[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2291 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2291

To amend title 17, United States Code, to prevent the misappropriation 
                     of collections of information.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 10, 1998

   Mr. Grams introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend title 17, United States Code, to prevent the misappropriation 
                     of collections of information.

    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 ``Collections of Information 
Antipiracy Act''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the United States workforce is increasingly engaged in 
        the creation, processing, distribution, and maintenance of 
        information in interstate and foreign commerce;
            (2) comprehensive, trustworthy collections of information 
        are increasingly a fundamental component of scientific, 
        educational, and social progress;
            (3) the United States public benefits from having ready 
        access to reliable, up-to-date collections of information 
        concerning virtually all the endeavors of mankind;
            (4) the production of accurate, trustworthy collections of 
        information requires the investment of substantial amounts of 
        human, technical, and financial resources to compile, sort, 
        organize, maintain, verify, and distribute;
            (5) the wholesale, unauthorized copying, and dissemination 
        of another person's information product constitutes market-
        destructive free riding on the investment of the information 
        compiler;
            (6) advances in digital technology render informational 
        products increasingly vulnerable to database piracy as 
        unauthorized copies may be made and transmitted around the 
        world in a few seconds;
            (7) current Federal and State laws, including laws 
        governing copyright, contract, and misappropriation, do not 
        adequately protect investments against this free riding;
            (8) as a result of the decision of the United States 
        Supreme Court in Feist Publications, Inc. v. Rural Telephone 
        Services Co., 499 United States 340 (1991), and certain 
        decisions of the inferior courts of the United States, the 
        copyright law affords members of the United States business 
        community, both individuals and entities who create and 
        distribute compilations of data, little or no protection 
        against piracy;
            (9) legislation is needed to ensure that legitimate access 
        to discrete data is not impaired while also encouraging persons 
        to identify, collect, verify, and add value to such information 
        and make it available for study, enjoyment, and use;
            (10) the piecemeal, inconsistent protection for databases 
        provided by State misappropriation and contract laws 
        inadequately protects the investment of database compilers from 
        destructive acts of free riding;
            (11) the continuing development of digital technology has 
        enabled even the smallest information provider to transact 
        business on a national scale, rendering uniformity essential to 
        the continued growth of interstate commerce;
            (12) technology safeguards do not adequately deter database 
        piracy, because such safeguards are not foolproof, add to the 
        cost and difficulty of accessing and delivering information, 
        and provide no recourse once the safeguards have been 
        circumvented;
            (13) the United States should set the world standard for 
        database protection, and make the utmost effort to ensure the 
        uniform, international protection of these valuable information 
        products;
            (14) database piracy, if left unchecked by Congress, will 
        so reduce the incentive to produce these products that the 
        quality or existence will be significantly threatened or 
        eliminated; and
            (15) new legislation is needed to protect the substantial 
        investments involved in the production and dissemination of 
        collections of information in interstate commerce.

SEC. 3. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.

    Title 17, United States Code, is amended by adding at the end the 
following new chapter:

