IB 

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 
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[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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Database and Collections 

5 of Information Misappropriation Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act:

8 (1) COLLECTIVE WORK.—The term ‘‘collective 

9 work’’ means a work, such as a periodical issue, an10 thology, or encyclopedia, in which a number of con11 tributions, constituting separate and independent 

12 works in themselves, are assembled into a collective 

13 whole. 

14 (2) COMMERCE.—The term ‘‘commerce’’ means 

15 all commerce which may be lawfully regulated by the 

16 Congress. 

17 (3) COMPILATION.—The term ‘‘compilation’’ 

18 means a work formed by the collection and assembling 

19 of preexisting materials or of data that are selected, 

20 coordinated, or arranged in such a way that the re-
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1 sulting work as a whole constitutes an original work 

2 of authorship. The term ‘‘compilation’’ includes collec3 tive works. 

4 (4) DATABASE.—

5 (A) IN GENERAL.—Subject to subparagraph 

6 (B), the term ‘‘database’’ means a collection of a 

7 large number of discrete items of information 

8 produced for the purpose of bringing such dis9 crete items of information together in one place 

10 or through one source so that persons may access 

11 them. 

12 (B) EXCLUSIONS.—The term database does 

13 not include any of the following:

14 (i) A work of authorship, other than a 

15 compilation or a collective work. 

16 (ii) A collection of information that 

17 principally performs the function of ad18 dressing, routing, forwarding, transmitting, 

19 or storing digital online communications or 

20 receiving access to connections for digital 

21 communications, except that the fact that a 

22 collection of information includes or consists 

23 of online location designations shall not by 

24 itself be the basis for applying this clause. 
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1 (iii) A collection of information gath2 ered, organized, or maintained to perform 

3 the function of providing schedule and pro4 gram information for multichannel audio 

5 or video programming. 

6 (iv) A collection of information gath7 ered, organized, or maintained to register 

8 domain name registrant contact data main9 tained by a domain name registration au10 thority, unless such registration authority 

11 takes appropriate steps to ensure the integ12 rity and accuracy of such information and 

13 provides real-time, unrestricted, and fully 

14 searchable public access to the information 

15 contained in such collection of information. 

16 (C) DISCRETE SECTIONS.—The fact that a 

17 database is a subset of a database shall not pre18 clude such subset from treatment as a database 

19 under this Act. 

20 (5) DOMAIN NAME.—The term ‘‘domain name’’ 

21 means any alphanumeric designation which is reg22 istered with or assigned by any domain name reg23 istrar, domain name registry, or other domain name 

24 registration authority as part of an electronic address 

25 on the Internet. 
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1 (6) IN CONCERT.—A person acts ‘‘in concert’’ 

2 with another person who makes a database available 

3 in commerce if the act of making available in com4 merce is planned, arranged, coordinated, adjusted, 

5 agreed upon, or settled between the two persons acting 

6 together, in pursuance of some design or in accord7 ance with some scheme. 

8 (7) INFORMATION.—The term ‘‘information’’ 

9 means facts, data, works of authorship, or any other 

10 intangible material capable of being generated or 

11 gathered. 

12 (8) INTERNET.—The term ‘‘Internet’’ means the 

13 combination of computer facilities and electro14 magnetic transmission media, and related equipment 

15 and software, comprising the interconnected world16 wide network of computer networks that employ the 

17 Transmission Control Protocol/Internet Protocol or 

18 any successor protocol to transmit information. 

19 (9) LEGAL ENTITY.—The term ‘‘legal entity’’ 

20 means a person, other than an individual, including 

21 a firm, corporation, union, or other organization, 

22 which is organized under the laws of the United 

23 States, a State, the District of Columbia, or any com24 monwealth, territory, or possession of the United 

25 States, or the laws of a foreign country. 
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1 (10) MAINTAIN.—To ‘‘maintain’’ a database 

2 means to update, validate, or supplement the infor3 mation contained in the database.

4 (11) MAKING AVAILABLE IN COMMERCE TO OTH5 ERS.—The term ‘‘making available in commerce to 

6 others’’ means making available in commerce to—

7 (A) a substantial number of members of the 

8 public; or 

9 (B) a number of persons that extends be10 yond—

11 (i) a family and its social acquaint12 ances; or 

13 (ii) those who could reasonably antici14 pate to have a database made available in 

15 commerce to them without a customary 

16 commercial relationship. 

17 A court may take into account repeated acts directed 

18 to different persons by the same or concerted parties 

19 in determining whether the limits imposed by sub20 paragraph (B)(ii) have been exceeded.

