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Google Subpoena Information – Gmail, AdSense, AdWords and More

We wrote to Google and asked what information was required to subpoena Gmail in order to determine the identity of an email customer. Google’s response is below:

Dear Ms. Pengelley:

The information requested relates to services offered by Google Inc., a U.S. company organized and operating in the U.S., and governed by U.S. laws. As such, we ask that your request be directed to Google Inc. – Attn: Legal Department, and communicated through the proper legal channel. Please direct further communications to Google Inc. – Attn: Legal Department – at 1600 Amphitheatre Parkway, Mountain View, California, 94043, US, Fax: + 1 650.469.0622, or by email at lis-global@google.com.

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It’s All About YouTube: How Social Media Can Make or Break Your Subrogated Action

We have all heard a story about some unfortunate personal injury lawyer who forgot to remind his client that ‘what happens in Vegas stays on YouTube’. Personal injury and family lawyers are becoming highly attuned to the crucial role that social media websites can play in civil litigation.

Yet when it comes to cases involving property damage, it appears that lawyers and other subrogation professionals have overlooked the potential utility of these sites in advancing their case. This post highlights some important ways in which YouTube can play a role in a subrogated claim for property damage.

1. A Search Engine for Video Evidence

YouTube is the second largest search engine in the world. As of March, 2010, twenty-four hours of video was being uploaded to YouTube every minute. To put this in perspective, consider that more video is uploaded to YouTube in 60 days than all three major news networks have created in 60 years. [1] What does this mean? If you have a property damage claim, stop for a minute and think about whether it was an event that was likely to warrant a second glance. Were there flames? An explosion? Did a massive wall of water sweep over the property, obliterating all before it? In that case, it is likely that someone not only had taken that second glance, but pulled out his or her cell phone, recorded a video clip, and posted it on YouTube. Check it out. Simply enter the loss date, location and a one-word description into YouTube’s search engine and you may discover valuable evidence that can provide crucial insights into the loss.

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Pulling the Plug on Cyberbullies: Should Schools be Responsible for Sticks and Stones Thrown in Cyberspace?

His name is Ghyslain Raza, but you may know of him as “Star Wars Kid”, a portly 15-year-old student at a Quebec private high school who had filmed himself wielding a mock light saber, pretending to be a Star Wars character in combat. The two-minute video was supposed to be private, but he left it lying around at his school where three students, who did not know the teenager, came across the video, posted it on the Internet on April 14, 2003, adding a message inviting people to make insulting remarks about the clip.

Unfortunately for him, it wasn’t just his friends who found the footage so amusing. The video went ‘viral’. One Web log that posted the video was allegedly downloaded 1.1 million times, and by October 2004 one Internet site dedicated to the video had recorded 76 million visits. According to UK marketing firm The Viral Factory, it became the most downloaded video of 2006. So mortified was the teenager that he dropped out of school and finished the semester at a psychiatric ward. According to the student, “It was simply unbearable, totally. It was impossible to attend class.” More than 35 other revised versions of the video clip, created by other people, have found their way to the Internet, with additional sound and visual effects.

This is an extreme but far from unique example of the devastation wrought by cyber-bullying, the term given to internet conduct in which students harass other students by e-mail and on the internet. Given the potentially devastating consequences of cyberbullying, should schools have the power to discipline their students engaging in this form of harmful conduct?

A major issue confronting school boards is that cyberbullying usually does not take place at school, although its effects can later reverberate among students during school hours. Students may post offensive material from home, or other times outside of school hours, but the targets are fellow classmates. Is it appropriate for a school board to discipline a student for posting such material simply because the postings are being accessed by other students at school or target other students? At the same time, with power comes responsibility – if school boards have the power to discipline students for their behavior outside of school, are schools then to be mandated with the responsibility to essentially monitor and censor the world-wide web? Just how far should a school board’s jurisdiction extend regarding inappropriate off-school student e-conduct?

