[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3261 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 3261

         To prohibit the misappropriation of certain databases.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 8, 2003

Mr. Coble (for himself, Mr. Smith of Texas, Mr. Hobson, Mr. Greenwood, 
Mr. Tauzin, and Mr. Sensenbrenner) introduced the following bill; which 
             was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
         To prohibit the misappropriation of certain 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 and Collections of 
Information Misappropriation Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Collective work.--The term ``collective work'' means a 
        work, such as a periodical issue, anthology, or encyclopedia, 
        in which a number of contributions, constituting separate and 
        independent works in themselves, are assembled into a 
        collective whole.
            (2) Commerce.--The term ``commerce'' means all commerce 
        which may be lawfully regulated by the Congress.
            (3) Compilation.--The term ``compilation'' means a work 
        formed by the collection and assembling of preexisting 
        materials or of data that are selected, coordinated, or 
        arranged in such a way that the resulting work as a whole 
        constitutes an original work of authorship. The term 
        ``compilation'' includes collective works.
            (4) Covered entity.--The term ``covered entity'' means a 
        legal entity that is--
                    (A) a telecommunications carrier engaged in the 
                provision of a telecommunications service;
                    (B) a person engaged in the business of providing 
                an Internet access service;
                    (C) a person engaged in the business of providing 
                an Internet information location tool; and
                    (D) a person similarly engaged in the transmission, 
                storage, retrieval, hosting, formatting, or translation 
                (or any combination thereof) of a communication made by 
                another person, without selection or alteration of the 
                content of the communication, except that such person's 
                deletion of a particular communication or material made 
                available in commerce by another person in violation of 
                section 3 shall not constitute such selection or 
                alteration of the content of the communication.
            (5) Database.--
                    (A) In general.--Subject to subparagraph (B), the 
                term ``database'' means a collection of a large number 
                of discrete items of information produced for the 
                purpose of bringing such discrete items of information 
                together in one place or through one source so that 
                persons may access them.
                    (B) Exclusions.--The term database does not include 
                any of the following:
                            (i) A work of authorship, other than a 
                        compilation or a collective work.
                            (ii) A collection of information that 
                        principally performs the function of 
                        addressing, routing, forwarding, transmitting, 
                        or storing digital online communications or 
                        receiving access to connections for digital 
                        communications, except that the fact that a 
                        collection of information includes or consists 
                        of online location designations shall not by 
                        itself be the basis for applying this clause.
                            (iii) A collection of information gathered, 
                        organized, or maintained to perform the 
                        function of providing multichannel audio or 
                        video programming.
                            (iv) A collection of information gathered, 
                        organized, or maintained to register domain 
                        name registrant contact data maintained by a 
                        domain name registration authority, unless such 
                        registration authority takes appropriate steps 
                        to ensure the integrity and accuracy of such 
                        information and provides real-time, 
                        unrestricted, and fully searchable public 
                        access to the information contained in such 
                        collection of information.
                    (C) Discrete sections.--The fact that a database is 
                a subset of a database shall not preclude such subset 
                from treatment as a database under this Act.
            (6) Domain name.--The term ``domain name'' means any 
        alphanumeric designation which is registered with or assigned 
        by any domain name registrar, domain name registry, or other 
        domain name registration authority as part of an electronic 
        address on the Internet.
            (7) In concert.--A person acts ``in concert'' with another 
        person who makes a database available in commerce if the act of 
        making available in commerce is planned, arranged, coordinated, 
        adjusted, agreed upon, or settled between the two persons 
        acting together, in pursuance of some design or in accordance 
        with some scheme.
            (8) Information.--The term ``information'' means facts, 
        data, works of authorship, or any other intangible material 
        capable of being generated or gathered.
            (9) Internet.--The term ``Internet'' means the combination 
        of computer facilities and electromagnetic transmission media, 
        and related equipment and software, comprising the 
        interconnected worldwide network of computer networks that 
        employ the Transmission Control Protocol/Internet Protocol or 
        any successor protocol to transmit information.
            (10) Internet access service.--The term ``Internet access 
        service'' means a service that enables users to access content, 
        information, electronic mail, or other services offered over 
        the Internet, and may also include access to proprietary 
        content, information, and other services as part of a package 
        of services offered to consumers. Such term does not include 
        telecommunications services.
            (11) Internet information location tool.--The term 
        ``Internet information location tool'' means a service that 
        refers or links users to an online location on the World Wide 
        Web. Such term includes directories, indices, references, 
        pointers, and hypertext links.
            (12) Legal entity.--The term ``legal entity'' means a 
        person, other than an individual, including a firm, 
        corporation, union, or other organization, which is organized 
        under the laws of the United States, a State, the District of 
        Columbia, or any commonwealth, territory, or possession of the 
United States, or the laws of a foreign country.
            (13) Maintain.--To ``maintain'' a database means to update, 
        validate, or supplement the information contained in the 
        database.
            (14) Making available in commerce to others.--The term 
        ``making available in commerce to others'' means making 
        available in commerce to--
                    (A) a substantial number of members of the public; 
                or
                    (B) a number of persons that extends beyond--
                            (i) a family and its social acquaintances; 
                        or
                            (ii) those who could reasonably anticipate 
                        to have a database made available in commerce 
                        to them without a customary commercial 
                        relationship.
                A court may take into account repeated acts directed to 
                different persons by the same or concerted parties in 
                determining the limits imposed by subparagraph (B)(ii) 
                have been exceeded.
            (15) Telecommunications.--The term ``telecommunications'' 
        means the transmission, between or among points specified by 
        the user, of information of the user's choosing, without change 
        in the form or content of the information as sent and received.
            (16) Telecommunications carrier.--The term 
        ``telecommunications carrier'' means any provider of 
        telecommunications services, except that such term does not 
        include any person that, in the ordinary course of its 
        operations, makes telephones available to the public or to 
        transient users of its premises, for interstate telephone calls 
        using a provider of operator services.
            (17) Telecommunications service.--The term 
        ``telecommunications service'' means the offering of 
        telecommunications for a fee directly to the public, or to such 
        classes of users as to be effectively available directly to the 
        public, regardless of the facilities used.

