copyright law by heavy editing – you can copy only the uncopyrightable parts. You'd better be *very* confident in your understanding of copyright law, though, as the original author will not be happy, and neither will the jury.
    In practice, the protection of derivative works is very hard to distinguish from the protection of ideas. Why does hollywood pay for movie rights to books? Usually, not a single sentence from the book makes it into the film. What is the copyrightable expression that is being copied? Book titles and names of characters are not copyrightable, nor are general storylines (boy bitten by spider, boy meets girl…)
    But back to "idea plagiarism" as applied to written advice for making academic posters: Copyright law will not punish you for repeating ideas first written down by others. Academic institutions (and some criminal statutes) will, unless you credit the original author. Note that the notion of credit is largely absent from US copyright law (which differs from the law of several other nations in this respect).

  18. Julie says:

    Has no one noticed that "Colin Purrington" is probably the best cat name ever?

  19. Kevin says:

    @Nate

    Well to be fair, "idea plagiarism" is a very real thing in the science world

    And I agree that it SHOULD be a thing – in the science world, just not in the world of copyright law. The appropriate remedy is academic sanction and professional disgrace, not government intervention.

    @Michael: Yes, I'm aware that certain insufficiently creative forms of paraphrasing can rise to the level of copyright infringement, but Purrington doesn't seem to understand any nuance here – he's basically saying that there's no such thing as fair use. The distinction isn't really relevant to this particular instance though, since the plagiarism in question doesn't seem to be "paraphrase plagiarism", but rather "legitimate plagiarism"…. and you know, the academic community has ways of shutting that down.

  20. Thank you, Ken, for posting! And thanks to all the posters who have left suggestions for me about copyright vs plagiarism — guilty as charged. Thanks in advance, also, to all those who might support my application to be the next CEO of CPBR (details on my site).

  21. Pat says:

    If you feel compelled to scrawl "Proprietary & Confidential – Not for Public Release" across the top of your C&D letter sent to a third party, then you have demonstrated per se the asshattery of you, your conduct, and the contents of your message.

  22. Malc says:

    One of the interesting things here is that, since CPBR is a non-profit, it is quite likely that they had interns / secondees at some stage, who may well have been the ones who copied the document in question, leving CPBR themselves ignorant of the infringement, and therefore the claims that Purrington infringed are based on their (incorrect) honest beliefs.

    Anyway, just sent this to the CPRB:

    Dear Dr Schumacher,

    I have today contacted my Congresswoman, Ms Pelosi, and my Senators (Feinstein and Boxer), asking them whether, in this era of extreme fiscal restriction, the US Government should be proving funding to organizations that pay heavy fees to Arnold & Porter for the purpose of trying to justify a (possibly accidental) misappropriation of another individual's intellectual property (to whit: Mr. Purrington's guide to scientific posters, first published _on the internet_ in 2001).

    Even had the question of copyright infringement been less clear than it is (and it is clear: you infringe), the attempted legal thuggery is not, in my view as a taxpayer, an appropriate use of research funding. To be clear, a polite letter disagreeing with the assertion of infringement, and a polite follow-up, would (in my view) been perfectly reasonable. But that is not what your lawyer did, and I see no reason why the United State's taxpayer should subsidize bad or even merely impolite and intemperate behavior such as that by your Consortium and its agent.

  23. Kevin says:

    @anne mouse

    Kevin, you (and it seems Mr Purrington) are conflating copyright violations and plagiarism

    I agree that they're getting conflated, but I would argue that it was Mr Purrington who conflated them, and I'm trying to un-conflate them. [There's a word for "un-conflate", isn't there? I'm blanking on it atm]

    I agree with the rest of your analysis.

  24. David Aubke says:

    Are you doing your part?

    What's our part?

    Just like the call-to-arms in "A Cat May Look At A King…", I'm left wondering what we should be doing?

  25. different Jess says:

    There's a word for "un-conflate", isn't there?

    "Deflate"?