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Two New Online Resources For IP Information: “WIPO GOLD” And USPTO

Within the last week, two separate intellectual property search engines were launched, each of which has the potential to significantly palliate searches for patents, trademarks and other IP. http://www.wipo.int/wipogold/en/

Specifically, on June 1, 2010, the World Intellectual Property Organization (“WIPO”) introduced a free online public resource, “WIPO GOLD” which aims to facilitate universal access to IP information. It promises “quick and easy access to a broad collection of searchable IP data and tools relating to, for example, technology, brands, domain names, designs, statistics, WIPO standards, IP classification systems and IP laws and treaties..” The site also includes a helpful translation option, should users wish to search results in a language other than the default, English. The news report can be viewed here: http://www.wipo.int/pressroom/en/articles/2010/article_0018.html

Meanwhile, the United States Patent and Trademark Office (USPTO) separately announced on June 2, 2010 that it has entered into a “no-cost, two-year agreement with Google to make bulk electronic patent and trademark public data available to the public in bulk form.” Under the agreement, USPTO will provide Google with “existing bulk, electronic files, which Google will host without modification for the public free of charge.” Examples of searchable items include: patent grants and applications; trademark applications and Trial and Appeal Board (TTAB) proceedings; and patent classification information. The USPTO and Google also will work together to make additional data available in the future, such as patent and trademark file histories and related data, the office said. The bulk data can be accessed at http://www.google.com/googlebooks/uspto.html.

In other words, as technology moves forward, so too does the ability to research and guard intellectual property ownership and interests… at least in the Western Hemisphere and other WIPO member countries. Now, if only the remainder of the world could come together to unify owners’ capabilities to globally protect their IP rights.

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Does the Internet Create Unfair Jury Trials?

Jurors are not supposed to look at media coverage of the case during a trial since their verdicts are supposed to based on the evidence presented in a trial, rather than media reports. But can they really resist taking a sneak peek on the Internet?

In February of 2010, the U.K.’s Ministry of Justice released a very interesting report, titled “Are Juries Fair?“, by Professor Cheryl Thomas. Among other things, the study examined jurors’ use of the Internet to look up information about their cases in both long, high profile cases and standard cases lasting less than two weeks, with little media coverage. The report found:

  • All jurors who looked for information about their case during the trial looked for it on the Internet, as opposed to television, newspapers or some other source. (Well, okay, so this one wasn’t exactly a big surprise…).
  • More jurors said they “saw” information on the Internet than admitted to “looking for it” on the Internet. Since they were doing something that a judge should have told them that they were not supposed to do, this may explain why jurors were more likely to say the saw reports on the Internet than said they looked for it. (See? Lawyers aren’t the only people in the courtroom who resort to semantics….). But just what are the figures?

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What’s in a Name? Domain Name Disputes for Dummies

Never underestimate the value of a good domain name! As any website owner will tell you, http://www.rose.com, by any other name, is likely to lose customers.

About a week ago, my colleague’s nephew, Kevin Bortnick, found himself in a domain name predicament. His plight is interesting and he has graciously permitted us to blog about his situation, which provides some useful context for a discussion about domain name disputes.

Kevin is a talented website developer who used the name “KBortnick” or “KB” for his internet business. In November of 2005, he registered the domain name kbortnick.com for a period of four years, at a cost of about $10 per year. Although the domain name expired in November, 2009, he explained that “I was moving out & had a bit of a money crunch, so I figured I’d renew it in about a month, because it really wasn’t worth anything & I figured it would be fine….”

A couple of weeks ago, he attempted to re-register the name, only to discover that someone else had purchased it. That unknown ‘someone’ had immediately put it up for sale on a website that auctions off domain names, http://seto.com, subject to a minimum bid of $480. As you can imagine, Kevin was livid. “The highest I’ve ever seen my domain name appraised at was about $30”, he exclaimed, “and most places didn’t even give it that!”

