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  1. #31
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.ericsson - REPLY ON USENET PLEASE]

    In <[email protected]> on 10 Jan 2005
    16:45:29 -0800, [email protected] wrote:

    >John wrote:


    >> My claim is that short MIDI clips are Fair Use.

    >
    >YourMobile.com was sued by EMI, and settled out of court, acquiring a
    >license and paying royalties for their distribution of ringtones.
    >http://news.com.com/2100-1033-275232.html?legacy=cnet
    >http://www.out-law.com/php/page.php?...1875&area=news


    A different matter, and no court ruling in any event.

    >You claimed that your distribution of MIDI clips was legal based on
    >fair use.
    >There are four tests used to examine whether fair use exemptions apply.
    >[SNIP]
    >... If you really
    >do feel that your use passes the tests then, please, explain which
    >tests and why.


    <http://www.benedict.com/info/Law/FairUse.aspx>:

    >In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
    >
    > 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


    The latter.

    > 2. the nature of the copyrighted work;


    Song.

    > 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


    Small portion (roughly 30 secs).

    > 4. the effect of the use upon the potential market for or value of the copyrighted work.


    Zilch.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



    See More: John's favorite ringtones




  2. #32
    John Navas
    Guest

    Re: John's favorite ringtones

    On Fair Use:

    <http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm>:

    What is fair use?

    We would all appreciate a clear, crisp answer to that one, but far
    from clear and crisp, fair use is better described as a shadowy
    territory whose boundaries are disputed, more so now that it includes
    cyberspace than ever before. In a way, it's like a no-man's land.
    Enter at your own risk.

    <http://www.meredith.edu/copyright/fair_use_information.html>:

    Fair use tests are difficult, not because the factors are hard to
    understand, but because application of the factors is an inexact
    science and different people will draw different conclusions from the
    same set of facts. The only certain answer to whether a particular
    use is a fair us it to have it judged in federal court.

    <http://www.utsystem.edu/OGC/intellectualproperty/copypol2.htm#test>:

    Most people think that the fair use test is difficult. Actually, it's
    not so much difficult as it is uncertain - susceptible to multiple
    interpretations. Two people can review the same facts about a
    proposed use and come to different conclusions about its fairness.
    That's because one must make many judgments in the course of weighing
    and balancing the facts.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



  3. #33
    Scott Stephenson
    Guest

    Re: John's favorite ringtones


    "John Navas" <[email protected]> wrote in message
    news:[email protected]...

    >
    > I suggest you take your own advice. I also suggest you calm down.
    >
    > --


    I'd be glad to, if you would do more than simply post snippets of
    legislation and simply point to them as if they apply to your situation.
    I'll let the history of my own posts speak to the fact that I don't view a
    'relaxed' approach to regulation or responsibility as acceptable. And I
    won't ever apologize for taking the approach I do when confronted with
    something that is essentially wrong. You got caught with you hand in the
    cookie jar, and for reasons that I need not go into here you did hit a big
    nerve. And as history proves, you're getting exactly the same thing from me
    that anyone else would get- no apologies or need to calm down on this end.

    I'm sick of the lack of personal responsibility exhibited in this forum (and
    others) on a daily basis. Everybody tries to figure out the technicality
    instead of taking responsibility for their actions and accepting the fact
    that they made a mistake. Most of the time, posters are looking for someone
    else (usually the government or the court system) to wipe their ass and make
    it all better as they fight the Great Corporate Demons. We (you and I) have
    a history here of how we feel about regulation, government and ridiculous
    litigation, and in many respects it is identical. One philosophy that you
    have posted in the past- while less regualtion would be good, it is no
    reason to ignore regulations in place. All I see you doing here is trying
    to find the technicality to justify a 'relaxed' view of regulations in
    place, because it suits your immediate needs. In my view, that is no better
    than the poster who *****es about charges incurred that were clearly *****ed
    out in the service agreement they signed but were too lazy to read. Posting
    regulations and understanding them are two different things, and in this
    case you do not understand what you post. If you did, you would realize
    that you have no license to post the work of others, no matter what your
    intention. That is not opinion- that is fact.

