[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3531 Introduced in House (IH)]







104th CONGRESS
  2d Session
                                H. R. 3531

   To amend title 15, United States Code, to promote investment and 
    prevent intellectual property piracy with respect to databases.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 23, 1996

 Mr. Moorhead introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend title 15, United States Code, to promote investment and 
    prevent intellectual property piracy with respect to databases.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Database Investment and Intellectual 
Property Antipiracy Act of 1996''.

SEC. 2. DEFINITIONS.

    ``Change of commercial significance'' means a change that a 
reasonable user of a database would regard as affecting the quality, 
quantity or value of contents of that database as a whole.
    ``Commerce'' means all commerce that may lawfully be regulated by 
Congress.
    ``Database'' means a collection, assembly or compilation, in any 
form or medium now or later known or developed, of works, data or other 
materials, arranged in a systematic or methodical way.
    ``Database maker'' means the natural or juristic person making a 
substantial investment, qualitatively or quantitatively, in the 
collection, assembly, verification, organization and/or presentation of 
the contents of the database. Unless provided otherwise by contract--
            (1) where two or more persons qualify as the makers of a 
        database, they are jointly the database maker;
            (2) where a database is made by employees within the scope 
        of their employment, the employer is the database maker; and
            (3) where a database is made pursuant to special order or 
        commission, the person who ordered or commissioned the database 
        is the database maker.
    ``Database management information'' means the name and other 
identifying information of the database maker, the name and other 
identifying information of the database owner, and terms and conditions 
for extraction and use or reuse of the contents of the database.
    ``Database owner'' means the database maker or the natural or 
juristic person who is the database maker's successor in interest.
    ``Extraction'' means the permanent or temporary transfer of all or 
a substantial part of the contents of a database or of a copy or copies 
thereof. Such transfer may be to an identical or different medium, and 
by any means or in any form, now or later known or developed.
    ``Governmental entity'' means the United States Government, any 
State, any agency or instrumentality of either, and any officer or 
employee of any of the foregoing acting in his or her official 
capacity.
    ``Insubstantial part'' of a database means any portion of the 
contents of a database whose extraction, use or reuse does not diminish 
the value of the database, conflict with a normal exploitation of the 
database or adversely affect the actual or potential market for the 
database.
    ``Juristic person'' means any firm, corporation, union, 
association, non-profit institution, or other organization capable of 
suing and being sued in a court of law, but does not include a 
governmental entity.
    ``Place in commercial use'' means to use or reuse, or to authorize 
use or reuse, for direct or indirect commercial advantage or for 
financial gain.
    ``Person'' means any natural person, any juristic person, and any 
governmental entity.
    ``Use'' and ``reuse'' means making available all or a substantial 
part, qualitatively or quantitatively, of the contents of a database, 
or access to all or such substantial part, whether or not for direct or 
indirect commercial advantage or financial gain, by any means now known 
or later developed, including any of the following: (i) marketing, 
selling, or renting; (ii) in the form of permanent or temporary copies; 
or (iii) by distribution, any online or other form of transmission.

SEC. 3. DATABASES SUBJECT TO THE ACT.

    (a) A database is subject to the Act if it is the result of a 
qualitatively or quantitatively substantial investment of human, 
technical, financial or other resources in the collection, assembly, 
verification, organization or presentation of the database contents, 
and (i) the database is used or reused in commerce; or (ii) the 
database owner intends to use or reuse the database in commerce.
    (b) A database otherwise subject to this Act shall remain subject, 
regardless of whether it is made available to the public or in 
commercial use; the form or medium in which it is embodied; or whether 
the database or any contents of the database are intellectual 
creations.
    (c) Except for a database made by a governmental entity, any 
database otherwise subject to this Act, is not excluded herefrom 
because its contents have been obtained from a governmental entity.
    (d) Computer programs are not subject to this Act, including 
without limitation any computer programs used in the manufacture, 
production, operation or maintenance of a database. However, the 
contents of a database otherwise subject to this Act remain subject, 
notwithstanding their direct or indirect incorporation in a computer 
program or other work.