(I empathized with Kevin’s situation. Over Canadian Thanksgiving, while I was sitting before the computer in a state of turkey-induced lethargy, I was suddenly roused from my stupor by the discovery that the domain name “pamelapengelley.com” could be registered for the low, low price of just $10 a year. I may soon write a post that is entitled “How I learned the hard way that just because you can make a hideously tacky personal flash website dedicated to your glorious self doesn’t mean that you should make one.” But I digress…)

Kevin’s dilemma got me thinking – is this what is known as “cybersquatting”? Is there any remedy for this sort of thing? Does Kevin have any recourse?

In fact, there are a couple of different mechanisms for resolving a cybersquatting dispute, and my understanding of them was greatly assisted by some basic knowledge about the development of the Internet and some tech-related acronyms like “DNS”, “IP” and “ccTLD”. If these terms are unfamiliar to you, then I ask for your indulgence while I lay out some of the basic IT background. It’s a bit lengthy so if you are computer-savvy, you may just want to skip part 1. Read the rest of this entry »

Loss of Computer Data: Is it Property Damage?

j0236341Let us say, speaking hypothetically, that a grossly negligent individual (who, since we are speaking hypothetically, is named…”Mr. X”) has accidentally uninstalled my favorite computer game, “Sid Meyers Civilization IV” (for which, by the way, I paid good money and patiently waited three whole hypothetical hours to legally download onto my computer).

Let us further hypothesize that I was twelve hours into a very successful game which has now gone the way of the passenger pigeon. Is the loss of my computer software considered “damage to property” for the purpose of a negligence action, or is it just a form of pure economic loss? “Of course it’s property damage!” I thought to myself, “and a most egregious form at that!”

Yet, in law, as in life, few things are certain. I was compelled to learn more, and so I conducted a brief review of the case law from Canada, the United States and Australia to satisfy my curiosity. What I have learned is that, notwithstanding that we live in the age of the internet, it is far from clear whether we can sue for the loss of electronic data in a negligence action.

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File Sharing, Copyright and Fair Use: Here Are the Cases

cybercartoon

Only one thing is impossible for God: To find any sense in any copyright law on the plant- Mark Twain.

What Are the File Sharing Trials?

The file sharing trials are copyright infringement actions dealing with the distribution and downloading of digital music. The Recording Industry Association of America (RIAA) is the trade organization that supports and promotes the major music companies. Over the past few years, the RIAA has deployed investigators in cities across North America to track down individuals who pirate digital music, and has brought resulting lawsuits against music fans for sharing music over peer-to-peer networks.

For many people, these cases bring to mind the old saw “but for the grace of God, there go I.” Generally speaking, the RIAA has settled these lawsuits for relatively modest amounts. In a couple of cases, however, the defendants have opted instead to ‘roll the dice’ and go to trial. Under the U.S. Copyright Act, juries have discretion to award damages of anywhere between $750 and $150,000 per copyrighted work, but they are provided with little or no guidance in how damages are to be assessed. As a consequence, these file sharing trials have resulted in jury verdicts for shocking sums of money that would seem to dwarf any actual damages that have actually been suffered by the copyright holders. The fact that these damage awards may be grossly disproportionate to the harm actually incurred has generated constitutional concerns which will likely be tested in the courts in the near future. In particular, two cases have recently received a significant amount of media attention:

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Facebook Subpoena Information – Here It Is!

facebook_picSo you want to get production of documents from Facebook to assist you in your civil case. How do you go about it? We asked and Facebook answered.

Well, first off, you are going to need a court order (subpoena) to obtain the information. In the U.S., Facebook users’ data is protected by the Electronic Communications Privacy Act (“ECPA”). See 18 USC section 2701 et. seq. ECPA is a federal statute that prohibits Facebook from producing any “content” without notarized user consent or a Search Warrant. Facebook’s Law Enforcement Response Team has advised that, with regard to civil matters:

  • State Court Subpoenas must issue from a court within California or must be issued pursuant to the proper California court commission.
  • Federal Civil Subpoenas seeking the production of documents must issue from the court in the district where the production is to be made.

The subpoena should be sent to subpoena@facebook.com or faxed to 650-644-3229.