21 SEC. 3. PROHIBITION AGAINST MISAPPROPRIATION OF 

22 DATABASES. 

23 (a) LIABILITY.—Any person who makes available in 

24 commerce to others a quantitatively substantial part of the 

25 information in a database generated, gathered, or main-
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1 tained by another person, knowing that such making avail2 able in commerce is without the authorization of that other 

3 person (including a successor in interest) or that other per4 son’s licensee, when acting within the scope of its license, 

5 shall be liable for the remedies set forth in section 7 if—

6 (1) the database was generated, gathered, or 

7 maintained through a substantial expenditure of fi8 nancial resources or time; 

9 (2) the unauthorized making available in com10 merce occurs in a time sensitive manner and inflicts 

11 injury on the database or a product or service offering 

12 access to multiple databases; and 

13 (3) the ability of other parties to free ride on the 

14 efforts of the plaintiff would so reduce the incentive 

15 to produce or make available the database or the 

16 product or service that its existence or quality would 

17 be substantially threatened. 

18 (b) INJURY.—For purposes of subsection (a), the term 

19 ‘‘inflicts an injury’’ means serving as a functional equiva20 lent in the same market as the database in a manner that 

21 causes the displacement, or the disruption of the sources, 

22 of sales, licenses, advertising, or other revenue. 

23 (c) TIME SENSITIVE.—In determining whether an un24 authorized making available in commerce occurs in a time 

25 sensitive manner, the court shall consider the temporal 
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1 value of the information in the database, within the context 

2 of the industry sector involved. 

3 SEC. 4. PERMITTED ACTS. 

4 (a) INDEPENDENTLY GENERATED OR GATHERED IN5 FORMATION.—This Act shall not restrict any person from—

6 (1) independently generating or gathering infor7 mation obtained by means other than extracting it 

8 from a database generated, gathered, or maintained 

9 by another person; and 

10 (2) making that information available in com11 merce. 

12 (b) ACTS OF MAKING AVAILABLE IN COMMERCE BY

13 NONPROFIT SCIENTIFIC OR RESEARCH INSTITUTIONS.—

14 Subject to section 9, the making available in commerce of 

15 a substantial part of a database by a nonprofit scientific 

16 or research institution, including an employee or agent of 

17 such institution acting within the scope of such employment 

18 or agency, for nonprofit scientific or research purposes shall 

19 not be prohibited by section 3 if the court determines that 

20 the making available in commerce of the information in 

21 the database is reasonable under the circumstances, taking 

22 into consideration the customary practices associated with 

23 such uses of such database by nonprofit scientific or re24 search institutions and other factors that the court deter25 mines relevant. 
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1 (c) HYPERLINKING.—Nothing in this Act shall restrict 

2 the act of hyperlinking of one online location to another 

3 or the providing of a reference or pointer (including such 

4 reference or pointer in a directory or index) to a database. 

5 (d) NEWS REPORTING.—Nothing in this Act shall re6 strict any person from making available in commerce infor7 mation for the primary purpose of news reporting, includ8 ing news and sports gathering, dissemination, and com9 ment, unless the information is time sensitive and has been 

10 gathered by a news reporting entity, and making available 

11 in commerce the information is part of a consistent pattern 

12 engaged in for the purpose of direct competition. 

13 SEC. 5. EXCLUSIONS. 

14 (a) GOVERNMENT INFORMATION.—

15 (1) IN GENERAL.—Except as provided in para16 graph (2), protection under this Act shall not extend 

17 to—

18 (A) a database generated, gathered, orga19 nized, or maintained by a Federal, State, or 

20 local governmental entity, or by an employee or 

21 agent of such an entity, acting within the scope 

22 of such employment or agency; or 

23 (B) a database generated, gathered, or 

24 maintained by an entity pursuant to and to the 
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1 extent required by a Federal statute or regula2 tion requiring such a database.

3 (2) EXCEPTION.—Nothing in this subsection 

4 shall preclude protection under this Act for a data5 base gathered, organized, or maintained by an em6 ployee or agent of an entity described in paragraph 

7 (1) that is acting outside the scope of such employ8 ment or agency, or by a Federal, State, or local edu9 cational institution, or its employees or agents, in the 

10 course of engaging in education, research, or scholar11 ship. 

12 (b) COMPUTER PROGRAMS.—

13 (1) PROTECTION NOT EXTENDED.—Subject to 

14 paragraph (2), protection under section 3 shall not 

15 extend to computer programs, including any com16 puter program used in the manufacture, production, 

17 operation, or maintenance of a database, or to any 

18 element of a computer program necessary to its oper19 ation. 

