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Over 1,000 Cases Now Included in K&L Gates' E-Discovery Case Database
Electronic Discovery Law, 07/03/08
We are pleased to announce that our searchable case database now contains over 1,000 e-discovery cases from state and federal jurisdictions, with new cases being added every week. Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country.

Remove Hidden Metadata from Word Documents
TechnoEsq, 07/02/08
Unfortunately, metadata has curtailed one of the courtesies attorneys in litigation formerly exhibited through providing discovery requests in an electronic format so that opposing counsel didn’t have to have his assistant re-type your requests when answering discovery.

Is E-Mail Evidence Less Persuasive?
EDD Update, 06/20/08
I suppose it says something about your status in life if you are pleased or appalled to see Wall Street titans with eight-figure incomes taken away in handcuffs and booked. It's a bit like the lawyers in Qualcomm v Broadcom: we can identify with them until the lying starts, and then we no longer see ourselves in their moccasins.

What's Selling and What's Not

FindLaw

By Marie D'Amico, 

Retailers and Distributors Tell All

If you're a developer and you want to know which software titles are selling, and which are not selling, you can search the World Wide Web and find best-selling lists galore. Or, you can troll your local computer store and peruse top 10 lists for every different imaginable category of software titles. The more fundamental question is why do some titles sell like gangbusters and others languish on the shelves? We surveyed retailers and distributors around the United States to ask this question. Some general managers and software sales representatives had interesting insights into the most important question for any developer of software titles.


Many mainstream and nationwide distributors, retailers, and mail order houses, however, appear to have little notion which software titles are selling, which ones are not selling, and why. We contacted many major distributors of software who either didn't wish to tell which titles are selling or who didn't know. This failure to be able to disclose or to know simple sales figures demonstrates a disturbing lack of record-keeping which appears to be pervasive throughout the computer industry and which appears to cause some of the problems experienced by major computer companies. Apple Computer, Inc. has historically been unable to gauge which of its products will sell and, when it has guessed correctly, has been unable to stock its shelves with those products. The computer industry should take some notes from other well-established industries.

The music industry, for example, is strikingly similar to the software industry. Publishers and distributors are searching for the next hit, stores are stacked with a mind-numbing array of titles on the shelves, and profit margins on a hit are astronomical. Unlike the totally digital world, the record industry has rigorous record-keeping practices. SoundScan, a company located in Westchester, New York, reports on this industry. Each week, SoundScan provides a printout purchased by record distributors, publishers, and publications, which lists the name of each music title on the market and the amount it sold that previous week. Any member of the music industry can consult this report each week and can report on what's selling, what's not selling, and presumably can make some predictions as to why. While the music industry is over a 100 years old and the software industry is only about 20 years old, the software industry needs a reporting system akin to SoundScan and it's almost atrocious that one has not been implemented. After all, what could be more natural than a computer printout about the computer industry? Come on guys, stop guessing and start counting.

The New Gold Rush

In Redwood City, California, at the Computer Attic SuperCenter, Lee Halverson, Product Development Executive, said "anything that has to do with the Internet sells well. Customers are snapping stuff up even from no name companies if it relates to the Internet and larger companies are tailoring their products to the Internet any way they can. "Some companies like Quarterdeck, which hadn't been faring well recently, have roared back with a suite of Internet-based titles," he added. Chris Simmons, Director of Marketing for DirectWare, a nationwide mail order distributor, agreed. "Internet titles are the new gold rush," he said. "Since everyone wants to either surf the net or publish on the net, Internet-related materials are selling really well," he added. "For example, Macromedia's Director, which hadn't been selling well, is now doing great because of its Shockwave plug-in for publishing on the Internet. The Apple Internet Starter Kit is also doing well," he added.

Word of Mouth is King

Most retailers and distributors agreed consumer word of mouth is king. At Multiple Zones International, a growing, international mail order distributor, Derek Baines, sale associate for the Los Angeles, California area, said, "consumers read up on the latest magazine reviews and word of mouth based upon such reviews, for example, whether a product works or not, is very important," he said. "11th Hour has been around for about a year but it sells amazingly well, better than we expected, because of word of mouth," he added. Mohammed Navid, Manager of the Electronics Boutique in Westwood California, agreed. "Word of mouth is the controlling factor; if people hear about a product from others in their office, they will go out and by it," he said. "Maximizer from Spectrum Holobyte is a good example, it's a contact manager which has the same features as Sidekick but it sells better because Maximizer has generated good word of mouth," he added. Both Baines and Navid agreed that without word of mouth, a title will languish unsold on the shelves.