    So, has all of the talk about personal responsiblity and understanding the
    rules that you have posted here been for real or just some party line that
    applies to everyone but you? Think carefully about this, because one of
    your flip one-liners doesn't answer the question, although it might shed
    some light on your real view of things.





  4. #34

    Re: John's favorite ringtones

    John wrote:
    > I wrote:
    > > 1. the purpose and character of the use, including whether such
    > > use is of a commercial nature or is for nonprofit educational

    purposes;
    > The latter.


    Educational purposes? How, pray tell, is a cellphone ring tone of a
    popular song "educational"?

    You're also _completely_ missing one of the most important parts of
    fair use doctrine - the _purpose_ of the use. A best-faith attempt at
    extracting the music notes is a best-faith copy of the copyrighted
    musical score. The difficulty in extraction is not "transformative" any
    more than transcribing an author reading a book is "transformative."

    You are not commenting on the work. You are not satirizing the work.
    You are not criticizing or educating. The only reason that somebody
    would decide to use a MIDI of a song you're distributing is because
    they enjoyed the song and thought it would make a good ring tone.

    If you think that intellectual property rights in the US are moving in
    the wrong direction, do something _meaningful_ about it. Try to get
    laws changed. I don't agree with opinions like John Warnock's "too
    strong IP protection isn't a bad thing." I was very disappointed to see
    the outcome of Eldred vs. Ashcroft. Thinking the law is wrong is not an
    excuse to twist it into meaning what you wish it did.

    > > 2. the nature of the copyrighted work;

    > Song

    ....which, as I said, means that you have less fair use leeway.

    > > 3. the amount and substantiality of the portion used in relation

    to the copyrighted work as a whole; and
    > Small portion (roughly 30 secs).

    Indeed, that's what I said. Small portion. I also explained why that
    portion would be sufficient to meet the "substantiality" test.

    If pay ring tones sites, licensed by the copyright holders, charge
    people for downloads of named songs which are actually just specific
    portions that are best for ring-tones, it seems pretty clear that the
    consumer considers that snipped to be substantial enough to qualify as
    the song.

    >From your link:

    "This is not a pure ratio test in that using a whole work may be fair
    use in some circumstances, whereas using a tiny fraction of a work not
    qualify for fair use in other circumstances."

    Your own link refutes your assertion that the ratio alone means
    anything.

    > > 4. the effect of the use upon the potential market for or value

    of the copyrighted work.
    > Zilch.


    John, do you understand the difference between a "rebuttal" and an
    "assertion"? I provided reasoning for my claims. You simply disagreed,
    without deigning us worthy of any actual _justification_ for your
    assertions.

    In your next post, you apparently have chosen to start arguing that
    there are grey areas in fair use law. Of course there are. The fact
    that there are grey areas does not change the fact that some situations
    are clearly not grey.

    I think that it could be argued that nearly every law has grey areas,
    or edge cases that are difficult to decide. That does not mean that
    there are not also clear cut, easy to resolve cases.

    Going back to your link:
    > for purposes such as
    > criticism,

    Nope, ring tones don't fit there...
    > comment,

    Don't seem to fit here either.
    > news reporting,

    Definitely not news reporting
    > teaching (including multiple copies for classroom use),

    Teaching? Nope.
    > scholarship,

    Don't sound like scholarship
    > or research,

    Definitely not research.
    > is not an infringement of copyright.

    Hmm. Cellphone ring tones don't fit into the usual categories for fair
    use exemption.

    They don't seem to meet the four point test either.

    Again, just because there _are_ grey areas does not mean this is one of
    them.