  26. David says:

    I'm unsure why anyone writing a serious letter asking someone to cease and desist plagiarizing his or her work would end it with a joke, obvious or otherwise. Colin's coda seems not only poorly written, but ill-conceived as well.

    On the other hand, the only thing he 'threatened' to do was to 'be grateful,' so A & P's reaction to it seems a little overblown.

  27. Owen says:

    I wonder if I'm the only one who would be tempted to respond, "To the extent that any of CPBR's staff interpreted that comment as a legitimate threat, I would be grateful if you would send met their head."

  28. Brett Middleton says:

    I love how their ABSOLUTE FIRST reaction to someone saying, "Hey man, you plagiarized my work" is to hire a lawyer and go, "NO, you plagiarized OUR work!"
    The thing is, though, that CPBR might actually believe that to be the case and is just horrified that some jerk would copy their work and then accuse them of plagiarism. I doubt they could name the specific individual who prepared that appendix, and I would not be surprised if they handed a minor job like that to some intern or postdoc who moved on years ago. Maybe the intern went to Swarthmore, had an old photocopy of Purrington's original tips in his desk because he found them useful, and didn't think twice about copying from it. ("Hey, Mary Jo, you make great posters! Write up some tips on how you do it and we'll add it as an appendix to our guidelines.")

    There is a "1997-2012" copyright date embedded within Purrington's current guide, but the notice at the top of the document contains only a copyright symbol and there is no notice at the very foot of the document. Anyone doing a quick check to compare copyright dates would not see them in either of the places where an average reader would look for them. If someone at CPBR did such a quick check before lawyering up, then I would say the problem is partially of Purrington's own making.

  29. princessartemis says:

    There's a word for "un-conflate", isn't there?

    "Deflate"?

    Disflate the conflation?

  30. anne mouse says:

    Weber, it wouldn't be binding in a future case. It's how much they were willing to accept in this particular case at this particular time. In the alternate universe where they actually have a valid copyright, they're free to pick a different number later with regard to a different defendant (or even the same defendant if he rejects this offer). Courts like to encourage parties to work things out between themselves without trial, and so it's generally not permissible to even mention pre-trial negotiations, even to point out an inconsitency. For example, the Consortium could request an injunction, claiming that no amount of money damages would make them whole, and you still couldn't mention this money offer. FRE 408.
    (The rule has some exceptions, of course. Get a lawyer if you need advice in a particular case. If you're planning your litigation strategy based on blog comments, you're an idiot.)
    Interestingly, the rule talks about "the claim", which I think means the particular claim between two particular parties. A different defendant in a later case might be allowed to introduce this evidence, I don't know.

  31. Kirk says:

    Brett,

    You have a point, but, before sending legally threatening letters involving 6 figures, one might want to be sure one is right. Anyone who's ever been embarrased at the end of an extended argument by proof of their idiocy (see Facebook argument of any kind) understands how important this is.

  32. A-Not-A-Moose says:

    "There's a word for "un-conflate", isn't there?
    "Deflate"?"

    Wouldn't the opposite of conflate be proflate?

  33. Kevin says:

    OK, so I actually resorted to googling the question, and it seems the accepted antonyms of "conflate" would be either "differentiate" or "discriminate"… both of which make sense, but in the original context it would be less than clear that they were intended as antonyms of "conflate". English sucks sometimes.

  34. anne mouse says:

    Kevin,

    "distinguish" or "separate" would work, no?

    Loved your line about "shutting that down".

  35. princessartemis says:

    If you want to make up a more satisfying antonym, you can use this chart: http://www.prefixsuffix.com/rootchart.php Then start using it until it gets accepted. That's how we have inflate, deflate, reflate, and conflate in the first place.

  36. xbradtc says:

    "Clarify" as in butter.

  37. AlphaCentauri says:

    It would be interesting to run the rest of the grant applications through TurnItIn to if there are other sections that borrow from other sources without attribution.