At the Lechmere store in Albany, New York, part of a chain of about 40 shops throughout New England, Aras Balgain, sales associate agreed with these sentiments. "Titles sell well because of word of mouth," he said. "85% of the users requesting business productivity software come in and ask for Quicken by name because they say that they have heard it's great from other people," he added. The same holds true for entertainment titles. "Beavis & Butthead's Virtual Stupidity is selling better than expected not only because of the popularity of the television show but also because consumers hear about it from others and come it and ask for it," he said.

How can developers get that precious word of mouth? Most retailers agree magazine reviews and marketing are the keys. At Circuit City, a 350 store nationwide chain and the largest name brand store in the United States, corporate headquarters prints out a list of the top 10 most popular titles each month and sends it to each store. Conrad Kelly, sales counselor at the Circuit City store in Somerville, Massachusetts, said he bases his recommendations upon that list and the magazine reviews he reads in Computer Reseller News. Daniel Robillard, Owner of Multimedia Replay in Minneapolis, Minnesota, said, "marketing is the whole deal." "A good quality game can develop a cult following but it'll never be a super game unless it's marketed heavily; I have many games which are great but no one knows who they are because they haven't developed word of mouth," he added. Robillard, whose store stocks more than 3,000 titles said, "the software business is just like the music business; you may be the best band on the planet but if you're not getting the gigs and you don't have the right manager, you're nowhere."

Name Recognition is Queen

Many of the stores with whom we spoke told us titles also will sell well if they have a name-brand company backing them. Eric Bailey, Manager of a Software Etc. store in Chicago, part of a 500-store nationwide chain, said "consumers go with the big names, especially if it's for the home office." "For example, Ami Pro is just as good as WordPerfect but WordPerfect is the leading word processing program because it's a big name, and people trust the name," he added. Bailey said his store only carries titles by names they trust, such as Microsoft and Electronic Arts. Halverson agreed. "Entertainment titles sell well if they are strongly supported by the distributor or if they are produced by a brand-name company such as Disney." "Disney can sell titles without much content, just a couple of pictures, because of their name recognition," he added. Baines couldn't agree more. "If it's made by a reputable company, people tend to trust it more," he said. Navid chimed in, "in personal productivity, the biggest selling products are Turbo Tax, made by Intuit, who everyone knows, and at other less tax intensive times of the year, it's often the virus scanning programs made by IBM." If you have a title, you might consider distribution by a major player to increase the name recognition of your product.

Other Pieces Can Help You Win the Game

Even with good word of mouth and name recognition, most retailers and distributors agreed other factors can help your title be a smash hit. Games need good graphics and good game play. Scott Kinser at United CD-ROM, a nationwide mail order catalog specializing in CD-ROM titles said, "Game titles are our bestsellers and in games, people look for interesting graphics and interaction with the game," he said. Simmons said, "entertainment titles with graphics which resemble the quality of either a Sony Playstation or a video arcade sell well." Navid agreed. "Games sell well that have good graphics and good game play," he said. "Civilization II by MicroPros is currently the hottest selling game because it benefited from the success of its predecessor, Civilization I, but added the better graphics and game play," he added. Bailey said, "games sell well which allow the user to interact with the environment and give him the sense of being there." "Clones of other games don't sell well unless they add something extra in terms of graphics or game play," he added. Randy Snow, owner of CyberActive Technologies, Inc., a multimedia retailer in Mississauga, Ontario, Canada, said, "game play is important even in educational titles; don't just present raw stuff." "If the product has levels built in and it's more like a game so that the idea of learning is secondary to having fun, it' sell better," he added. He cited Math Blaster as an example of a good game play educational title.

Some store owners recommended better installation procedures, crucial to consumers. Bennett said, "the biggest problem is most developers don't read their own instructions and they leave out a step." In his store, titles for Windows 95 are not selling because consumers refuse to deal with the loading, installation, and bug problems of Windows 95. "My best selling games are DOS-based," he said. "And, any programmer who says he can't do multimedia on DOS is just too lazy," he added.