SEC. 3. PROHIBITION AGAINST MISAPPROPRIATION OF DATABASES.

    (a) Liability.--Any person who makes available in commerce to 
others a quantitatively substantial part of the information in a 
database generated, gathered, or maintained by another person, knowing 
that such making available in commerce is without the authorization of 
that person (including a successor in interest) or that person's 
licensee, when acting within the scope of its license, shall be liable 
for the remedies set forth in section 7 if--
            (1) the database was generated, gathered, or maintained 
        through a substantial expenditure of financial resources or 
        time;
            (2) the unauthorized making available in commerce occurs in 
        a time sensitive manner and inflicts injury on the database or 
        a product or service offering access to multiple databases; and
            (3) the ability of other parties to free ride on the 
        efforts of the plaintiff would so reduce the incentive to 
        produce the product or service that its existence or quality 
        would be substantially threatened.
    (b) Injury.--For purposes of subsection (a), the term ``inflicts an 
injury'' means serving as a functional equivalent in the same market as 
the database in a manner that causes the displacement, or the 
disruption of the sources, of sales, licenses, advertising, or other 
revenue.
    (c) Time sensitive.--In determining whether an unauthorized making 
available in commerce occurs in a time sensitive manner, the court 
shall consider the temporal value of the information in the database, 
within the context of the industry sector involved.

SEC. 4. PERMITTED ACTS.

    (a) Independently Generated or Gathered Information.--This Act 
shall not restrict any person from independently generating or 
gathering information obtained by means other than extracting it from a 
database generated, gathered, or maintained by another person and 
making that information available in commerce.
    (b) Acts of Making Available in Commerce by Nonprofit Educational, 
Scientific, or Research Institutions.--The making available in commerce 
of a substantial part of a database by a nonprofit educational, 
scientific, and research institution, including an employee or agent of 
such institution acting within the scope of such employment or agency, 
for nonprofit educational, scientific, and research purposes shall not 
be prohibited by section 3 if the court determines that the making 
available in commerce of the information in the database is reasonable 
under the circumstances, taking into consideration the customary 
practices associated with such uses of such database by nonprofit 
educational, scientific, or research institutions and other factors 
that the court determines relevant.
    (c) Hyperlinking.--Nothing in this Act shall restrict the act of 
hyperlinking of one online location to another or the providing of a 
reference or pointer (including such reference or pointer in a 
directory or index) to a database.
    (d) News Reporting.--Nothing in this Act shall restrict any person 
from making available in commerce information for the primary purpose 
of news reporting, including news and sports gathering, dissemination, 
and comment, unless the information is time sensitive and has been 
gathered by a news reporting entity, and making available in commerce 
the information is part of a consistent pattern engaged in for the 
purpose of direct competition.

SEC. 5. EXCLUSIONS.