  5. #35
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

    In <[email protected]> on Mon, 10 Jan 2005 19:36:35 -0700,
    "Scott Stephenson" <[email protected]> wrote:

    >"John Navas" <[email protected]> wrote in message
    >news:[email protected]...
    >
    >> I suggest you take your own advice. I also suggest you calm down.


    >I'd be glad to, if


    No if.

    >you would do more than simply post snippets of
    >legislation and simply point to them as if they apply to your situation.


    I think my posts are sufficient to support my position. You don't. That's
    simply a difference of opinion.

    >I'll let the history of my own posts speak to the fact that I don't view a
    >'relaxed' approach to regulation or responsibility as acceptable.


    I don't either, as I think my own posts make clear.

    >And I
    >won't ever apologize for taking the approach I do when confronted with
    >something that is essentially wrong.


    That's too bad, because it is just a matter of opinion, on which reasonable
    people can and do differ. (More on that below.)

    >You got caught with you hand in the
    >cookie jar,


    I respectfully disagree (as I've explained in detail).

    >and for reasons that I need not go into here you did hit a big
    >nerve.


    Obviously, but that's not a good excuse for overreaction.

    >And as history proves, you're getting exactly the same thing from me
    >that anyone else would get- no apologies or need to calm down on this end.


    I think that's unfortunate.

    >I'm sick of the lack of personal responsibility exhibited in this forum (and
    >others) on a daily basis.


    Me too.

    >Everybody tries to figure out the technicality
    >instead of taking responsibility for their actions and accepting the fact
    >that they made a mistake.


    I don't think I made a mistake. We just have different opinions.

    >... All I see you doing here is trying
    >to find the technicality to justify a 'relaxed' view of regulations in
    >place, because it suits your immediate needs.


    I think you are letting your emotions color your judgement, thereby losing all
    sense of perspective and proportion.

    >In my view, that is no better
    >than the poster who *****es about charges incurred that were clearly *****ed
    >out in the service agreement they signed but were too lazy to read.


    Again, I respectfully disagree.

    >Posting
    >regulations and understanding them are two different things, and in this
    >case you do not understand what you post.


    I think I do understand it. We just have differing opinions.

    >If you did, you would realize
    >that you have no license to post the work of others, no matter what your
    >intention. That is not opinion- that is fact.


    By your absolute standard there would be no Fair Use exceptions.

    <http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm>:

    What is fair use?

    We would all appreciate a clear, crisp answer to that one, but far
    from clear and crisp, fair use is better described as a shadowy
    territory whose boundaries are disputed, more so now that it includes
    cyberspace than ever before. In a way, it's like a no-man's land.
    Enter at your own risk.

    <http://www.meredith.edu/copyright/fair_use_information.html>:

    Fair use tests are difficult, not because the factors are hard to
    understand, but because application of the factors is an inexact
    science and different people will draw different conclusions from the
    same set of facts. The only certain answer to whether a particular
    use is a fair us it to have it judged in federal court.

    <http://www.utsystem.edu/OGC/intellectualproperty/copypol2.htm#test>:

    Most people think that the fair use test is difficult. Actually, it's
    not so much difficult as it is uncertain - susceptible to multiple
    interpretations. Two people can review the same facts about a
    proposed use and come to different conclusions about its fairness.
    That's because one must make many judgments in the course of weighing
    and balancing the facts.

    >So, has all of the talk about personal responsiblity and understanding the
    >rules that you have posted here been for real or just some party line that
    >applies to everyone but you?


    Quite real, thank you.

    >Think carefully about this, ...


    Been there; done that.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



  6. #36
    Scott Stephenson
    Guest

    Re: John's favorite ringtones


    "John Navas" <[email protected]> wrote in message
    news:[email protected]...


