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March 31, 2020

Copyright Violation Redux: The Internet Archive's National Emergency Library


Posted by Victoria Strauss for Writer Beware®

The enormous digital archive that is the Internet Archive encompasses many different initiatives and projects. One of these is the Open Library Project, a huge repository of scanned print books available for borrowing in various digital formats.

Unlike a regular library, the IA does not purchase these books, but relies on donations to build the collection. Nor are permissions sought from copyright holders before creating the new digital editions. And although the IA claims that the project includes primarily 20th century books that are no longer widely available either physically or digitally, the collection in fact includes large numbers of 21st century books that are in-copyright and commercially available--and whose sales the Open Library's unpermissioned versions have the potential to harm.

Most professional writers' groups consider the Open Library to be not library lending, but massive copyright violation. Many have issued alerts and warnings (you can see SFWA's alert here), and many authors have contacted the IA with takedown requests (to which the IA was not always terrific at responding; you can see my account of my own frustrating experience here).

In the fall of 2018, a novel (and disputed) legal theory was created to justify the Open Library and similar initiatives, called Controlled Digital Lending (CDL). CDL's adherents present it as "a good faith interpretation of US copyright law for American libraries" seeking to conduct mass digitization projects, and invoke as support the "exhaustion" principle of the first sale doctrine (the idea that an authorized transfer of a copyrighted work "exhausts" a copyright holder's ability to subsequently control the use and distribution of  that copy; this is what allows used book sales, for example) and the fair use doctrine (a complex principle that permits the copying of a copyrighted work as long as the copying is limited and transformative). As long as the library restricts its lending in ways similar to restrictions on the lending of physical books (for instance, allowing only one user at a time to access each digital format), CDL holds that creating new digital editions of in-copyright books and lending them out is fair use, and copyright holders' permission isn't necessary.

Libraries in particular have embraced CDL. Publishers' and writers' groups...not so much, especially in light of a recent legal decision that rejected both the first sale doctrine and fair use as basis for re-selling digital content. Here's the Authors Guild:
CDL relies on an incorrect interpretation of copyright’s “fair use” doctrine to give legal cover to Open Library and potentially other CDL users’ outright piracy—scanning books without permission and lending those copies via the internet. By restricting access to one user at a time for each copy that the library owns, the proponents analogize scanning and creating digital copies to physically lending a legally purchased book. Although it sounds like an appealing argument, the CDL concept is based on a faulty legal argument that has already been rejected by the U.S. courts.

In Capitol Records v. ReDigi, the Second Circuit held that reselling a digital file without the copyright holder’s permission is not fair use because the resales competed with the legitimate copyright holder’s sales. It found that market harm was likely because the lower-priced resales were sold to the same customers who would have otherwise purchased new licenses. In this regard, the court emphasized a crucial distinction between resales of physical media and resales of digital content, noting that unlike physical copies, digital content does not deteriorate from use and thus directly substitutes new licensed digital copies.

The same rationale applies to the unauthorized resale or lending of ebooks. Allowing libraries to digitize and circulate copies made from physical books in their collection without authorization, when the same books are available or potentially available on the market, directly competes with the market for legitimate ebook licenses, ultimately usurping a valuable piece of the market from authors and copyright holders.
For a more detailed deconstruction of CDL's arguments, see this statement from the Association of American Publishers.

Flash forward to 2020, and the coronavirus pandemic crisis. Last week, the IA announced the debut of the National Emergency Library--really just the Open Library, but with some new provisions.
To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.
What this boils down to, under all the high-flying verbiage: the IA is ditching the one-user-at-a-time restriction that is one of the key justifications for the theory of controlled digital lending, and allowing unlimited numbers of users to access any digitized book in its collection.