    (a) Government Information.--
            (1) In general.--Except as provided in paragraph (2), 
        protection under this Act shall not extend to--
                    (A) a database generated, gathered, organized, or 
                maintained by a Federal, State, or local governmental 
                entity, or by an employee or agent of such an entity, 
                acting within the scope of such employment or agency; 
                or
                    (B) a database generated, gathered, or maintained 
                by an entity pursuant to and to the extent required by 
                a Federal statute or regulation requiring such a 
                database.
            (2) Exception.--Nothing in this section shall preclude 
        protection under this Act for a database gathered, organized, 
        or maintained by an employee or agent of an entity described in 
        paragraph (1) that is acting outside the scope of such 
        employment or agency, or by a Federal, State, or local 
        educational institution, or its employees or agents, in the 
        course of engaging in education, research, or scholarship.
    (b) Computer Programs.--
            (1) Protection not extended.--Subject to paragraph (2), 
        protection under section 3 shall not extend to computer 
        programs, including any computer program used in the 
        manufacture, production, operation, or maintenance of a 
        database, or to any element of a computer program necessary to 
        its operation.
            (2) Incorporated databases.--A database that is otherwise 
        subject to protection under section 3 is not disqualified from 
        such protection solely because it resides in a computer 
        program, so long as the collection of information functions as 
        a database within the meaning of this Act.

SEC. 6. RELATION TO OTHER LAWS.

    (a) Other Rights Not Affected.--
            (1) In general.--Subject to subsection (b), nothing in this 
        Act shall affect rights, limitations, or remedies concerning 
        copyright, patent, trademark, design rights, antitrust, trade 
        secrets, privacy, access to public documents, and misuse.
            (2) Right of contract.--Notwithstanding subsection (b), 
        nothing in this Act shall affect rights, limitations, or 
        remedies concerning the common law right of contract.
    (b) Preemption of State Law.--
            (1) Laws regulating conduct that is subject of the act.--On 
        or after the effective date of this Act, no State statute, 
        rule, regulation, or common law doctrine that prohibits or 
        otherwise regulates conduct that is the subject of this Act 
        shall be effective.
            (2) Clarification of inapplicability to cases not involving 
        commercial competition.--Paragraph (1) shall not apply to 
        preempt actions under State law against a person for taking 
        actions that--
                    (A)(i) disrupt the sources of data supply to a 
                database; or
                    (ii) substantially impair the perceived accuracy, 
                currency, or completeness of data in a database by 
                inaccurate, untimely, or incomplete replication and 
                distribution of such data; and
                    (B) do not involve the person making available in 
                commerce the data from such database in competition 
                with such database.
    (c) Communications Act of 1934.--Nothing in this Act shall affect 
the operation of section 222(e) or any other provision of the 
Communications Act of 1934 (47 U.S.C. 151 et seq.), or shall restrict 
any person from making available in commerce or extracting subscriber 
list information, as such term is defined in section 222(h)(3) of the 
Communications Act of 1934 (47 U.S.C. 222(h)(3)).
    (d) Securities.--Nothing in this title shall--
            (1) affect the operation of the Securities Act of 1933 (15 
        U.S.C. 78a et seq.), the Securities Exchange Act of 1934 (15 
        U.S.C. 78a et seq.), the Public Utility Holding Company Act of 
        1935 (15 U.S.C. 79a et seq.), the Trust Indenture Act of 1939 
        (15 U.S.C. 77aaa et seq.), the Investment Company Act of 1940 
        (15 U.S.C. 80a-1 et seq.), the Investment Advisers Act of 1940 
        (15 U.S.C. 80b et seq.), or the Securities Investor Protection 
        Act of 1970 (15 U.S.C. 78aaa et seq.), or the rules or 
        regulations thereunder;
            (2) affect the authority of the Securities and Exchange 
        Commission; or
            (3) apply to information with respect to quotations for, or 
        indications, orders, or transactions in, securities.
    (e) Misuse.--Judicial doctrines of misuse shall apply under this 
Act.

SEC. 7. CIVIL REMEDIES.