    Try these:
    http://www.alankorn.com/articles/sampling.html

    "IS DIGITAL SAMPLING PROTECTED AS FAIR USE?
    So far, no court has ruled on whether digital sampling may be protected as
    fair use. However, legal experts agree that for a sample to qualify as fair
    use, it must be used for purposes such as parody, criticism, teaching, news
    reporting, research or some non-profit use. Using a sample merely because it
    sounds good is simply not enough to qualify for protection as fair use.
    [Note: For more information on music and fair use, click back to my recent
    Fine Print column on the fair use exception to copyright infringement.]

    OBTAINING SAMPLE CLEARANCES

    To legally sample a song, it is necessary to obtain permission from the
    copyright holder of the sound recording (usually the record company) and the
    copyright holder of the composition (usually the song's publisher).
    Permission from the owner should also be sought when sampling a television
    show or motion picture.

    Artists should obtain permission from all copyright owners before any song
    containing a sample is distributed publicly. Waiting until after your record
    is distributed can result in lost income, expensive legal fees and the
    removal of your record from the market. Releasing your record before
    obtaining clearances also reduces your bargaining power if you later attempt
    to negotiate a sample license."



    http://www.cyberbee.com/copyrpln.pdf

    "The copyright "owner" has the exclusive rights to:

    Ó reproduce the work

    Ó prepare "spin off" created from the work

    Ó distribute copies or phonorecords (cassette tapes, CD's LP's,

    45 rpm's as well as other formats) by sale or transfer of

    ownership, rental, lease or lending

    Ó perform the work publicly (for plays, musicals, poetry,

    choreography, pantomimes, movies and other audiovisuals)

    Ó display the work publicly (poems, musicals, plays,

    choreography, pantomimes, pictorial, graphics, sculptures,

    individual images from movies and other audiovisual works)

    Ó perform publicly (by digital audio transmission) sound

    recordings

    They can also give permission for others to do the same."



    Also mentioned on this document under "Fair Use", is an illegal activity-
    making it available on the web. BTW- this comes from a lesson plan used in
    the eighth grade- pretty concise and to the point.





  7. #37
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

    In <[email protected]> on 10 Jan 2005
    18:48:22 -0800, [email protected] wrote:

    >... I provided reasoning for my claims. You simply disagreed,
    >without deigning us worthy of any actual _justification_ for your
    >assertions.


    I respectfully disagree on that score as well. You've misrepresented my
    arguments, and I think you've also misrepresented those sources. Further
    argument seems pointless, so we're just going to have to agree to disagree.

    ( Feel free to have the last word.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



  8. #38
    Scott Stephenson
    Guest

    Re: John's favorite ringtones


    "John Navas" <[email protected]> wrote in message
    news:[email protected]...

    You also brought up the Berne Convention earlier in the thread. You need to
    look at Article 11:


    Article 11
    (1) Authors of dramatic, dramatico-musical and musical works shall enjoy the
    exclusive right of authorizing:

    a.. (i) the public performance of their works, including such public
    performance by any means or process;
    b.. (ii) any communication to the public of the performance of their
    works.
    (2) Authors of dramatic or dramatico-musical works shall enjoy, during the
    full term of their rights in the original works, the same rights with
    respect to translations thereof.



    You either provided a performance or translation to the public. Shall I
    find more?





  9. #39
    Scott Stephenson
    Guest

    Re: John's favorite ringtones


    "John Navas" <[email protected]> wrote in message
    news:[email protected]...

    From the US Copyright Code:

    TITLE 17 > CHAPTER 1

    § 106. Exclusive rights in copyrighted works


    Release date: 2004-04-30

    Subject to sections 107 through 122, the owner of copyright under this title
    has the exclusive rights to do and to authorize any of the following:
    (1) to reproduce the copyrighted work in copies or phonorecords;
    (2) to prepare derivative works based upon the copyrighted work;
    (3) to distribute copies or phonorecords of the copyrighted work to the
    public by sale or other transfer of ownership, or by rental, lease, or
    lending;
    (4) in the case of literary, musical, dramatic, and choreographic works,
    pantomimes, and motion pictures and other audiovisual works, to perform the
    copyrighted work publicly;
    (5) in the case of literary, musical, dramatic, and choreographic works,
    pantomimes, and pictorial, graphic, or sculptural works, including the
    individual images of a motion picture or other audiovisual work, to display
    the copyrighted work publicly; and
    (6) in the case of sound recordings, to perform the copyrighted work
    publicly by means of a digital audio transmission.