  38. Nate says:

    @Kevin: Gotcha, guess I missed that you were only referring to copyright law, not to the general concept. Can we agree though, that if the granting agency is a department of the government, the government will probably have to be involved in that, if the plagiarism is proven true, they will cease the funding of the grant in question, possibly review other grants and be more critical of future grants from the same person or company? (Pure semantics, but still kinda matters.)

  39. busyba says:

    Hopefully, Arnold & Porter will meet the same fate as Prenda Law.

  40. Kevin says:

    @Nate: Sure, that sounds reasonable.

  41. Scote says:

    I hope Purrington wins this as he seems clearly in the right on this particular issue. However, and this is a big however, Purrington is no IP angel.

    Retraction watch is covering this kerfuffle and cites Purrington's copyright notice:

    "Contents copyright Colin Purrington (1997-2013). Plagiarizing, adapting, and hosting elsewhere prohibited. Included in the plagiarizing prohibition is (1) paraphrase plagiarism, which is when you copy sentences and phrases but make minor word changes to mask your theft, and (2) idea plagiarism, which is when you present an idea as your own when in fact you found it here. Also, I have lost my patience with people claiming that Fair Use allows them to bypass my copyright, so don’t even think about it."

    He claims that copyright covers facts, ideas and attribution, and he categorically dismisses fair use. :-p

    I think he confuses the standard for grading papers for original content with *copyright*.

  42. vb_techie says:

    So, how long before Arnold & Porter send Popehat a nastygram for blatently ignoring their stern warning that the letter is "CPBR Proprietary & Confidential – Not For Public Release"? Will that generate another $150,000 threat?

  43. Dan Weber says:

    busyba, there is 0% chance that this takes down A&P. A&P is one of the most well-known law firms. Not a Cravath or a Skadden, but any lawyer in DC knows who they are. They are not some fly-by-night operation.

    (As I said before, I'm biased.)

  44. Scote says:

    "busyba, there is 0% chance that this takes down A&P. A&P is one of the most well-known law firms. Not a Cravath or a Skadden, but any lawyer in DC knows who they are. They are not some fly-by-night operation."

    Whereas Prenda arguably is, and they had to practically beg the courts to sanction them for misconduct before anything happened, and that only because of Herculean efforts by defense council and one judge who decided not to give their BS a pass.

    IIRC, at least one judge didn't give a rat's butt when advised that Alan Cooper denied any association at all, let alone being CEO of the alleged client of Prenda Law. One quotidian nasty gram by A&P won't cause so much as a ripple in the law firm's operation.

  45. Tim Cushing says:

    "The Shameless Prats" — one of the best skiffle groups to ever call England home. Shame they were tossed aside so quickly (and so easily) once the British Invasion began. I believe the fourth member of Blur whose name no one ever remembers, owns all of their 45's and positively WILL NOT shut up about them, if only anyone would listen.

  46. naught_for_naught says:

    > busyba

    Hopefully, Arnold & Porter will meet the same fate as Prenda Law.

    Yeah, not even the same thing. If a law firm went out of business every time someone got their feelings hurt there wouldn't be any more law firms, and then where would we be?…hmm, so tell me a little more about your plan.

  47. As a Wikipedia administrator I can tell you that we get a lot of editors submitting material infringing copyright, and a lot of supposed copyright infringements that turn out to be other people copying us. We're always careful to investigate both possibilities before we go accusing anyone – if only these lawyers were so diligent.

    I also appreciate the comments here clarifying some of the errors of legal fact in Colin's description (e.g. being careful about the distinction between infringement and plagiarism, noting that fair use is always available and can in fact bypass one's copyright), and Colin's graceful admission of those errors.

  48. Scote says:

    "and Colin's graceful admission of those errors."

    Damn my eyes! There should be some sort of quiz to pass before commenting to insure folks, including myself, have read the thread.

    His admission is the only right thing to do, though I'm not sure it excuses making the overbroad claims in the first place.