      ``CHAPTER 12--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION

``Sec.
``1201. Definitions.
``1202. Prohibition against misappropriation.
``1203. Permitted acts.
``1204. Exclusions.
``1205. Relationship to other laws.
``1206. Civil remedies.
``1207. Criminal offenses and penalties.
``1208. Limitations on actions.
``Sec. 1201. Definitions
    ``As used in this chapter:
            ``(1) Collection of information.--The term `collection of 
        information' means information that has been collected and has 
        been organized for the purpose of bringing discrete items of 
        information together in one place or through one source so that 
        users may access them.
            ``(2) Information.--The term `information' means facts, 
        data, works of authorship, or any other intangible material 
        capable of being collected and organized in a systematic way.
            ``(3) Potential market.--The term `potential market' means 
        any market that a person claiming protection under section 1202 
        has current and demonstrable plans to exploit or that is 
        commonly exploited by persons offering similar products or 
        services incorporating collections of information.
            ``(4) Commerce.--The term `commerce' means all commerce 
        which may be lawfully regulated by the Congress.
            ``(5) Product or service.--A product or service 
        incorporating a collection of information does not include a 
        product or service incorporating a collection of information 
        gathered, organized, or maintained to address, route, forward, 
        transmit, or store digital online communications or provide or 
        receive access to connections for digital online 
        communications.
``Sec. 1202. Prohibition against misappropriation
    ``Any person who extracts, or uses in commerce, all or a 
substantial part, measured either quantitatively or qualitatively, of a 
collection of information gathered, organized, or maintained by another 
person through the investment of substantial monetary or other 
resources, so as to cause harm to the actual or potential market of 
that other person, or a successor in interest of that other person, for 
a product or service that incorporates that collection of information 
and is offered or intended to be offered for sale or otherwise in 
commerce by that other person, or a successor in interest of that 
person, shall be liable to that person or successor in interest for the 
remedies set forth in section 1206.
``Sec. 1203. Permitted acts
    ``(a) Individual Items of Information and Other Insubstantial 
Parts.--Nothing in this chapter shall prevent the extraction or use of 
an individual item of information, or other insubstantial part of a 
collection of information, in itself. An individual item of 
information, including a work of authorship, shall not itself be 
considered a substantial part of a collection of information under 
section 1202. Nothing in this subsection shall permit the repeated or 
systematic extraction or use of individual items or insubstantial parts 
of a collection of information so as to circumvent the prohibition 
contained in section 1202.
    ``(b) Gathering or Use of Information Obtained Through Other 
Means.--Nothing in this chapter shall restrict any person from 
independently gathering information or using information obtained by 
means other than extracting it from a collection of information 
gathered, organized, or maintained by another person through the 
investment of substantial monetary or other resources.
    ``(c) Use of Information for Verification.--Nothing in this chapter 
shall restrict any person from using a collection of information within 
any entity or organization, for the sole purpose of verifying the 
accuracy of information independently gathered, organized, or 
maintained by that person. Under no circumstances shall the information 
so used be extracted from the original collection and made available to 
others in a manner that harms the actual or potential market for the 
collection of information from which it is extracted or used.
    ``(d) Nonprofit Educational, Scientific, or Research Uses.--Nothing 
in this chapter shall restrict any person from extracting or using 
information for nonprofit educational, scientific, or research purposes 
in a manner that does not harm the actual or potential market for the 
product or service referred to in section 1202.
    ``(e) News Reporting.--Nothing in this chapter shall restrict any 
person from extracting or using information for the sole purpose of 
news reporting, including news gathering, dissemination, and comment, 
unless the information so extracted or used is time sensitive, has been 
gathered by a news reporting entity for distribution to a particular 
market, has not yet been distributed to that market, and the extraction 
or use is part of a consistent pattern engaged in for the purpose of 
direct competition in that market.
    ``(f) Transfer of Copy.--Nothing in this chapter shall restrict the 
owner of a particular lawfully made copy of all or part of a collection 
of information from selling or otherwise disposing of the possession of 
that copy.
``Sec. 1204. Exclusions
    ``(a) Government Collections of Information.--
            ``(1) Exclusion.--Protection under this chapter shall not 
        extend to collections of information gathered, organized, or 
        maintained by or for a government entity, whether Federal, 
        State, or local, including any employee or agent of such 
        entity, or any person exclusively licensed by such entity, 
        within the scope of the employment, agency, or license. Nothing 
        in this subsection shall preclude protection under this chapter 
        for information gathered, organized, or maintained by such an 
agent or licensee that is not within the scope of such agency or 
license, or by a Federal or State educational institution in the course 
of engaging in education or scholarship.
            ``(2) Exception.--The exclusion under paragraph (1) does 
        not apply to any information required to be collected and 
        disseminated--
                    ``(A) under the Securities Exchange Act of 1934 by 
                a national securities exchange, a registered securities 
                association, or a registered securities information 
                processor, subject to section 1205(g) of this title; or
                    ``(B) under the Commodity Exchange Act by a 
                contract market, subject to section 1205(g) of this 
                title.
    ``(b) Computer Programs.--
            ``(1) Protection not extended.--Subject to paragraph (2), 
        protection under this chapter shall not extend to computer 
        programs, including, but not limited to, any computer program 
        used in the manufacture, production, operation, or maintenance 
        of a collection of information, or any element of a computer 
        program necessary to its operation.
            ``(2) Incorporated collections of information.--A 
        collection of information that is otherwise subject to 
        protection under this chapter is not disqualified from such 
        protection solely because it is incorporated into a computer 
        program.
``Sec. 1205. Relationship to other laws
    ``(a) Other Rights Not Affected.--Subject to subsection (b), 
nothing in this chapter shall affect rights, limitations, or remedies 
concerning copyright, or any other rights or obligations relating to 
information, including laws with respect to patent, trademark, design 
rights, antitrust, trade secrets, privacy, access to public documents, 
and the law of contract.
    ``(b) Preemption of State Law.--On or after the effective date of 
this chapter, all rights that are equivalent to the rights specified in 
section 1202 with respect to the subject matter of this chapter shall 
be governed exclusively by Federal law, and no person is entitled to 
any equivalent right in such subject matter under the common law or 
statutes of any State. State laws with respect to trademark, design 
rights, antitrust, trade secrets, privacy, access to public documents, 
and the law of contract shall not be deemed to provide equivalent 
rights for purposes of this subsection.
    ``(c) Relationship to Copyright.--Protection under this chapter is 
independent of, and does not affect or enlarge the scope, duration, 
ownership, or subsistence of, any copyright protection or limitation, 
including, but not limited to, fair use, in any work of authorship that 
is contained in or consists in whole or part of a collection of 
information. This chapter does not provide any greater protection to a 