SEC. 4. PROHIBITED ACTS.

    (a) No person shall, without the authorization of the database 
owner--
            (1) extract, use or reuse all or a substantial part, 
        qualitatively or quantitatively, of the contents of a database 
        subject to this Act in a manner that conflicts with the 
        database owner's normal exploitation of the database or 
        adversely affects the actual or potential market for the 
        database;
            (2) engage, notwithstanding section 5(a), in the repeated 
        or systematic extraction, use or reuse of insubstantial parts, 
        qualitatively or quantitatively, of the contents of a database 
        subject to this Act in a manner that cumulatively conflicts 
        with the database owner's normal exploitation of the database 
        or adversely affects the actual or potential market for the 
        database; or
            (3) procure, direct or commission any act prohibited by 
        subsections (i) or (ii).
    (b) Acts that conflict with a normal exploitation of the database 
or adversely affect the actual or potential market for the database 
include but are not limited to the extraction, use or reuse of all or a 
substantial part of the contents of a database--
            (1) in a product or service that directly or indirectly 
        competes in any market with the database from which it was 
        extracted; or
            (2) in a product or service that directly or indirectly 
        competes in any market in which the database owner has a 
        demonstrable interest or expectation in licensing or otherwise 
        using or reusing the database; or
            (3) in a product or service for customers who might 
        otherwise reasonably be expected to be customers for the 
        database; or
            (4) by or for multiple persons within an organization or 
        entity in lieu of the authorized additional use or reuse (by 
        license, purchase or otherwise) of copies of the database by or 
        for such persons.

SEC. 5. EXCEPTIONS TO PROHIBITED ACTS.

    (a) Subject to section 4(a)(ii), a lawful user of a database made 
available to the public or placed in commercial use is not prohibited 
from extracting, using or reusing insubstantial parts of its contents, 
qualitatively or quantitatively, for any purposes whatsoever.
    (b) Nothing in this Act shall in any way restrict any person from 
independently collecting, assembling or compiling works, data or 
materials from sources other than a database subject to this Act.

SEC. 6. DURATION OF PROHIBITIONS.

    (a) A database becomes subject to this Act when the necessary 
investment has been made to qualify its maker as such under section 2. 
The database shall remain subject to this Act for a period of twenty-
five years from the first of January following the date when it was 
first made available to the public or the date when it was first placed 
in commercial use, whichever is earlier.
    (b) Any change of commercial significance, qualitatively or 
quantitatively, to a database, including any such change through the 
accumulation of successive additions, deletions, reverifications, 
alterations, modifications in organization or presentation, or other 
modifications, shall make the resulting database subject to this Act 
for its own term, as calculated under subsection (a).

SEC. 7. CIVIL REMEDIES FOR VIOLATION OF SECTION 4.