Facebook states that it requires a $150 processing fee per User ID. Checks can be made payable to Facebook, Inc. and can be sent to the attention of Facebook Security at 1601 S. California Ave., Palo Alto, CA, 94304, bearing the name and number of the case for which the fees are paid.

In addition to a valid subpoena, Facebook advises that as much of the following information as possible should be provided in order to expedite a request:

  • Your full contact information (name, physical address, phone and email)
  • Response date due (please allow 2-4 weeks for processing)
  • Full name of user(s)
  • Full URL to Facebook profile
  • School/networks
  • Birth date
  • Known email addresses
  • IM account ID
  • Phone numbers
  • Address
  • Period of activity (specific dates will more likely expedite your request)

It takes Facebook approximately 2-4 weeks to respond to questions from law enforcement agencies or legal representaives about the status of these requests. If Facebook is informed and has a good faith belief that the matter is an emergency regarding potential threat of serious bodily harm or threat to life (see Title 18 United States Code section 2702(b)), they generally respond within 24 hours.

Facebook advises that if you are not a member of a Law Enforcement Agency or Legal Department, you will have to contact Facebook through their Help Page or have your local law enforcement or legal representative contact them. Some other helpful Facebook links are as follows:

Facebook Help Page: http://www.facebook.com/help

Facebook Terms of Use: http://www.facebook.com/terms.php

Hacked/Phished Facebook Account: http://www.facebook.com/security

Facebook Safety: http://www.facebook.com/safety

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Where Does Internet Defamation Occur? An Interesting Jurisdictional Issue

j0439359The issue of defamation on the internet is an interesting one because, perhaps contrary to intuition, the tort of defamation is generally considered to occur in the location where defamatory material is accessed, rather than where it is published. Dow Jones & Company v. Gutnick, a 2002 decision of the High Court of Australia, was the first case to reach a final court that considered the nature of defamation on the Internet. Dow Jones, a US company, allegedly defamed an Australian businessman in an article on the Internet. Dow Jones argued that the suit should be heard in the US, not Australia, because that is where the article was uploaded. They argued that the Internet, being such a revolutionary development in communications, deserved a new legal response; that the High Court should develop a global theory of defamation liability. The High Court declined to do so, holding that long-established principles of Anglo-Australian defamation law were applicable to online defamation. Canada appears to have followed suit.

The consequence is that regardless of whether online defamatory material has been posted and hosted in the United States, case law developments with respect to internet defamation in foreign jurisdictions may be quite relevant in determining the liability of a U.S. resident for posting defamatory content.

For a good review of the Dow Jones case, see A Result Contrary to Intuition: Defamation on the Internet and the High Court of Australia.
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Hyperlink to Libel: Can You Be Held Liable?

click hereIn actions for libel and slander, “publication” refers to the communication of defamatory material to a third person. Does hyperlinking to a website containing defamatory material amount to publication of that material in the eyes of the law?

This was the issue that was recently considered by the B.C. Court of Appeal in the case of Crookes v. Newton, the first case at the appellate level in Canada to consider whether the creation of a hyperlink to a site that contains defamatory material can make the creator liable for the defamatory material. The plaintiff, Mr. Crookes, claimed that he was defamed in various articles that first appeared on the Internet in 2005. The defendant, Mr. Newton, put up a post on his website under the heading “Free Speech in Canada”, and inserted hyperlinks to webpages that contained the defamatory articles. Significantly, Mr. Newton did not reproduce any of the content from the articles, nor did he comment on them in any way. The relevant post excerpt (hyperlinks omitted) is as follows:

Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes. We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future.

When Mr. Crookes learned of the post, he asked Mr. Newton to remove the hyperlinks, but Mr. Newton refused. Mr. Crookes then sued Mr. Newton, taking the position that by creating the hyperlinks, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Newton brought a motion for summary judgment, arguing that that Mr. Crookes could not prove that the hyperlinks were brought to the attention of a third party and therefore “published”. Mr. Crookes was able to prove that Mr. Newton’s site had been accessed 1,788 times, but he could not prove whether any visitors to the site had ever clicked on the hyperlinks leading to the webpages containing the defamatory articles.

