[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3261 Reported in House (RH)]
Union Calendar No. 252
108th CONGRESS
2d Session
H. R. 3261
[Report No. 108-421, Parts I and II]
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
February 11, 2004
Reported from the Committee on the Judiciary with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
February 11, 2004
Referred sequentially to the Committee on Energy and Commerce for a
period ending not later than March 12, 2004, for consideration of such
provisions of the bill and amendment as fall within the jurisdiction of
that committee pursuant to clause 1(f), rule X
March 11, 2004
Additional sponsors: Mr. Wexler, Mr. Turner of Ohio, Mr. Portman, and
Mr. Delahunt
March 11, 2004
Reported adversely from the Committee on Energy and Commerce with an
amendment, committed to the Committee of the Whole House on the State
of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on October
8, 2003]
_______________________________________________________________________
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) 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 schedule and program
information for 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.
(5) 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.
(6) 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.
(7) Information.--The term ``information'' means facts,
data, works of authorship, or any other intangible material
capable of being generated or gathered.
(8) 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.
(9) 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.
(10) Maintain.--To ``maintain'' a database means to update,
validate, or supplement the information contained in the
database.
(11) 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 whether the limits imposed by subparagraph (B)(ii)
have been exceeded.
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 other person (including a successor in interest) or that other
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 or make available the database or 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--
(1) independently generating or gathering information
obtained by means other than extracting it from a database
generated, gathered, or maintained by another person; and
(2) making that information available in commerce.
(b) Acts of Making Available in Commerce by Nonprofit Scientific or
Research Institutions.--Subject to section 9, the making available in
commerce of a substantial part of a database by a nonprofit scientific
or research institution, including an employee or agent of such
institution acting within the scope of such employment or agency, for
nonprofit scientific or 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 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 subsection 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
and after the effective date of this Act, no State statute,
rule, regulation, or common law doctrine that prohibits or
otherwise regulates conduct that is prohibited or regulated
under 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 Act 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 to the Federal Trade
Commission, the United States Patent and Trademark Office, and
the Register of Copyrights, in accordance with subsection
(i)(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 Act 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.--
(1) Limitation on liability.--No provider of an interactive
computer service shall be liable under section 3 for making
available information that is provided by another information
content provider.
(2) Definitions.--In this subsection, the terms
``interactive computer service'' and ``information content
provider'' have the meanings given those terms in section
230(f) of the Communications Act of 1934 (47 U.S.C. 230(f)).
(3) Construction.--For purposes of section 230 of the
Communications Act of 1934 and any other provision of law, the
provisions of this Act shall not be construed to be a law
pertaining to intellectual property.
(i) Oversight of Civil Remedies by FTC and PTO.--
(1) Notice.--The Federal Trade Commission, the Director of
the United States Patent and Trademark Office, and the Register
of Copyrights 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, the Director
of the United States Patent and Trademark Office, and the
Register of Copyrights 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 curiae briefs.--The Federal Trade Commission,
the Director of the United States 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, the Director of
the United States Patent and Trademark Office, and the Register
of Copyrights shall, within 18 months after the date of the
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 the Committee on Commerce, Science, and Transportation of
the Senate on their operations under this subsection. Such
reports shall include--
(A) a summary of any briefs filed under paragraph
(3);
(B) an explanation of the impact, if any, of the
judicial decisions reviewed on existing laws and
policies within the jurisdiction of the Commission, the
Director of the Patent and Trademark Office, or the
Register of Copyrights, as the case may be; and
(C) any recommendations for legislative or other
changes that the Commission, the Director of the Patent
and Trademark Office, or the Register of Copyrights, as
the case may be, 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. EXCLUSION FROM LIABILITY FOR EDUCATIONAL INSTITUTIONS AND
RESEARCH LABORATORIES.
(a) Exclusion.--Except as provided in subsection (d), no liability
shall be imposed under this Act on--
(1) any accredited nonprofit postsecondary educational
institution or any nonprofit research laboratory,
(2) any employee of such educational institution or
laboratory acting within the scope of his or her employment, or
(3) any student enrolled in such educational institution
acting in furtherance of the supervised activities or programs
of the institution--
by reason of activities undertaken for nonprofit education, scientific,
or research purposes.
(b) Accreditation.--For purposes of this section, accreditation
shall be as determined by a regional or national accrediting agency
recognized by the Council on Higher Accreditation or the United States
Department of Education.
(c) Nonprofit Research Laboratory.--For purposes of this section, a
nonprofit research laboratory is a nonprofit research organization that
is primarily engaged in basic or applied scientific research, or both,
and that is a qualified organization as defined in section 41(b)(6)(B)
of the Internal Revenue Code of 1986 for purposes of the research
credit determined under section 41 of such Code.
(d) Exception.--Subsection (a) does not apply to an institution,
laboratory, employee of such institution or laboratory, or student of
such institution to the extent that the institution, laboratory,
employee, or student makes available substantially all of a database in
direct commercial competition with a person who made the substantial
expenditure described in section 3(a)(1).
SEC. 10. 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 on or after the date of the
enactment of this Act 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. 11. NONSEVERABILITY.
(a) In General.--If the Supreme Court of the United States holds
that the provisions of section 3, relating to prohibition against
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.
Union Calendar No. 252
108th CONGRESS
2d Session
H. R. 3261
[Report No. 108-421, Parts I and II]
_______________________________________________________________________
A BILL
To prohibit the misappropriation of certain databases.
_______________________________________________________________________
February 11, 2004
Reported from the Committee on the Judiciary with an amendment
Referred sequentially to the Committee on Energy and Commerce for a
period ending not later than March 12, 2004, for consideration of such
provisions of the bill and amendment as fall within the jurisdiction of
that committee pursuant to clause 1(f), rule X
March 11, 2004
Reported adversely from the Committee on Energy and Commerce with an
amendment, committed to the Committee of the Whole House on the State
of the Union, and ordered to be printed