    (a) Civil Actions.--
            (1) Commencement of actions.--Any person who is injured by 
        a violation of section 3 may bring a civil action for such a 
        violation in an appropriate United States district court. Any 
        action against a State governmental entity may be brought in 
        any court that has jurisdiction over claims against such 
        entity.
            (2) Notice of commencement of actions and appeals.--Any 
        person who brings an action for such a violation, or who files 
        an appeal from any final decision on such an action, shall 
        transmit notice of such action or appeal with the Federal Trade 
        Commission and the Patent and Trademark Office in accordance 
        with subsection (j)(1).
    (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 or restrain a violation or attempted violation 
of section 3. 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) Monetary Relief.--
            (1) Actual damages and attributable profits.--When a 
        violation of section 3 has been established in any civil action 
        arising under this section, the plaintiff shall be entitled to 
        recover the actual damages sustained by the plaintiff as a 
        result of the violation and any profits of the defendant that 
        are attributable to the violation and are not taken into 
        account in computing the actual 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.
            (2) Additional damages.--In addition to actual damages, the 
        court may enter judgment for an additional amount not exceeding 
        2 times such actual damages after considering the following 
        factors:
                    (A) Whether the plaintiff notified the defendant of 
                the alleged violation and the defendant continued to 
                violate section 3.
                    (B) The willfulness of the defendant's conduct.
                    (C) Whether the defendant has a history of database 
                misappropriation.
                    (D) The defendant's ability to pay.
                    (E) Whether the alleged violation had a serious 
                negative financial impact on the plaintiff.
                    (F) Any good faith effort by the defendant to 
                rectify the misappropriation.
                    (G) Whether the assessment of additional damages is 
                necessary in order to deter future violations.
    (d) Impoundment.--At any time while an action under this section is 
pending, including an action seeking to enjoin a violation, the court 
may order the impounding, on such terms as it deems reasonable, of all 
copies of contents of a database made available in commerce or 
attempted to be made available in commerce potentially in violation of 
section 3, 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 or 
attempted violation of section 3, order the remedial modification or 
destruction of all copies of contents of a database made available in 
commerce or attempted to be made available in commerce in violation of 
section 3, and of all masters, tapes, disks, diskettes, or other 
articles by means of which such copies may be reproduced.
    (e) Costs and Attorney's Fees.--The court in its discretion may 
award reasonable costs and attorney's fees to the prevailing party. The 
court shall award costs and fees if it determines that an action was 
brought or a defense was raised under this chapter in bad faith.
    (f) Actions Against United States Government.--Subsections (b) and 
(d) 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.
    (h) Limitation on Liability of Certain Entities.--A covered entity 
shall not be liable for a violation under section 3 unless--
            (1) the person who made the database available in commerce 
        in violation of section 3 is an officer, employee, or agent of 
        the covered entity acting within the scope of the actor's 
        duties or agency;
            (2) an officer, employee, or agent of the covered entity, 
        acting within the scope of the actor's duties or agency, 
        actively directs or induces the act of making available in 
        commerce in violation of section 3 by another person, or acts 
        in concert with the person who made the database available in 
        commerce in violation of section 3; or
            (3) the covered entity receives a financial gain or benefit 
        that--
                    (A) is directly attributable to the making 
                available in commerce of the database, or the content 
                thereof, in violation of section 3; and
                    (B) is in excess of the ordinary compensation for 
                the rendering of the services described in subparagraph 
                (A), (B), (C) or (D) of section 2(2) that are provided 
                by the covered entity.
    (i) Oversight of Civil Remedies by FTC and PTO.--
            (1) Notice.--The Federal Trade Commission and the Patent 
        and Trademark Office shall, by regulation, prescribe the form 
        and procedures by which persons shall transmit the notices 
        required by subsection (a)(2).
            (2) Oversight.--The Federal Trade Commission and the Patent 
        and Trademark Office shall review the actions conducted under 
        this section for the purposes of identifying instances in which 
        judicial interpretation of this Act adversely or otherwise 
        materially affects the administration of laws and policies 
        within their respective jurisdictions.
            (3) Amicus curea briefs.--The Federal Trade Commission, the 
        Patent and Trademark Office, and the Register of Copyrights 
        may, in appropriate instances, file briefs as friends of the 
        court in appeals from final decisions of actions under this 
        section.
            (4) Reports.--The Federal Trade Commission and the Patent 
        and Trademark Office shall, within 18 months after the date of 
        enactment of this Act, each transmit a report to the Committee 
        on the Judiciary and the Committee on Energy and Commerce of 
        the House of Representatives and the Committee on the Judiciary 
        and Committee on Commerce, Science, and Transportation of the 
        Senate on its operations under this subsection. Such reports 
        shall include--
                    (A) a summary of any briefs filed;
                    (B) an explanation of the impact, if any, of the 
                judicial decisions reviewed on existing laws and 
                policies within its jurisdiction; and
                    (C) any recommendations for legislative or other 
                changes that the agency considers appropriate.

SEC. 8. LIMITATION ON ACTIONS.

    No civil action shall be maintained under this Act unless it is 
commenced within 2 years after the cause of action arises or claim 
accrues.

SEC. 9. EFFECTIVE DATE.

    (a) In General.--This Act shall take effect on the date of the 
enactment of this Act, and shall apply to acts of making available in 
commerce on or after that date with respect to databases existing 
before, on, or after that date.
    (b) Prior Acts Not Affected.--No person shall be liable under 
section 3 for making available in commerce after the date of the 
enactment of this Act of a quantitatively substantial part of the 
information in a database in violation of that section, when the 
information was lawfully extracted from the database before the date of 
the enactment of this Act, by that person or by that person's 
predecessor in interest.

SEC. 10. NONSEVERABILITY.

    (a) In General.--If the Supreme Court of the United States holds 
that the provisions of section 3, relating to prohibition of 
misappropriation of databases, are invalid under Article I of, or the 
First Amendment to, the Constitution of the United States, then this 
Act is repealed, effective as of the date of the Supreme Court 
decision.
    (b) Termination.--Subsection (a) shall cease to be effective at the 
end of the 10-year period beginning on the date of the enactment of 
this Act.
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