Snow agreed. "The biggest thing is people want to load, use, and easily use products," he said. Snow feels his store is a success not only because it's friendly and non-tech looking, but because store salesmen will go on the Internet at the shop and find answers to consumer's questions. "When I built this store, I thought of my mom and dad," he said.

Software Trends

SofTrends is the software tracking service which is a collaboration between The NPD Group, a market research firm, and The Software Publishers Association (SPA). Every month they publish the top 10 list of software selling titles in different categories. Twice a year, they send out a two-page questionnaire to 10,000 PC-owning households, and compile the SofTrends Consumer Purchase Study. You can purchase two 70-page reports, the next one should be sent by April 1996, for a whopping $7,500 by calling Ed Roth at (516) 625-2294 or at ed_roth@npd.com. The SPA published some general results from the first study which tracked consumer purchases made during the second quarter of 1995. These studies track who is buying and what they are buying, but also why they are buying.

According to SofTrends, the top second quarter software categories were: adventure/role-playing games, arcade/action games, file/disk management, personal finance, and sports games. Microsoft Corporation, Broderbund Software, Inc., Softkey International, Intuit/Parsons Technology and Sierra On-Line, were the top publishers. When consumers shop, they buy either a certain type of software (58%) or a specific title (40%). Kinser agreed. "Most people call knowing already what they want." When shopping, the five most important factors influencing consumers' decisions are price, information on the back of the box, advertising, company reputation, and magazine reviews. Bobby Bennett, Manager of the CD-ROM Store in Dallas, Texas which stocks over 600 CD-ROM titles, emphasized information. "The more information that is on the box or the CD-itself, the more likely it'll sell. If the producer doesn't display much data and I have the time to write something up, it'll sell better," he said.

Consumers also like special offers or deals. SofTrends found about half of all purchasers bought sale or special offer items. In addition, college graduates are more likely than average consumers to buy on sale or special offers and post-graduates are three times as likely as average consumers to buy on sales or special offers. Bennett agreed. "Everything we do is driven by price. Our competition is Sam's and Wal-Mart and sometimes we have to accept a smaller margin to stay under their prices." Robillard agreed. "Most people won't spend more than 10% of the value of their systems on software titles, unless it's business related," he said. "Consumer are very price-conscious, if the title is $20 or less, they'll buy it, but if it's $35 to $40, they'll look at it pretty hard," he added.

As for sites, about 90% of all purchasers were satisfied or very satisfied with software retailers. Consumers rated computer superstores with the highest satisfaction rating. 93% of all consumers were either "satisfied" or "very satisfied" with their digital superstores. Consumers rated discount/department stores with the lowest satisfaction ratings; more than 25% of all consumers were dissatisfied with selection in discount stores. Snow agreed. "If you know what you want and you want a low price, those stores have got it, but the people they hire are very young and have no experience or in-depth knowledge about products," he said. "If you ask anyone at these stores, 'what does this do?' they don't know and if you go to different stores, you'll get different answers," he added. As for titles, consumers rated reference and educational titles with the highest level of satisfaction. More than 90% of all consumers were either "satisfied" or "very satisfied" with the performance of these two types of titles.

Sidebar A: David Letterman Imitators

Everyone loves top 10 lists and everyone has them, including most of the retailers and distributors with whom we spoke and many with whom we didn't speak. These lists reveal interesting differences between top software sellers between different countries and within separate sections of the United States. Knowing a bit about different cultures, it's easy to understand why NHL Hockey '96 is the number one software draft pick in Canada and why the BBC Gardeners World 2 is popular in the United Kingdom. And although the television show E.R. is a huge hit, Emergency Room CD only made the top 10 list for one distributor, which I guess means we want to see doctors on TV but not play doctor in real life.