The Authors Guild again, on how this harms authors:
IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.
Here's just one concrete example. Katherine Harbour's Nettle King is available for borrowing in the National Emergency Library as a scan, an EPUB, and a PDF (the IA's EPUB versions are OCR conversions full of errors). Published in 2016, it's also "in print" and available on Amazon and other online retailers as an ebook, in addition to other formats. The IA, which never bought a digital license to Ms. Harbour's book and scanned and uploaded it without permission, now is proposing to allow unlimited numbers of users to access it, potentially impacting her sales. How is this any different from a pirate site?

Announcement of the National Emergency Library has been greeted rapturously by the press and by libraries. Less regarded has been the flood of protest and criticism from authors and professional groups. In situations like these, authors and publishers tend to be dismissed as greedy money-grubbers who are putting profits ahead of the march of progress and the noble dream of universal access to content...despite the fact that authors' right to make money from their work--and, just as important, to control the use of it--springs directly from the US Constitution, and has been enshrined in law since 1790.

In response to the outcry over the National Emergency Library, the IA has issued a justification of it, citing the "tremendous and historic outage" of COVID-19-related library closures, with "books that tax-paying citizens have paid to access...sitting on shelves in closed libraries, inaccessible to them." This noble-sounding purpose conveniently ignores the fact that those libraries' (legally-acquired and paid-for) digital collections are still fully available.

If your book is included in the National Emergency Library, and you don't want it there, the IA will graciously allow you to opt out (another inversion of copyright, which is an opt-in system).


Hopefully they'll be more responsive than they were in 2018, when I sent them DMCA notices that they ignored. Or later, when they began rejecting writers' takedown requests by claiming that the IA "operates consistently with the Controlled Digital Lending protocol.”

******************

I've covered this question above, but I want to highlight it again, because it's such a persistent objection when this kind of infringement occurs: Brick-and-mortar libraries lend out books for free, so how are the IA's "library" projects any different?

A few reasons.

- Brick-and-mortar libraries buy the books they lend, a separate purchase for each format (hardcover, paperback, ebook, audiobook, etc.). The author gets a royalty on these purchases. The IA seeks donations, and lends those. Authors get nothing.

- Brick-and-mortar libraries lend only the books they purchase. They don't use those books to create new or additional, un-permissioned lending formats. That's exactly what the IA does. Moreover, one of its additional lending formats is riddled with OCR errors that make them a chore to read. Apart from permission issues, this is not how authors want their books to be represented to the public.

- People who advocate for looser copyright laws often paint copyright defenders as greedy or mercenary, as if defending copyright were only about money. It's worth remembering another important principle of copyright: control. Copyright gives authors not just the right to profit from their intellectual property, but to control its use. That, as much as or even more than money, is the principle the IA is violating with its library projects.

UPDATE: It appears that the IA--on its own initiative--is removing not just illegally-created digital editions in response to authors' takedown requests, but legally-created DAISY editions as well, even where authors don't ask for this (DAISY is a format for the visually impaired, and like Braille, is an exception in copyright law and is also permissioned in publishing contracts).


It did the same thing in 2018, even where the takedown requests specifically exempted DAISY editions. I don't know if the current removals reflect expediency or possibly are just a kind of FU to writers (and, indirectly, to disabled readers), but if you send a removal request to the IA, you might consider specifically asking them not to remove any editions for the blind and disabled (which, again, are legal for the IA to distribute).

UPDATE 4/2/20: The Authors Guild has issued a statement encouraging writers to demand that the Internet Archive remove their books from its National Emergency Library. The statement includes instructions on what to do, along with a sample DMCA notice in the proper legal form.

UPDATE 4/8/20: SFWA has issued a statement on the National Emergency Library, describing the legal theory of Controlled Digital Lending as "unproven and dubious". (A link to SFWA's DMCA notice generator is included.)
[U]sing the Coronavirus pandemic as an excuse, the Archive has created the “National Emergency Library” and removed virtually all controls from the digital copies so that they can be viewed and downloaded by an infinite number of readers. The uncontrolled distribution of copyrighted material is an additional blow to authors who are already facing long-term disruption of their income because of the pandemic. Uncontrolled Digital Lending lacks any legal argument or justification.
UPDATE 4/9/20: The Chairman of the US Senate Subcommittee on Intellectual Property, Thom Tillis, has sent a letter to the Internet Archive, pointing out the many voluntary initiatives by authors, publishers, and libraries to expand access to copyrighted materials, and expressing concern that this be done within the law. 
I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has the jurisdiction to amend.
The letter ends by punting "discussion" until "some point when the global pandemic is behind us." So, basically, carry on and maybe at some point we'll talk.