  49. mcinsand says:

    Maybe I'm too sleepy in reading the comments, but the discussions about *flate, antonyms, and synonyms have me wondering. Do we have an etymologist in the house? If so, does the 'flate' in conflate have a common root to the word 'flatulence.' I could see where 'inflate' might, although deflate would be more appropriate.

  50. MattS says:

    mcinsand,

    Why would a bug expert have anything to say on word roots? ;-D

  51. Walt K says:

    @dan weber, pretty sure the $150K is just a reference to the max statutory damages amount for willful infringement.

  52. Narad says:

    It's a couple syllables too long and not really good Spanish, but a closer Peckinpah tribute might have been "Bring Me the Head of Amenazando Jurista."

  53. Narad says:

    If so, does the 'flate' in conflate have a common root to the word 'flatulence.'

    Yes, Latin 'flatus' is the (4th declension) noun and past participle of 'flare'. English 'blow' has the same Proto–Indo-European root, but it took the Germanic branch.

  54. Cat Purrrson says:

    Julie:

    Has no one noticed that "Colin Purrington" is probably the best cat name ever?

    The names of the last five cats we have owned:
    Illya Purrryakin
    Purrrfect Tommee
    Leto Purrrtreides (son of Meow'dDib)
    Purrrmione Grrranger
    Haru Purrrshioka

    Purrrington would make a splendid name for the next one.

  55. princessartemis says:

    mcinsand, I just like words a lot and read dictionaries for fun; I also bought myself a the Barnhart Concise Dictionary of Etymology for my birthday one year. To answer your question based on that book: yes, they are related via Latin flare, to blow.

  56. AlphaCentauri says:

    Wow, how did we get to flaring flatulence?

  57. anne mouse says:

    McInSand,

    Yes, "conflate", "inflate", "deflate", and "flatulence" are all from the same Latin root, "flare", meaning "to blow" (as in to exhale).
    "con-flate" means "blow together", the idea being you've mingled two things in a way that makes it impossible to properly separate them, like the smokes of two fires. You won't find it in an English dictionary, but the opposite would be "disflate" or "diflate", to blow apart.

    MattS: obligatory XKCD: http://xkcd.com/1012/

  58. Narad says:

    Purrrfect Tommee

    I hope you didn't have to do what they did to Lewis Smith's fur hair.

  59. E.B. says:

    This is the reason I read Popehat. Thanks for a well written story for my birthday :)

  60. mcinsand says:

    MattS: do you have spyware installed in my computer? Yes, I mistyped the word first to have an 'n' between the 'e' and the 't.'

  61. Merissa says:

    @Collin Purrington: Take it from someone else who has an off-color sense of humor: a lot of people aren't going to understand that it's humor, and it doesn't belong in business correspondence. Unless you were seriously asking for someone's severed head, in which case good for you.

  62. MattS says:

    mcinsand,

    Don't be silly, of course not, it was simply a good guess.

    P.S. You need to defrag your hard drive. :)

  63. David says:

    Re copyright infringement and plagiarism, they're two distinct concepts: the first legal, the second academic/ethical/moral. There is overlap, but they're sometimes confused. NOTHING IN THIS COMMENT SHOULD BE RELIED UPON AS LEGAL ADVICE AND IT MAY BE WRONG.

    To take an extreme example, say you copy someone's work entirely without permission BUT you cite them appropriately as the source. You've infringed copyright, you should get a mark of zero if it's an assignment, etc. but you haven't committed plagiarism because you clearly and honestly credited the source of the idea.

    On the other hand, say you pay someone to research and write your thesis for you on a work-for-hire basis and the person has also explicitly assigned you copyright and waived all moral rights etc. and you claim authorship and submit it. No copyright infringement, but you've committed the academic offense of plagiarism.