Australia

Co-op: 35-store book retailer in Australia

Top 5 Software Sellers

1. Microsoft Office Pro 7.0 for Windows 95 (CD-ROM)

2. Microsoft Office 4.2 for Windows

3. Microsoft Office Pro 7.0 for Windows (Diskette)

4. Microsoft Windows 95 Upgrade

5. Microsoft Office 4.21 for Macintosh

Canada

CompuCentre: Sixty stores throughout Canada

Top 10 PC/Windows Games Top 10 Macintosh Games

1. NHL Hockey 96 1. Top 10 Mac Pack

2. Command & Conquer 2. Full Throttle

3. Fury3 3. Links Pro

4. Need for Speed 4. Dark Forces

5. Crusader: No Remorse 5. Wing Commander

6. Flight Simulator 5.1 6. Myst

7. Mortal Kombat III 7. DOOM II

8. Archives Vol. I 8. F/A-18 Hornet

9. Fade to Black 9. Colonization

10. Dark Forces 10. Civilization

Top 10 Productivity Software Titles

1. SoftRAM 95 (Windows)

2. Quicken (Windows)

3. Norton Utilities (Windows 95)

4. Microsoft Plus! (Windows 95)

5. Norton Antivirus (Windows 95)

6. Norton Navigator (Windows 95)

7. SoftWindows (PowerMac CD)

8. Calculus Studyware (DOS)

9. Mavis Beacon (Windows)

10. Personal Roots (Windows)

Circuit City in Somerville, MA (USA)

Top 5 Software Sellers

1. Microsoft Office

2. Microsoft Word

3. Microsoft Excel

4. MacWarrior II

5. Reader Rabbit

Lechmere in Albany, New York (USA)