work of authorship contained in a collection of information, other than 
a work that is itself a collection of information, than is available to 
that work under any other chapter of this title.
    ``(d) Antitrust.--Nothing in this chapter shall limit in any way 
the constraints on the manner in which products and services may be 
provided to the public that are imposed by Federal and State antitrust 
laws, including those regarding single suppliers of products and 
services.
    ``(e) Licensing.--Nothing in this chapter shall restrict the rights 
of parties freely to enter into licenses or any other contracts with 
respect to the use of collections of information.
    ``(f) Communications Act of 1934.--Nothing in this chapter shall 
affect the operation of the provisions of the Communications Act of 
1934 (47 U.S.C. 151 et seq.), or shall restrict any person from 
extracting or using subscriber list information, as such term is 
defined in section 222(f)(3) of the Communications Act of 1934 (47 
U.S.C. 222(f)(3)), for the purpose of publishing telephone directories 
in any format.
    ``(g) Securities and Commodities Market Information.--
            ``(1) Federal agencies and acts.--Nothing in this Act shall 
        affect--
                    ``(A) the operation of the provisions of the 
                Securities Exchange Act of 1934 (15 U.S.C. 58a et seq.) 
                or the Commodity Exchange Act (7 U.S.C. 1 et seq.), 
                including the execution of the finding of Congress that 
                it is in the public interest and appropriate for the 
                protection of investors and the maintenance of fair and 
                orderly markets to assure the availability to brokers, 
                dealers, and investors of market information;
                    ``(B) the obligations and rights of self-regulatory 
                organizations, members of such organizations, 
                securities information processors, brokers, and dealers 
                under the provisions of the Securities and Exchange Act 
                of 1934 and the rules and regulations promulgated under 
                such Act, including the obligations and rights of self-
                regulatory organizations to make market information 
                available on fair and reasonable terms, and terms that 
                are not unreasonably discriminatory; or
                    ``(C) the jurisdiction or authority of the 
                Securities and Exchange Commission and the Commodity 
                Futures Trading Commission.
            ``(2) Prohibition.--Notwithstanding section 1203, nothing 
        in this chapter shall permit the extraction, use, resale, or 
        other disposition of real time market information except as the 
        Securities Exchange Act of 1934, the Commodity Exchange Act, 
        and the rules and regulations promulgated under such Acts may 
        otherwise provide. Nothing in section 1203(e) shall be 
        construed to permit any person to extract or use real time 
        market information in a manner that constitutes a market 
        substitute for a real time market data service (including the 
        real time systematic updating of or display of a substantial 
        part of market information) provided on a real time basis.
            ``(3) Definition.--As used in this subsection, the term 
        `market information' means information relating to quotations 
        for and transactions in securities or commodities that is 
        collected, processed, distributed, or published--
                    ``(A) pursuant to the provisions of the Securities 
                Exchange Act of 1934 (15 U.S.C. 58a et seq.); or
                    ``(B) by a contract market that is designated by 
                the Commodity Futures Trading Commission under the 
                Commodity Exchange Act (7 U.S.C. 1 et seq.) and the 
                rules and regulations under such Act.
``Sec. 1206. Civil remedies
    ``(a) Civil Actions.--Any person who is injured by a violation of 
section 1202 may bring a civil action for such a violation in an 
appropriate United States district court without regard to the amount 
in controversy, except 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 under this section 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 a violation of section 1202. Any such injunction 
may be served anywhere in the United States on the person enjoined, and 
may be enforced by proceedings in contempt or otherwise by any United 
States district court having jurisdiction over that person.
    ``(c) Impoundment.--At any time while an action under this section 
is pending, the court may order the impounding, on such terms as it 
deems reasonable, of all copies of contents of a collection of 
information extracted or used in violation of section 1202, 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 1202, order the 
remedial modification or destruction of all copies of contents of a 
collection of information extracted or used in violation of section 
1202, 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 1202 has been 
established in any civil action arising under this section, the 
plaintiff shall be entitled to recover any damages sustained by the 
plaintiff and defendant's profits not taken into account in computing 
the damages sustained by the plaintiff. 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 gross revenue only and the defendant shall be 
required to prove all elements of cost or deduction claims. 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. The court in its 
discretion may award reasonable costs and attorney's fees to the 
prevailing party and shall award such costs and fees where it 
determines that an action was brought under this chapter in bad faith 
against a nonprofit educational, scientific, or research institution, 
library, or archives, or an employee or agent of such an entity, acting 
within the scope of his or her employment.
    ``(e) Reduction or Remission of Monetary Relief for Nonprofit 
Educational, Scientific, or Research Institutions.--The court shall 
reduce or remit entirely monetary relief under subsection (d) in any 
case in which a defendant believed and had reasonable grounds for 
believing that his or her conduct was permissible under this chapter, 
if the defendant was an employee or agent of a nonprofit educational, 
scientific, or research institution, library, or archives acting within 
the scope of his or her employment.
    ``(f) Actions Against United States Government.--Subsections (b) 
and (c) shall not apply to any action against the United States 
Government.
    ``(g) Relief Against State Entities.--The relief provided under 
this section shall be available against a State governmental entity to 
the extent permitted by applicable law.
``Sec. 1207. Criminal offenses and penalties
    ``(a) Violation.--
            ``(1) In general.--Any person who violates section 1202 
        willfully, and--
                    ``(A) does so for direct or indirect commercial 
                advantage or financial gain; or
                    ``(B) causes loss or damage aggregating $10,000 or 
                more in any 1-year period to the person who gathered, 
                organized, or maintained the information concerned,
        shall be punished as provided in subsection (b).
            ``(2) Inapplicability.--This section shall not apply to an 
        employee or agent of a nonprofit educational, scientific, or 
        research institution, library, or archives acting within the 
        scope of his or her employment.
    ``(b) Penalties.--An offense under subsection (a) shall be 
punishable by a fine of not more than $250,000 or imprisonment for not 
more than 5 years, or both. A second or subsequent offense under 
subsection (a) shall be punishable by a fine of not more than $500,000 
or imprisonment for not more than 10 years, or both.
``Sec. 1208. Limitations on actions
    ``(a) Criminal Proceedings.--No criminal proceeding shall be 
maintained under this chapter unless it is commenced within three years 
after the cause of action arises.
    ``(b) Civil Actions.--No civil action shall be maintained under 
this chapter unless it is commenced within three years after the cause 
of action arises or claim accrues.
    ``(c) Additional Limitation.--No criminal or civil action shall be 
maintained under this chapter for the extraction or use of all or a 
substantial part of a collection of information that occurs more than 
15 years after the investment of resources that qualified the portion 
of the collection of information for protection under this chapter that 
is extracted or used.''.