    Nothing in sections 107-122 would apply to what you have done.





  10. #40
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

    In <[email protected]> on Mon, 10 Jan 2005 20:53:12 -0700,
    "Scott Stephenson" <[email protected]> wrote:

    >Try these:
    >http://www.alankorn.com/articles/sampling.html
    >
    > "IS DIGITAL SAMPLING PROTECTED AS FAIR USE?


    I'm not doing digital sampling (conversion of analog audio into digital).
    Do you not understand MIDI?

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



  11. #41
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

    In <[email protected]> on Mon, 10 Jan 2005 21:00:25 -0700,
    "Scott Stephenson" <[email protected]> wrote:

    >"John Navas" <[email protected]> wrote in message
    >news:[email protected]...
    >
    >You also brought up the Berne Convention earlier in the thread. You need to
    >look at Article 11:
    >
    >Article 11
    >(1) Authors of dramatic, dramatico-musical and musical works shall enjoy the
    >exclusive right of authorizing:
    >
    > a.. (i) the public performance of their works, including such public
    >performance by any means or process;
    > b.. (ii) any communication to the public of the performance of their
    >works.
    >(2) Authors of dramatic or dramatico-musical works shall enjoy, during the
    >full term of their rights in the original works, the same rights with
    >respect to translations thereof.
    >
    >You either provided a performance or translation to the public.


    No performance was involved.

    >Shall I
    >find more?


    Knock yourself out, but at least get on point.

    These MIDI files aren't performances -- they are just sequences of notes, much
    like translated excerpts from sheet music into digital form.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



  12. #42
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

    In <[email protected]> on Mon, 10 Jan 2005 21:09:17 -0700,
    "Scott Stephenson" <[email protected]> wrote:

    >
    >"John Navas" <[email protected]> wrote in message
    >news:[email protected]...
    >
    >From the US Copyright Code:
    >
    > TITLE 17 > CHAPTER 1
    >
    >§ 106. Exclusive rights in copyrighted works
    >
    >Release date: 2004-04-30
    >
    >SUBJECT TO SECTIONS 107 THROUGH 122, the owner of copyright under this title


    [emphasis added by me]

    >has the exclusive rights to do and to authorize any of the following:
    >(1) to reproduce the copyrighted work in copies or phonorecords;
    >(2) to prepare derivative works based upon the copyrighted work;
    >(3) to distribute copies or phonorecords of the copyrighted work to the
    >public by sale or other transfer of ownership, or by rental, lease, or
    >lending;
    >(4) in the case of literary, musical, dramatic, and choreographic works,
    >pantomimes, and motion pictures and other audiovisual works, to perform the
    >copyrighted work publicly;
    >(5) in the case of literary, musical, dramatic, and choreographic works,
    >pantomimes, and pictorial, graphic, or sculptural works, including the
    >individual images of a motion picture or other audiovisual work, to display
    >the copyrighted work publicly; and
    >(6) in the case of sound recordings, to perform the copyrighted work
    >publicly by means of a digital audio transmission.


    The above is section 106 only, not the other sections (in particular section
    107), which you didn't quote.

    >Nothing in sections 107-122 would apply to what you have done.