    (a) Civil Actions.--A database owner injured by a violation of 
section 4 may bring a civil action for such a violation in an 
appropriate United States district court without regard to the amount 
in controversy: Provided however, That any action against a State 
governmental entity may be brought in any court that has jurisdiction 
over claims against such entity.
    (b) Temporary and Permanent Injunctions.--Any court having 
jurisdiction of a civil action arising hereunder shall have the power 
to grant temporary and permanent injunctions, according to the 
principles of equity and upon such terms as the court may deem 
reasonable, to prevent the violation of section 4. Any such injunction 
granted upon hearing, after notice to the party sought to be enjoined, 
by any district court of the United States, may be served on the party 
against whom such injunction is granted anywhere in the United States 
where such person may be found, and shall be operative and may be 
enforced by proceedings in contempt or otherwise by any United States 
district court having jurisdiction over such party.
    (c) Impoundment.--At any time while an action hereunder is pending, 
the court may order the impounding, on such terms as it deems 
reasonable, of all copies of contents of databases extracted and or 
used or reused in violation of section 4, and of all masters, tapes, 
disks, diskettes, or other articles by means of which such copies may 
be reproduced. The court may, as part of a final judgment or decree 
finding a violation of section 4, order the remedial modification or 
destruction of all copies of contents of databases extracted, used or 
reused in violation of section 4, and of all masters, tapes, disks, 
diskettes, or other articles by means of which such copies may be 
reproduced.
    (d) Monetary Relief.--When a violation of section 4 has been 
established in any civil action arising hereunder, the plaintiff shall 
be entitled, subject to principles of equity, to recover (i) 
defendant's profit, (ii) any damages sustained by the plaintiff, and 
(iii) the costs of the action. The court shall assess such profits or 
damages or cause the same to be assessed under its direction. In 
assessing profits the plaintiff shall be required to prove defendant's 
sales only; defendant must prove all elements of cost or deduction 
claimed. In assessing damages the court may enter judgment, according 
to the circumstances of the case, for any sum above the amount found as 
actual damages, not exceeding three times such amount. If the court 
shall find that the amount of the recovery based on profits is either 
inadequate or excessive, the court may in its discretion enter judgment 
for such sum as it finds just. The court in its discretion may award 
reasonable attorney fees to the prevailing party.
    (e) Subsections (b) and (c) shall not apply to any action against 
the United States Government.
    (f) The relief provided under this section shall be available 
against a State governmental entity to the extent allowed by applicable 
law.

SEC. 8. CRIMINAL OFFENSES AND PENALTIES FOR VIOLATION OF SECTION 4.

    (a) Any person who violates section 4 willfully, and--
            (1) does so for direct or indirect commercial advantage or 
        financial gain; or
            (2) thereby causes loss or damage to a database owner 
        aggregating $10,000 or more in any one-year calendar period, 
        shall be punished as provided in subsection (b).
    (b) An offense under subsection (a) shall be punishable by a fine 
of not more than $250,000 or imprisonment for not more than five years, 
or both. A second or subsequent offense under subsection (a) shall be 
punishable by a fine of not more than $500,000, imprisonment for not 
more than ten years, or both.

SEC. 9. RELATIONSHIP TO OTHER LAWS.

    (a) The remedies against violations hereunder shall be without 
prejudice to any remedies under any copyright that may subsist in the 
database, any contents of the database, or the selection, coordination 
or arrangement of such contents. Such remedies shall not limit, impair, 
or otherwise affect the existence, scope or duration of protection 
under any such copyright.
    (b) Nothing in this Act shall restrict the rights of parties freely 
to enter into licenses or any other contracts with respect to databases 
or their contents.
    (c) Nothing in this Act shall prejudice provisions concerning 
copyright, rights related to copyright or any other rights or 
obligations in the database or its contents, including laws in respect 
of patent, trademark, design rights, antitrust or competition, trade 
secrets, data protection and privacy, access to public documents, and 
the law of contract.

SEC. 10. CIRCUMVENTION OF DATABASE PROTECTION SYSTEMS.

    No person shall import, manufacture or distribute any device, 
product, or component incorporated into a device or product, or offer 
or perform any service, the primary purpose or effect of which is to 
avoid, bypass, remove, deactivate, or otherwise circumvent, without the 
authority of the database owner or the law, any process, treatment, 
mechanism or system which prevents or inhibits the extraction, use or 
reuse of the contents of the database in violation of section 4 hereof.

SEC. 11. INTEGRITY OF DATABASE MANAGEMENT INFORMATION.

    (a) False Database Management Information.--No person shall 
knowingly provide database management information that is false, or 
knowingly publicly distribute or import for public distribution 
database management information that is false.
    (b) Removal or Alteration of Database Management Information.--No 
person shall, without authority of the database owner or the law, (i) 
knowingly remove or alter any database management information, (ii) 
knowingly distribute or import for distribution database management 
information that has been altered without authority of the database 
owner or the law; or (iii) knowingly distribute or import for 
distribution copies of a database from which database management 
information has been removed without the authority of the database 
owner or the law.