SEC. 4. CONFORMING AMENDMENT.

    The table of chapters for title 17, United States Code, is amended 
by adding at the end the following:

``12. Misappropriation of Collections of Information........    1201''.

SEC. 5. CONFORMING AMENDMENTS TO TITLE 28, UNITED STATES CODE.

    (a) District Court Jurisdiction.--Section 1338 of title 28, United 
States Code, is amended--
            (1) in the section heading by inserting ``misappropriations 
        of collections of information,'' after ``trade-marks,''; and
            (2) by adding at the end the following:
    ``(d) The district courts shall have original jurisdiction of any 
civil action arising under chapter 12 of title 17, relating to 
misappropriation of collections of information. Such jurisdiction shall 
be exclusive of the courts of the States, except that any action 
against a State governmental entity may be brought in any court that 
has jurisdiction over claims against such entity.''.
    (b) Conforming Amendment.--The item relating to section 1338 in the 
table of sections for chapter 85 of title 28, United States Code, is 
amended by inserting ``misappropriations of collections of 
information,'' after ``trade-marks,''.
    (c) Court of Federal Claims Jurisdiction.--Section 1498(e) of title 
28, United States Code, is amended by inserting ``and to protections 
afforded collections of information under chapter 12 of title 17'' 
after ``chapter 9 of title 17''.

SEC. 6. EFFECTIVE DATE.

    (a) In General.--This Act and the amendments made by this Act shall 
take effect on the date of the enactment of this Act, and shall apply 
to acts committed on or after that date.
    (b) Prior Acts Not Affected.--No person shall be liable under 
chapter 12 of title 17, United States Code, as added by section 3 of 
this Act, for the use of information lawfully extracted from a 
collection of information prior to the effective date of this Act, by 
that person or by that person's predecessor in interest.
                                 <all>