[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