Mr. Crookes argued that there should be an automatic presumption of publication of the hyperlinked articles – such a presumption exists with respect to defamatory content in newspapers or broadcasts to the general public through the operation of ss. 2 and 12(2) of British Columbia’s Libel and Slander Act which provides:

s. 2. Defamatory words in a broadcast are deemed to be published and to constitute libel.

s. 12(2). The publication of a printed copy of a newspaper is proof, in the absence of evidence to the contrary, of the publication of the printed copy.

The Court refused to apply such a presumption, holding that since there is no such statutory provision in Canada providing for the presumed publication of communication distributed through the internet, it should be up to the Legislature, rather than the courts, to create such a presumption. Nor would the majority of the Court infer publication from the fact that Mr. Newton’s site had received 1,788 “hits”. Justice Saunders, speaking for the majority, noted that there was no evidence adduced with respect the volume of “hits” here compared to the norm, the usual behavior of internet readers or “surfers” or the jurisdiction in which they resided. As a result, there was insufficient information on which to infer that the hyperlinks had been accessed at all, let alone by Canadian viewers.

The court concluded that the mere fact that Mr. Newton hyperlinked the impugned sites did not make him a publisher of the material found at the hyperlinked sites. The Court referred to the 2005 case of Carter v. B.C. Federation of Foster Parents Assn., where it had held that a reference to a website in a printed newsletter, where there was no element of control by the defendant over that website, did not amount to publication of the defamatory material found at that site. In that case, a group of defendants had prepared a written newsletter which contained an internet address for an internet chat room which posted defamatory material, with the comment that “more news” could be found at that address. The Trial judge found that the reference in the written newsletter did not in the circumstances amount to publication by the Federation of the defamatory materials found at that site.

In this case, Mr. Newton advised that he saw the hyperlinks “as the equivalent of a footnote or biographical reference”, and the majority of the Court of Appeal agreed. The majority of the court found that there was no substantial difference between referring to a web address in a written article and a mere hyperlink; both required a decision on the part of the reader to access another website, and both required the reader to take a distinct action. Further, in this day of rapidly changing technology, the court was not persuaded that it would take any less effort to access a hyperlink than a web address in an article. Thus, according to the majority, if it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then this would not amount to publication. However, the footnote analogy is not a complete answer to the question. If a hyperlink served as an invitation or encouragement to view an impugned site, or in some way adopted a portion of its contents, the hyperlink could be defamatory. For example, a statement that “The truth about [Person X] is found here, where “here” is hyperlinked to defamatory content may be sufficient to constitute defamation. Thus, the issue of whether a hyperlink promulgates defamatory content will require a contextual, fact-specific analysis.

(Of course, therein lies the rub. The majority of the Court did not see encouragement in Mr. Newton’s post, likening the links to a footnote for a reader or card index in a library. The dissenting judge was of the view that the context of the post served as an inducement to readers to click on the hyperlink).

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FBI Warns that Hackers are Spear-Phishing for US Law Firms

Phishing” refers to the fraudulent process of attempting to acquire sensitive information such as usernames and credit card details by masquerading as a trustworthy entity by way of e-mail, instant messaging or some other electronic communication. The communciation will often directs users to enter details at a fake website that is almost identical to the legitimate one.

To illustrate, in a recent example of spear-phishing launched from a web server in China, CEOs received an email message purporting to be from a federal court stating that a subpoena was being directed to the CEO with a link to a web address ending in “uscourts.com”. More than 1,800 CEOs clicked on the link. Once the victims arrived at the bogus site, they were asked to view court documents by downloading a browser plug-in, which was actually malware used to gain access to the victim’s computer.