Top 10 Software Sellers

1. Myst

2. Printshop Deluxe

3. Quicken 5

4. Street Atlas Version 3

5. Quicken for Macintosh

6. Microsoft Encarta 96

7. Beavis & Butthead's Virtual Stupidity

8. Windows 95

9. Doom II

10. 11th Hour

Datavision: Computer Superstore in Manhattan, NY

Graphic Titles Utility Titles

1. Quark Express 3.3.2 1. MacFee Virus Scan Win 95

2. Corel Draw 2. Norton Anti-Virus

3. AutoCAD L+ 3. QEMM 8.0

4. Photoshop 3.0 4. RAM Doubler

5. Freehand 5.5 5. Magna RAM 2

6. Illustrator 5.5 6. Norton Utilities

7. Painter 4.0 7. Win Check it Pro Win

8. Director 4.0 8. Uninstaller 3.0

9. KPT Vector Effects 9. After Dark 3.0

10. Adobe PageMaker 6.0 10. D.Time

Educational Titles Entertainment Titles

1. Magic School Bus 1. Command and Conquer

2. Dr. Seuss 2. FIFA Soccer '96

3. The Lost Mind of Dr. Brain 3. Screamer

4. Where in the USA is Carmen Sandiego? 4. Phantasmagoria

5. Kids Pix Studio 5. 11th Hour

6. Where in the World is Carmen Sandiego? 6. Star Wars Rebel Assault II

7. Opening Night 7. Sim City 2000

8. Magic School Bus Human Body 8. Mech Warrior 2

9. The Little Samurai 9. EF 2000

10. Oregon Trail II 10. Mortal Kombat III

Business Titles Productivity Titles

1. Act 2.0 1. Office Professional CD

2. Peachtree Accounting 2. Word Perfect 6.1

3. Biz Plan Builder 3. Lotus 1-2-3

4. Windows on Wall Street 4. Microsoft Publisher

5. Maplinx 5. Fox Pro 2.6

Communication Titles

1. WinFax Pro 7.0

2. PC Anywhere for Windows

3. LapLink for Windows

4. Netscape Navigator

5. Web Phone

6. Internet Phone

7. Procomm Plus

8. Internet Creator

9. I'll Get it!

10. Internet In-A-Box 2.0

Ingram Micro: Distributor in USA

Desktop Publishing/Graphics Communications Software

1. Corel Gallery 2 1. Netscape Navigator Personal Edition

2. Corel CD Office 2. Mosaic in a Box for Windows 95 2.0

3. Planix Home Architect 3D 3. CompuServe Access Kit

4. PC Paintbrush Clip Art 4. NetCruiser Plus

5. MyDeluxe Label Designer 3.1 5. WebTalk 1.0

Utilities Personal Productivity

1. Virusscan for Windows 95 1. The Print Shop Deluxe CD

2. QEMM 8.0 Upgrade 2. The Print Shop Deluxe

3. QEMM 8.0 3. Money for Windows 95 4.0

4. First Aid 2.0 for Windows 95 4. TurboTax Federal Headstart

5. Zip-it for Windows 95 3.1 5. Mavis Beacon Teaches Typing

6. Net Blocker Plus 6. The Print Shop Deluxe CD

7. SoftRAM 95 7. Small Business Attorney

8. KidDesk Family Edition 8. Maze 1.0

9. Internet Chameleon 4.5.3 9. TurboTax Deluxe 95 Federal

10. PD-Cillion 95 1.0 10. Macintax 95 Deluxe 95 Federal

Education Entertainment

1. Encarta Encyclopedia 1996 1. Angel Devoid

2. 1996 Grolier Multimedia Encyclopedia 2. Arcade America

3. Cinemania 3. Flight Simulator 5.1

4. Get Ready for School Charlie Brown 4. Myst

5. Learn to Speak Spanish 5. You Don't Know Jack

6. Jumpstart First Grade 6. You Don't Know Jack

7. Explorapedia Nature for Windows 7. Ecco The Dolphin

8. Jumpstart Kindergarten 8. EF 2000

9. Bookshelf for Windows 95 9. Monty Python

10. Just Grandma and Me 10. Monty Python

Computer MarketPlace: A CyberStore

PC Word Processors Mac Word Processors

1. Word 7.0 for Windows 95 upgrade 1. Word 6.0.1

2. Word 7.0 for Windows 95 2. Type Twister 1.0

3. WordPerfect 6.1 Upgrade 3. MacWrite Pro 1.5

4. WordPerfect 6.1 4. ResumeMaker

PC Spreadsheets Mac Spreadsheets

 

1. Excel 7.0 for Windows 95 upgrade 1. Excel 5.0

2. Excel 7.0 for Windows 95 2. Lotus 1-2-3 1.1

3. Excel 5.0 3. International Excel 5.0

PC Databases Mac DataBases

1. Access 2.0 1. Filemaker Pro 2.1

2. Access 2.0 Upgrade 2. Filemaker Pro CD Deluxe 2.1

3. Approach 3.0 3. MyAdvanced Mail List 4.3

PC Utilities Mac Utilities

1. Win 95 Advisor 1. RAM Doubler 1.5

2. The Norton Utilities Upgrade for Windows 95 2. SoftWindows 2.0

3. Norton Utilities Antivirus Windows 95 Upgrade 3. After Dark 3.0

4. Plus! for Windows 95 4. Norton Utilities 3.1

5. Norton Antivirus for Windows 95 5. Speed Doubler

PC Entertainment/Education Mac Entertainment/Education

 