  64. Martijn says:

    As I read the letter by A&P, I have the feeling they have interpreted the situation as follows:
    a) Colin wrote a guide on designing conference posters,
    b) Someone at CPBR used that guide to write /another/ guide – maybe plagiarizing ideas, but not violating copyright,
    c) Colin copied /that/ guide to his website and complained to CPBR about the plagiarism.

    Basically: "Yeah, maybe we stole your ideas, but you stole /our/ implementation!"

    But maybe I'm just being naïve.

  65. Bob Brown says:

    I have to defend Dr. Purrington's "copyright/plagiarism screed." The thing about college teachers is that we write, and we write in an environment where using the words or ideas of another without proper acknowledgement (my working definition of plagiarism) can result in figurative, if not literal, heads on spikes.

    The other thing about us is that we write to be read. (That phrase comes from Dr. Peter Suber at Earlham College.) We offer our material on the web, free, in the hope that others will read it and learn from it. We're happy if one of our articles makes it into the first page of Google's results and delighted when we get the occasional "thank you" email. Putting material on the web doesn't usually generate "publish or perish" points, and it certainly doesn't generate any money.

    It shouldn't be surprising that some of us get annoyed, or even angry, when someone copies our work wholesale and takes credit for it themselves, an offense that happens far too frequently. That annoyance sometimes peeks through when we ask people not to copy our stuff, and perhaps that's what happened in this case.

    I teach computing, not law, but I can recite the tests for fair use. I've read Dr. Purrington's screed. He purports to prohibit plagiarism, and that prohibition follows a copyright notice, but he doesn't claim that copyright law prohibits plagiarism. His two-sentence rant on fair use could perhaps be tempered a bit, but I'll bet it comes from having people copy his entire work, verbatim, and reply "fair use" when he asks them to stop.

    The good news is that he has retained counsel. That likely means that his copyright notice will soon be punctiliously correct and probably that his work will be registered. I hope he can come out of this with a settlement that will cover his legal fees, at least. CPBR clearly owes him for misappropriation of his work.

  66. Trebuchet says:

    @Martijn:

    a) Colin wrote a guide on designing conference posters,
    b) Someone at CPBR used that guide to write /another/ guide – maybe plagiarizing ideas, but not violating copyright,

    If you read Dr. Purrington's post on the subject, you'll see that CPBR's guide has sections that are word for word identical to his. That's a clear violation.

  67. R says:

    Hello, would someone please enlighten me on how they came up with the "approximately 90-95% similarity" statistic? retrieved from http://colinpurrington.com/2013/cpbr-plagiarism I am very interested in anti plagiarism tools/software that would allow one to determine differences between 2 documents. Preferably things more advanced or specialized than adobe acrobat, microsoft word or powergrep tools. Anyone have a lead on this or things to search for?

  68. Bob Brown says:

    @R My guess: Turnitin.com.

  69. Martijn says:

    @Trebuchet: Yes, I know. What I was suggesting was that the letter by A&P could also be the result of a misunderstanding instead of malice. If A&P truely believed CPRB copied ideas but not text and the text was copied by Dr. Purrington, then their approach makes (more) sense.

  70. Narad says:

    would someone please enlighten me on how they [sic] came up with the "approximately 90-95% similarity" statistic?

    I doubt that Purrington bothered going to the trouble of computing cosine similarity for this estimate. Give a 2.5-page document, you can make a rough estimate by hand.

  71. DP says:

    I love the "Proprietary and Confidential-Not for Public Release".

  72. Eli Rabett says:

    Purdue's take down is going to sink CPBR

  73. Jack says:

    It astonishes me that no one — even the word self-described word buffs and the honest-to-gosh Wikipedia editor — correctly identified the correct term for reversing/correcting a mistaken conflation.

    The word is, of course, disambiguate.

  74. Random Bystander says:

    On April 11th, Colin Purrington took down all his blog posts about the CPBR because he was advised that "wounded, cornered animals sometimes do unpredictable things" https://twitter.com/colinpurrington/status/322698584065728514

    It's not clear if there were any actual consequences for CPBR, sadly.

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