20 (2) INCORPORATED DATABASES.—A database 

21 that is otherwise subject to protection under section 3 

22 is not disqualified from such protection solely because 

23 it resides in a computer program, so long as the col24 lection of information functions as a database within 

25 the meaning of this Act. 
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1 SEC. 6. RELATION TO OTHER LAWS. 

2 (a) OTHER RIGHTS NOT AFFECTED.—

3 (1) IN GENERAL.—Subject to subsection (b), 

4 nothing in this Act shall affect rights, limitations, or 

5 remedies concerning copyright, patent, trademark, de6 sign rights, antitrust, trade secrets, privacy, access to 

7 public documents, and misuse. 

8 (2) RIGHT OF CONTRACT.—Notwithstanding sub9 section (b), nothing in this Act shall affect rights, lim10 itations, or remedies concerning the common law 

11 right of contract. 

12 (b) PREEMPTION OF STATE LAW.—

13 (1) LAWS REGULATING CONDUCT THAT IS SUB14 JECT OF THE ACT.—On and after the effective date of 

15 this Act, no State statute, rule, regulation, or common 

16 law doctrine that prohibits or otherwise regulates con17 duct that is prohibited or regulated under this Act 

18 shall be effective. 

19 (2) CLARIFICATION OF INAPPLICABILITY TO

20 CASES NOT INVOLVING COMMERCIAL COMPETITION.—

21 Paragraph (1) shall not apply to preempt actions 

22 under State law against a person for taking actions 

23 that—

24 (A)(i) disrupt the sources of data supply to 

25 a database; or 
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1 (ii) substantially impair the perceived accu2 racy, currency, or completeness of data in a 

3 database by inaccurate, untimely, or incomplete 

4 replication and distribution of such data; and 

5 (B) do not involve the person making avail6 able in commerce the data from such database in 

7 competition with such database. 

8 (c) COMMUNICATIONS ACT OF 1934.—Nothing in this 

9 Act shall affect the operation of section 222(e) or any other 

10 provision of the Communications Act of 1934 (47 U.S.C. 

11 151 et seq.), or shall restrict any person from making avail12 able in commerce or extracting subscriber list information, 

13 as such term is defined in section 222(h)(3) of the Commu14 nications Act of 1934 (47 U.S.C. 222(h)(3)). 

15 (d) SECURITIES.—Nothing in this Act shall—

16 (1) affect the operation of the Securities Act of 

17 1933 (15 U.S.C. 78a et seq.), the Securities Exchange 

18 Act of 1934 (15 U.S.C. 78a et seq.), the Public Utility 

19 Holding Company Act of 1935 (15 U.S.C. 79a et 

20 seq.), the Trust Indenture Act of 1939 (15 U.S.C. 

21 77aaa et seq.), the Investment Company Act of 1940 

22 (15 U.S.C. 80a–1 et seq.), the Investment Advisers Act 

23 of 1940 (15 U.S.C. 80b et seq.), or the Securities In24 vestor Protection Act of 1970 (15 U.S.C. 78aaa et 

25 seq.), or the rules or regulations thereunder; 
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1 (2) affect the authority of the Securities and Ex2 change Commission; or 

3 (3) apply to information with respect to 

4 quotations for, or indications, orders, or transactions 

5 in, securities. 

6 (e) MISUSE.—Judicial doctrines of misuse shall apply 

7 under this Act. 

8 SEC. 7. CIVIL REMEDIES. 

9 (a) CIVIL ACTIONS.—

10 (1) COMMENCEMENT OF ACTIONS.—Any person 

11 who is injured by a violation of section 3 may bring 

12 a civil action for such a violation in an appropriate 

13 United States district court. Any action against a 

14 State governmental entity may be brought in any 

15 court that has jurisdiction over claims against such 

16 entity. 

17 (2) NOTICE OF COMMENCEMENT OF ACTIONS AND

18 APPEALS.—Any person who brings an action for such 

19 a violation, or who files an appeal from any final de20 cision on such an action, shall transmit notice of such 

21 action or appeal to the Federal Trade Commission, 

22 the United States Patent and Trademark Office, and 

23 the Register of Copyrights, in accordance with sub24 section (i)(1). 
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1 (b) TEMPORARY AND PERMANENT INJUNCTIONS.—Any 

2 court having jurisdiction of a civil action under this section 

3 shall have the power to grant temporary and permanent 

4 injunctions, according to the principles of equity and upon 

5 such terms as the court may deem reasonable, to prevent 

6 or restrain a violation or attempted violation of section 3. 

7 Any such injunction may be served anywhere in the United 

8 States on the person enjoined, and may be enforced by pro9 ceedings in contempt or otherwise by any United States dis10 trict court having jurisdiction over that person. 