UPDATE 4/15/20: Internet Archive founder Brewster Kahle has responded to Sen. Tillis's letter, claiming that the National Library is needed because "the entire physical library system is offline and unavailable" (even though libaries' legally acquired digital collections are still fully available) and that "the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances" (there's no such language in the actual Fair Use statute).

Kahle also notes:
In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.
But this is hardly a compelling argument. Large numbers of these books are certainly still in copyright, and many are likely still "in print" and commercially available (in digital form as well as hardcopy). Just because a book was published more than ten years ago or prior to 2000 doesn't magically cause it to become so hard to find it must be digitized without permission in order to save it. "But they're older books" sidesteps, rather than addresses, the thorny copyright issues raised by the IA's unpermissioned scanning and digitizing.

This passage also tacitly confirms the IA's abandonment of the one-user-at-a-time restriction that is a key feature of the rationale for the Controlled Digital Lending theory. If the basis for your enterprise is a legal theory whose strictures can be jettisoned at will, how credible is that theory really?

Kahle also claims that "No books published in the last five years are in the National Emergency Library". As it happens, the example I provide above (Katherine Harbour's Nettle King) handily disproves this statement: it was published in 2016, and was digitized by the IA in 2018 (you can see the scan here). I seriously doubt it's the only instance. Either Kahle is being disingenuous, or he doesn't know his own collection.

As a sop to creators, Kahle reiterates that concerned authors "need only to send us an email" and their books will be removed. As I've pointed out above, this is yet another inversion of copyright law, which explicitly gives creators control over the use of their work. In other words, it's the IA, not authors, who should be the petitioners here.

UPDATE 4/16/20: This terrific, comprehensive article from the NWU's Edward Hasbrouck examines the multiple ways the Internet Archive is distributing the page images from its unpermissioned scanning of print books--"[o]nly one of [which] fits the Internet Archive’s and its supporters’ description of so-called Controlled Digital Lending (CDL)."

UPDATE 6/1/20: Four major publishers--Hachette, HarperCollins, John Wilen & Sons, and Penguin Random House--have filed suit against the Internet Archive over the Open Library and the National Emergency Library, alleging willful mass copyright violation. See my writeup here.

March 26, 2020

Space Kadet: The Twisted Tale of a Sad, Sad Internet Troll


Posted by Victoria Strauss for Writer Beware®

Scroll down for updates

A couple of weeks ago, my Twitter warning about an amateur literary agent received a fairly curmudgeonly response.


Mistaking it for a serious (if misguided) comment, I responded with a thread about why it's, well, bad for an agent to lie about their credentials. Which prompted this:

Ooookayyyy then.
After a couple more exchanges in a similar vein, plus a not-so-subtle threat (I do give this person credit for knowing the difference between slander and libel), "Dr. Mudgett" flounced.


Soon after, several alert individuals messaged me to let me know that "Dr. Mudgett" isn't just a rando with an inflated sense of self-worth and a profile named after an infamous American serial killer, but one of the sockpuppets of an astonishingly prolific Twitter troll possessed of awesome vitriol and seemingly unlimited free time to indulge it.


The troll's full name is Gary S. Kadet--and though I'd never heard of him before he decided to call me out, he is well known in the Twitter writing community as someone who, via large numbers of fake accounts (most of which have been suspended by Twitter), hijacks popular hashtags like #amquerying, #mswl, and #WritingCommunity to launch vicious unprovoked attacks against writing and publishing people of all kinds, especially new writers and literary agents. So copious is his output--we're talking daily, even hourly tweets--that sometimes he runs out of new insults and has to recycle them. (Sample, if you can stomach it, the stream-of-invective narrative of his Dr. Mudgett Twitter feed.)