    I respectfully disagree, as I've explained repeatedly and in some detail.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



  13. #43
    Scott Stephenson
    Guest

    Re: John's favorite ringtones


    "John Navas" <[email protected]> wrote in message
    news:[email protected]...
    > Do you not understand MIDI?
    >
    > --


    Much more than you would know. MIDI is actually quite archaic for my needs-
    I tend to use a 32 channel digital mixer and a variety of licensed
    instrumental samples. It provides a much more accurate sound palette and
    doesn't have the calliope sound characteristics of MIDI. It also requires a
    level of musical expertise not usually found with those that use MIDI
    exclusively, as the use of polyphony and orchestration are not usually found
    in monophonic MIDI recordings. You see, John, as a composer, I have life
    experience with the Copyright laws of this country, and have many friends
    who are negatively impacted by the acts you are trying to defend here. You
    are trying to learn it while I live it. I know what people are allowed to
    do with my work and what they can't do with it. So you can either decide to
    listen to the few of us here who actually know what we are talking about, or
    you can continue to operate with your head in the sand and ignore us. At
    this point, I really don't care. Just know that in this instance you are
    operating outside your area of knowledge and you got caught. All of the
    huffing and puffing in the world is not going to make this one go away, and
    your offer to 'agree to disagree' won't do the job, either. I will never
    understand your need to always be right and never admit fault.





  14. #44
    Scott Stephenson
    Guest

    Re: John's favorite ringtones


    "John Navas" <[email protected]> wrote in message
    news:[email protected]...

    >
    > No performance was involved.


    In order for music to be heard, it must be performed. There is no wiggle
    room there.

    >
    > >Shall I
    > >find more?

    >
    > Knock yourself out, but at least get on point.
    >
    > These MIDI files aren't performances -- they are just sequences of notes,

    much
    > like translated excerpts from sheet music into digital form.


    And a performance is just sequences of notes, translated from sheet music
    and many times into digital form. If I sit down at my digital piano, pull
    out a piece of sheet music and reproduce the sequence of notes on the music,
    saving it onto my computer as a .wav, .mp3 or .orc file, I have done exactly
    what you did with different tools and in a different format. The fact that
    these were done in MIDI does not have any bearing, as I've explained in a
    previous post. The fact that they were sequenced on a computer has no
    bearing, either. There are a multitude of commercially available musical
    works that were created entirely by computer sequencing. Like it or not,
    what you have done is release a series of unlicensed musical performances
    for public consumption.






  15. #45
    John Navas
    Guest

    Re: John's favorite ringtones

    [POSTED TO alt.cellular.attws - REPLY ON USENET PLEASE]

    In <[email protected]> on Mon, 10 Jan 2005 21:31:04 -0700,
    "Scott Stephenson" <[email protected]> wrote:

    >... You see, John, as a composer, I have life
    >experience with the Copyright laws of this country, and have many friends
    >who are negatively impacted by the acts you are trying to defend here.


    As an author and as an expert witness in IP, I also have life experience with
    the Copyright laws of this country, albeit in different areas.

    >You
    >are trying to learn it while I live it. I know what people are allowed to
    >do with my work and what they can't do with it. So you can either decide to
    >listen to the few of us here who actually know what we are talking about, or
    >you can continue to operate with your head in the sand and ignore us.


    I listen to legal scholars and IP attorneys, not non-attorneys. Even they
    only have opinions, not facts, and differing opinions at that (as shown by
    quotations I posted previously).

    >At
    >this point, I really don't care.


    Me either. I think we've beat it to death.

    >Just know that in this instance you are
    >operating outside your area of knowledge and you got caught.


    No more so than you. We're both non-attorneys, albeit with different
    experience and somewhat different opinions in this area. (We actually agree
    overall more than we disagree.)

    >All of the
    >huffing and puffing in the world is not going to make this one go away, and
    >your offer to 'agree to disagree' won't do the job, either. ...


    Indeed -- it's an emotional issue with you, which seems to make an objective
    discussion out of the question.

    --
    Best regards, HELP FOR CINGULAR GSM & SONY ERICSSON PHONES:
    John Navas <http://navasgrp.home.att.net/#Cingular>



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