SEC. 12. CIVIL REMEDIES FOR VIOLATION OF SECTIONS 10 OR 11.

    (a) Civil Actions.--Any person injured by a violation of section 10 
or section 11 may bring a civil action for such violation in an 
appropriate United States district court, without regard to the amount 
in controversy: Provided, however, That any action against a State 
governmental entity may be brought in any court that has jurisdiction 
over claims against such entity.
    (b) Powers of the Court.--In an action brought under subsection 
(a), the court--
            (1) may grant temporary and permanent injunctions on such 
        terms as it deems reasonable to prevent or restrain a 
        violation;
            (2) at any time while an action is pending, may order the 
        impounding, on such terms as it deems reasonable, of any device 
        or product that is in the custody or the control of the alleged 
        violator and that the court has reasonable cause to believe was 
        involved in a violation;
            (3) may award damages under subsection (c);
            (4) in its discretion may allow the recovery of costs by or 
        against any party other than the United States or an officer 
        thereof;
            (5) in its discretion may award reasonable attorney's fees 
        to the prevailing party; and
            (6) may, as part of a final judgment or decree finding a 
        violation, order the remedial modification or the destruction 
        of any device or product involved in the violation that is in 
        the custody or control of the violator or has been impounded 
        under subsection (ii).
    (c) Awards of Damages.--
            (1) In general.--Except as otherwise provided in this Act, 
        a violator is liable for either (A) the actual damages and any 
        additional profits of the violator, as provided by subsection 
        (ii), or (B) statutory damages, as provided by subsection 
        (iii).
            (2) Actual damages.--The court shall award to the 
        complaining party the actual damages suffered by him or her as 
        a result of the violation, and any profits of the violator that 
        are attributable to the violation and are not taken into 
        account in computing the actual damages, if the complaining 
        party elects such damages at any time before final judgment is 
        entered.
            (3) Statutory damages.--
                    (A) At any time before final judgment is entered, a 
                complaining party may elect to recover an award of 
                statutory damages for each violation of section 10 in 
                the sum of not less than $200 or more than $2,500 per 
                device, product, offer or performance of service, as 
                the court considers just.
                    (B) At any time before final judgment is entered, a 
                complaining party may elect to recover an award of 
                statutory damages for each violation of section 11 in 
                the sum of not less than $2,500 or more than $25,000.
            (4) Repeated violations.--In any case in which the injured 
        party sustains the burden of proving, and the court finds, that 
        a person has violated section 10 or 11 within three years after 
        a final judgment was entered against that person for another 
        such violation, the court may increase the award of damages up 
        to triple the amount that would otherwise be awarded, as the 
        court considers just.
            (5) Innocent violations.--The court in its discretion may 
        reduce or remit altogether the total award of damages in any 
        case in which the violator sustains the burden of proving, and 
        the court finds, that the violator was not aware and had no 
        reason to believe that its acts constituted a violation.
    (d) Subsections (b) (i) and (ii) shall not apply to any action 
against the United States Government.
    (e) The relief provided under subsection (b) shall be available 
against a State governmental entity to the extent allowed by applicable 
law.

SEC. 13. CRIMINAL OFFENSES AND PENALTIES FOR VIOLATION OF SECTION 11.

    Any person who violates section 11 with intent to defraud shall be 
fined not more than $500,000 or imprisoned for not more than five 
years, or both.

SEC. 14. LIMITATIONS ON ACTIONS.

    No action shall be maintained under this Act unless it is commenced 
within three years after the database owner knew or should have known 
of the claim.

SEC. 15. EFFECTIVE DATE.

    (a) This Act shall take effect immediately upon enactment, and 
shall be applicable to acts committed on or after that date.
    (b) No person shall be liable under this Act for use or reuse of 
database contents lawfully extracted from a database, prior to the 
effective date of this Act, by that person or by that person's 
predecessor in interest.
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