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H.R.3261
Database and Collections of Information Misappropriation Act (Introduced in House)
HR 3261 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.
(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.
(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.
(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.
(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.
(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.
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