I'm always interested in the bizarro side of writing and publishing, and Mr. Kadet certainly seemed to fit the bill. So I put out a call for contact.


I got a perfect flood of responses. I heard from agents and agency interns whom Mr. Kadet had targeted for insults, mockery, and general harassment--especially if they were women, and in some cases after they rejected one of his manuscripts (Mr. Kadet is a [currently] frustrated novelist). I heard from writers he'd savaged for nothing more than posting positive comments about something, or announcing a book sale, or just for talking about writing. Much of his trolling seems to be of the drive-by variety, but I also heard from writers for whom he has conceived a deeper grudge--some of whom he has been stalking and attacking for years, and not just with nasty tweets, either. Some of these individuals told me that he has doxxed them, and made public things about their personal lives they would have preferred not to share. One of his targets was forced to seek help from the police.

Several people have written about their encounters with him (prompting him, in at least one case, to send a laughably bogus cease-and-desist). More personal accounts of Kadet encounters are here. Also here. In fact, he's so famous--at least, as a troll--that he has inspired a parody Twitter account. I guess that's some form of validation, right?

Sockpuppet accounts Mr. Kadet has used in the past (all deleted or suspended): @JohnnyRacetrack, @JimboRockfordPI, @JacktheTrippe11, @JacktheTrippe12, @GaryKDarkLord, @GaryKadet, @RealGarySKadet, @CastleMurder,  @MudgettMania, @MudgettRedux, @FrugSigmund, @Joe_Nesmith. @JoeChristmas6, @ImmortalGSK.

Socks he's using currently (that I know of): @JackMcVea, @KatzProserpine, and @SureThingOscar. They regularly RT one another and also share tweets back and forth:




Mr. Kadet loathes a lot of people, but for one agent in particular, his hatred burns with a white-hot flame: Gina Paniettieri of Talcott Notch Literary Services. In 2018, Talcott Notch rejected one of Mr. Kadet's manuscripts, to which Mr. Kadet took extreme offense, and he has been targeting the agency and its agents ever since. In addition to a veritable tsunami of noxious tweets, promises to sue, accusations of violating his "IP confidentiality" (apparently because Gina revealed the rejected ms.), and bogus bad reviews wherever he can place them (not always successfully, since they are so demented that they get flagged), Gina tells me that he has called her home to harass her, and that he's currently demanding that she "settle" with him--i.e., pay him off--so that he'll stop.


Here's an interview with Talcott Notch agent Tia Mele about toxic writers in general and Mr. Kadet in particular.

So who is Gary S. Kadet IRL? There's not a great deal to be found on a websearch, but he did publish a novel in 2000 with Forge, and was apparently an editor with the Boston Book Review. He has lived in Cambridge, MA and Providence, R.I. Twitter isn't the only place where he has been accused of stalking.
Soon after my call for contact, Mr. Kadet's @KatzProserpine sock account DM'd me this:


Ooooh, scary! Not to be outdone by his alter ego, Mr. Kadet reached out to SFWA under his own name. Of course, he couldn't resist mentioning Talcott Notch. Also note the date: more than a week before I put this post online.


Mystery Writers of America, one of Writer Beware's supporters, received an identical "complaint" on the same date. Fortunately, both SFWA and MWA know how to handle trolls. 
 
So what's the bottom line here--other than the bigger issue of the toxicity that flourishes on social media and the inevitability of encountering it if you're active online? I guess it's really just the familiar advice: "Don't feed trolls". Starve the energy monster. The thing with trolls is that, for the most part, it's really not personal. They don't care about you; it's your reaction they need. They thrive on your distress, and draw strength from your response. Depriving them of these things may not shut them up--they can't really control themselves--but it is probably the single most frustrating thing you can do to them. 
 