1. Bookshelf for Windows 95 1. Myst

2. Flight Simulator 5.1 2. Star Trek: Omnipedia

3. Star Trek, Omnipedia 3. Dark Forces

4. Windows 95 Resource Book 4. F/A-18 Hornet 2.0

5. Thinkin Things Collection 2 5. F/A-18 Hornet: Korean Crisis

SPA's December 1995 Hit List

Educational Hits Entertainment Hits

1. Lion King Activity Center 1. Myst

2. Pocahontas Animated Storybook 2. 11th Hour

3. Winnie the Pooh/Honey Tree 3. Warcraft 2

4. Dr. Seuss ABCs 4. Star Wars Rebel Assault 2

5. The Lion King Storybook 5. MS Flight Simulator 5.1

6. The Oregon Trail 2 6. The Dig

7. Where in the World is Carmen Sandiego? 7. Hexen

8. Math Blaster 2: Lost City 8. Front Page Football Pro 96

9. Aladdin Activity Center 9. Mortal Kombat 3

10. Timon & Pumbaa's Jungle Game 10. Dark Forces

Business Productivity Personal Productivity

1. Netscape Navigator 1.2 1. Quicken 5.0

2. Mosaic in a Box 2.0 (CD) 2. Quicken 5.0 Deluxe

3. Mosaic in a Box 2.0 (Diskette) 3. The Print Shop Deluxe Ensemble 2

4. MS Publisher 3.0 4. Corel Print House CD

5. Printmaster Gold Classic 5. Hallmark Card Studio

6. Corel Draw 3.0 6. Turbotax 95 Headstart

7. Flexomatic Clipart 7. Quicken 5.0 Deluxe

8. Key Cad Complete 8. Multimedia Bible

9. Desktop Publisher 9. Street Finder

10. Corel Gallery 2 10. 70 Million Households

Reference Titles Utilities

1. MS Encarta 96 1. SoftRAM

2. Compton's Interactive Encyclopedia 2. After Dark

3. Street Atlas 3.0 3. Uninstaller 3.0

4. Encarta World Atlas 4. QEMM 8.0

5. MS Encarta 96 & Wineguide 5. Norton Antivirus

6. Tripmaker 1996 6. Dogz

7. MS Automap Street 7. Viruscan 1.0

8. Multimedia Blue 8. MagnaRAM

9. Street Finder 9. Toy Story Screen Scenes

10. 70 Million Households 95 10. After Dark

United CD-ROM (USA)

Top 5 Game Titles

1. Emergency Room CD

2. Doom II

3. Lion King Activity Center

4. Mortal Kombat

5. Warcraft II

Special Reserve Discount Club: Mail order in the U.K.

PC Disk Utilities PC CDs

1. Cleansweep 95 for Windows 1. Command & Conquer

2. Family Tree for Windows 2. Command & Conquer - Cover Operations

3. QEMM 3. Civilization 2

4. Norton Anti-Virus for Windows 95 4. Formula 1 Grand Prix

5. BBC Gardeners World 2 5. Championship Manager 2

6. Noddy's Playtime 6. Worms

7. Quickex 95 De-Installer 7. Duke Nukem 2D

8. MagnaRAM 2 for Windows 8. Wing Commander 4

9. Lotus Bundle for Windows 9. Sam & Max Hit the Road

10. Just Lotto 10. Terminator - Fuiture Shock

Mac CDs PC Disk Titles

1. Colonization 1. X-Wing

2. Doom 2 2. Worms

3. Full Throttle 3. Championship Manager Italia

4. X-Wing Collection 4. Secret of Monkey Island

5. Bookshelf for Mac 5. UFO - Enemy Unknown

6. Sim Town 6. Speedball 1 & 2

7. Worms 7. Microsoft Best of Entertainment Pack

8. PGA Tour Gold 3 8. Formula 1 Grand Prix 2

9. Dark Forces 9. Classic Collection (Flashback, Cruise for a Corpse, Another World, Operation Stealth, Future Wars)

10. Headcandy 10. Premier Manager 3 + Editor

Sidebar C: Retailers and Distributors Mentioned in this Feature

The CD-ROM Store, 13510 Floyd Rd., Suite 108, Dallas, TX 75243, Phone: (214) 680-1464

Circuit City , 65 Mystic Avenue, Somerville, MA 01803, Phone: (617) 229-1700 or (800) 627-2274 (corporate headquarters)

CompuCentre, Carlingswood Mall, Ottawa, Canada, Phone: (514) 729-0448, Web site:

Computer Attic SuperCenter, 2750 El Camino Real, Redwood City, CA 94061, Phone: (415) 363-8100

Computer Marketplace , 1101 Sussex Blvd., Broomall, PA 19008, Phone: (800) 950-2671 or (610) 690-6900

CyberActive Technologies, Inc., 1370 Dun Das St. East, Mississauga, Ontario, Canada L5A 2A5, Phone: (905) 275-5444

Datavision, 445 5th Avenue, New York, NY 10016, Phone: (212) 689-2768

DirectWare, 19950 Mariner Avenue, Torrance, CA 90503, Phone: (310) 793-4553

Electronics Boutique, 10800 W. Pico Boulevard, Westwood, CA 90064, Phone: (310) 474-7742

Lechmere, 1440 Central Avenue, Albany, NY 12205, Phone: (518) 459-1500

Multimedia Replay, 1428 West Lake Street, Minneapolis, MN 55408, Phone: (612) 823-2205

Multiple Zones, 15815 SE 37th Street, Bellevue, WA 98006, Phone: (800) 248-0800 or (206) 603-2600,

Software, Etc., 645 N. Michigan Avenue, Chicago, 60611, Phone: (312) 642-5648

Special Reserve Discount Club , 2 South Bloc, The Maltings, Sawbridgeworth, Herts, England CM21 9PG

United CD-ROM, PO Box 159, Savoy, IL 61874, Phone: (800) united4 or (217) 352-8737

The University Co-op Bookshop , 80 Bay Street, Broadway, New South Wales 2007, Australia

Software


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