On November 17, 2009, the FBI issued a cyber advisory warning that hackers appear to be targeting law firms and public relations firms. Here’s a not-so-clever example:

Subject: Attn: Pamela Pengelley

Alexander JLO – Solicitors
11 Lanark Square
Glengall Bridge
London E14 9RE
United Kingdom.
TEL:+44 794 4145 981
Fax:+44 794 4416 262

Good day: Pamela,

This is a personal E-mail directed to you and I request that
it be treated as such.

I am Barrister Wilson Baker, a solicitor at law. I am the personal attorney/sole executor to the late Engr Gerald Pengelley herein after referred to as’my client’ who worked as an independent oil magnate in my country and who died in a plane crash with his immediate family in December 2003.

Since the death of my client, I have written several letters to the embassy with an intent to locate any of his extended relatives whom shall be claimants/beneficiaries of his abandoned personal estate and all such efforts have been to no avail.

More-so, I have received official letters in the last few weeks suggesting a likely proceeding for confiscation of his abandoned personal assets in line with existing laws by the bank in which my client deposited a notably high amount of money.

On this note i decided to search for a credible person and finding that you bear a similar last name, I was urged to contact you, that I may with your consent, present you to the “trustee” bank as my late client’s surviving family member so as to enable you put up a claim to the bank in that capacity as a next of kin of my client.

I find this possible for the fuller reasons that you bear a similar last name with my client making it a lot easier for you to put up a claim in that capacity.

I propose that 35% of the net sum will accrue to you at the conclusion of this deal in so far as I do not incure further expenses.

Therefore, to facilitate the immediate transfer of this funds, you need, first to contact me via my private email:(wilsonbaker3@yahoo.co.uk) for better confidentiality, signifying your interest and as soon as I obtain your confidence I will immediately appraise you with the complete details as well as fax you the documents, with which you are to proceed and i shall direct you on how to put up an application to the bank.

However, you will have to accent to an express agreement which I will forward to you in order to bind us in this transaction.

Upon the receipt of your reply,I will send you by fax or E-mail the next step to take.I will not fail to bring to your notice that this proposal is hitch-free and that you should not entertain any fears as the required arrangements have been made for the completion of this transfer.

Like I said, I require only a solemn confidentiality on this.

Best regards,
Wilson Baker Esq

A word to the wise – proceed with caution before clicking on a link in an e-mail, even if the message appears to be from a reliable source. Better to seek confirmation from your information systems resources than fall victim to a spear-phishing scam. For more information, check out Microsoft’s webpage, “How to Recognize Phishing Emails and Links”.

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Will Brazil’s Power Failure Prompt New Insurance Products?

On November 10, 2008, millions of people were left without electricity in two of Brazil’s biggest cities, São Paulo and Rio de Janeiro, as a result of a massive power failure. The outage also had a significant impact on telecommunications and the Internet routing system in a number of South American regions. According to CircleID Reporter, while Brazil took the largest hit, Paraguayan and Uruguayan networks also went out “as a result of the largest regional power outage to hit Brazil and its neighbors in several years.”

Power Lines

The losses arising from these types of outages can staggering. Recall in early July of 2008, when the network of Brazilian unit of Spanish telecom Telefónica (NYSE: TEF) was disrupted, leaving its 2.2mn Speedy broadband customers without internet access for about 36 hours in the state of São Paulo. According to Business News America, Zurich had said that it would set aside 24mn reais (US$15.2mn) for refunds to compensate for the service interruption.

Prompted by the internet losses, the Brazilian unit of Swiss insurer Zurich began offering a new civil liability insurance product in August of 2008 in the wake of a large-scale internet outage, reported the local financial daily Gazeta Mercantil. The product covers third-party damage and operational shutdowns resulting from service disruptions, according to the report.

According to Zurich Brasil’s financial insurance lines executive ,Vinicios Villela Jorge, “Many businesses were wanting to know whether the insurance market would make this type of product available so that they could require [clients] to get this policy when contracting their services.” It will be interesting to see whether new insurance products become available on the market as a result of this most recent network failure.

SOURCES: CircleID Reporter; BNAmericas







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