So if you find yourself targeted by Mr. Kadet--or, indeed, if any random tweet of yours receives a nasty or belittling response from an account you've never heard of--the best possible comeback is simply to block the account and move on.

UPDATE: I learned this evening that Mr. Kadet today sent his "bad writer Strauss" message to Horror Writers Association, another of Writer Beware's supporters--and for good measure, sent it to MWA a second time. He has also weighed in in the comments here.

UPDATE 4/10/20: Sockpuppet account @KatzProserpine has reached out again on Twitter, alleging, as it often does, that Mr. Kadet has no Twitter presence...


...and claiming that it is not Mr. Kadet's sockpuppet account...


...while exhibiting Mr. Kadet's twin obsessions (Talcott Notch, nefarious "IP practices"--see Mr. Kadet's complaint about me, above).

UPDATE 6/17/20: This fascinating document provides "a list of publicly available sources about Gary Scott Kadet, organized as a timeline". Very comprehensive and detailed, with abundant links.

March 16, 2020

Writer Beware in the Time of Coronavirus

My home office, with feline assistant.
Posted by Victoria Strauss for Writer Beware®

I rarely make personal posts on this blog. But, as I don't need to remind anyone, these are scary times.

My husband and I are physically fit and in general good health, but we are both 64 and he has an underlying health condition. Based on everything we're seeing and reading, we've concluded that our best covid-19 strategy is either a) not to get sick, or b) to delay getting sick as long as possible in hopes of more treatment options or at least less hospital crush.

Our social distancing began last weekend. We've completely withdrawn from face-to-face social interaction, and are ordering non-perishables and household items online. No more routine doctor or dentist visits. No more stores, library, restaurants, or gym (we're in Massachusetts, where a lot of things are shut down anyway). I'm still on the fence about careful, non-peak hour grocery shopping for fresh produce--but I certainly won't be going while shelves are bare from people's absurd panic buying (some of the same people, probably, who are still having parties and crowding into bars *eyeroll*).

Sarah, my other assistant. Kittehs are a comfort.
We're acutely aware that this is MUCH easier for us than it is for most. We both already work from home. We have decent financial resources. We don't have kids. Elderly relatives are all dead. Family and many friends are geographically distant, so we're already socially distanced there. We can still go out for walks and runs. I can still garden (one of my major passions).

So the changes to our routine are relatively small, compared to many. It's tougher for my husband than for me--the majority of my social life is online, but he is a gregarious person with a wide circle of friends, colleagues, and peers. But there's always Zoom and Skype, and he's making use of both.

For us as for many, stress and fear are daily companions. This is not the zombie apocalypse; there will be a vaccine eventually, and civilization will survive, as it survived the flu pandemic of 1918. But...how bad will it get? How long will it last--will we have to live this way for a year? More? What will happen to friends and family? What will happen to the people who are thrown out of work by widespread (and, I'm guessing, soon nationwide) business closures? The people who have no insurance? The people in prisons and ICE jails, the immigrants packed together at the border? And what about the election? I didn't think, back in innocent December, that that could become more crucial. But, as I stand in horror before the shitshow happening in Washington, it's clear to me that it has.

These and other questions haunt me on a daily, sometimes an hourly, basis. I suffer from depression--have done since childhood--and one of my fears is that I'll sink into a clinical episode. I can feel that possibility stalking around the edges of everything now. I am doing my best to resist. My husband, thank goodness, is more resilient. We work to keep each other's spirits up.

At a time like this, ordinary activities--like maintaining this blog--start to feel irrelevant. But they're not. Life goes on, even in the face of catastrophe. I seriously doubt that covid-19 will put a dent in the volume of schemes and scams that target writers who will still be writing, still seeking agents, still publishing. And one of the most important strategies for resisting helplessness and depression is work, for those of us who are still lucky enough to be able to do it.

Emily: Why are you taking my picture _again_?
So Writer Beware will go on. I'll continue to be active on Facebook and Twitter. As much as possible, I'll post here as I usually do--not always weekly, but as often as I find things to write about. And I urge you to continue to email me with your questions, concerns, reports, and complaints. Please, keep the emails coming.

And: wash your hands.

Don't touch your face.

Cough or sneeze into your elbow,.

Keep your distance: 6 feet is optimal.

Stay home if you can, especially if you're sick (I know this is tough for many to do).

Check on your elderly neighbors (from a distance).

Resist panic buying.

Don't share health information unless you're sure it comes from a reputable source (Facebook, oh my God).

Be safe.

I'll be seeing you.

March 13, 2020

Beware: Pigeon House Literary / Druella Burhan


Posted by Victoria Strauss for Writer Beware®

The internet and social media have transformed writer/agent/publisher interactions in many ways, one of which is the proliferation of Twitter pitch events, such as #PitMad, #DVPit, and others.

While no online innovation has (so far) managed to supplant the traditional query-and request route, these events do attract plenty of reputable agents and publishers--unlike other purported shortcuts (*cough*Publishizer*cough*). However, inevitably, they are also stalked by marginals, amateurs, and even scammers.

For instance, Eliezer Tristan Publishing, which charged a $500 fee and went out of business just months after opening up, haunted #PitMad. Ditto for GenZ publishing, which charges authors $2,500. Burchette and Ferguson, a brand-new publisher staffed by people with zero relevant experience, participated in pitch events before they even launched (and went out of business shortly thereafter).

Then there's this:


I've gotten many, many other questions about approaches by dubious companies and individuals as a result of pitch events. All in all, therefore, it pays to be careful, and if you haven't heard of an individual or publisher who approaches you, to research them before responding. (You can contact me; I may have heard something.)

Which leads me to the subject of today's post. I might not normally devote an entire blog post to one marginal agent, but this one is such an egregious example, and seems to be so active on social media--including #PitMad--that I think she's worth a special feature.

Pigeon House Literary Agency launched just this past February. It's run by Druella Burhan, whose resume includes none (zero, zip) of the relevant background experience you typically want to see from a new literary agent--such as a professional writing resume, or having previously worked for a reputable agency or publisher.


The lofty claims Burhan does make are either unverifiable, or provably false. For instance, here's Harvard Medical's publication on its 2011 MD-PhD graduates. Surprise! There's no mention of Druella Burhan.

Here's some of Burhan's agenting philosophy:


The logo (for lack of a better word) at the top of this post provides a preview of the rest of the Pigeon House site (a Wix freebie), which is amateurishly formatted and clearly not proofread (several pages have fully-justified text, with words cut off at the end of lines--I mean, it's a Wix freebie, it's not like you have to be an expert to get it right) and rife with typos, grammatical errors, and bizarre word use. For instance,


That's bad, but here's what it originally looked like. Burhan changed it shortly after I tweeted about it:


There's more: the Who We Are page, which bafflingly proclaims that the agency will "strive to bring a supreme appealingness and picturesque style of books from darkness to life"; the Foreign Rights page, which erroneously cautions writers that "If a literary agent does not agree to take you on as an international client/author, you will not be able to sell books overseas"; the Referrals page, where Burhan bizarrely invites other agents to send her clients. And here's the contract she is sending out, which includes the same formatting/proofreading errors as her website, and is really just an embarrassment.

It's a perfect carnival of amateurism.

Am I being mean here? Maybe, but before you whip out the "everyone has to start somewhere" argument, consider Burhan's false claims about herself and her aggressive use of social media to recruit clients despite her obvious ignorance and complete lack of relevant qualifications (I first heard of her because she was trolling on Reddit, and she is actively inviting queries on her Twitter feed).

The damage an amateur agent can do is considerable--squandering clients' chances with substandard submissions, submitting to disreputable or incompetent publishers, inadequately understanding publishing contract language and therefore not capable of effectively negotiating it. An amateur agent may not drain a writer's bank account the way a scammer would, but the bottom line isn't that different: no sale, and lots of wasted time.

Writer Beware.
 
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