11 (c) MONETARY RELIEF.—

12 (1) ACTUAL DAMAGES AND ATTRIBUTABLE PROF13 ITS.—When a violation of section 3 has been estab14 lished in any civil action arising under this section, 

15 the plaintiff shall be entitled to recover the actual 

16 damages sustained by the plaintiff as a result of the 

17 violation and any profits of the defendant that are at18 tributable to the violation and are not taken into ac19 count in computing the actual damages sustained by 

20 the plaintiff. The court shall assess such profits or 

21 damages or cause the same to be assessed under its di22 rection. In assessing profits the plaintiff shall be re23 quired to prove defendant’s gross revenue only and the 

24 defendant shall be required to prove all elements of 

25 cost or deduction claims.
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1 (2) ADDITIONAL DAMAGES.—In addition to ac2 tual damages, the court may enter judgment for an

3 additional amount not exceeding 2 times such actual 

4 damages after considering the following factors: 

5 (A) Whether the plaintiff notified the de6 fendant of the alleged violation and the defend7 ant continued to violate section 3. 

8 (B) The willfulness of the defendant’s con9 duct. 

10 (C) Whether the defendant has a history of 

11 database misappropriation. 

12 (D) The defendant’s ability to pay. 

13 (E) Whether the alleged violation had a se14 rious negative financial impact on the plaintiff. 

15 (F) Any good faith effort by the defendant 

16 to rectify the misappropriation. 

17 (G) Whether the assessment of additional 

18 damages is necessary in order to deter future 

19 violations.

20 (d) IMPOUNDMENT.—At any time while an action 

21 under this section is pending, including an action seeking 

22 to enjoin a violation, the court may order the impounding, 

23 on such terms as it deems reasonable, of all copies of con24 tents of a database made available in commerce or at25 tempted to be made available in commerce potentially in 
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1 violation of section 3, and of all masters, tapes, disks, disk2 ettes, or other articles by means of which such copies may 

3 be reproduced. The court may, as part of a final judgment 

4 or decree finding a violation or attempted violation of sec5 tion 3, order the remedial modification or destruction of 

6 all copies of contents of a database made available in com7 merce or attempted to be made available in commerce in 

8 violation of section 3, and of all masters, tapes, disks, disk9 ettes, or other articles by means of which such copies may 

10 be reproduced. 

11 (e) COSTS AND ATTORNEY’S FEES.—The court in its 

12 discretion may award reasonable costs and attorney’s fees 

13 to the prevailing party. The court shall award costs and 

14 fees if it determines that an action was brought or a defense 

15 was raised under this Act in bad faith. 

16 (f) ACTIONS AGAINST UNITED STATES GOVERN17 MENT.—Subsections (b) and (d) shall not apply to any ac18 tion against the United States Government. 

19 (g) RELIEF AGAINST STATE ENTITIES.—The relief 

20 provided under this section shall be available against a 

21 State governmental entity to the extent permitted by appli22 cable law. 

23 (h) LIMITATION ON LIABILITY OF CERTAIN ENTI24 TIES.—
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1 (1) LIMITATION ON LIABILITY.—No provider of 

2 an interactive computer service shall be liable under 

3 section 3 for making available information that is 

4 provided by another information content provider. 

5 (2) DEFINITIONS.—In this subsection, the terms 

6 ‘‘interactive computer service’’ and ‘‘information con7 tent provider’’ have the meanings given those terms in 

8 section 230(f) of the Communications Act of 1934 (47 

9 U.S.C. 230(f)). 

10 (3) CONSTRUCTION.—For purposes of section 230 

11 of the Communications Act of 1934 and any other 

12 provision of law, the provisions of this Act shall not 

13 be construed to be a law pertaining to intellectual 

14 property. 

15 (i) OVERSIGHT OF CIVIL REMEDIES BY FTC AND

16 PTO.—

17 (1) NOTICE.—The Federal Trade Commission, 

18 the Director of the United States Patent and Trade19 mark Office, and the Register of Copyrights shall, by 

20 regulation, prescribe the form and procedures by 

21 which persons shall transmit the notices required by 

22 subsection (a)(2). 

23 (2) OVERSIGHT.—The Federal Trade Commis24 sion, the Director of the United States Patent and 

25 Trademark Office, and the Register of Copyrights 
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1 shall review the actions conducted under this section 

2 for the purposes of identifying instances in which ju3 dicial interpretation of this Act adversely or otherwise 

4 materially affects the administration of laws and 

5 policies within their respective jurisdictions. 

6 (3) AMICUS CURIAE BRIEFS.—The Federal Trade 

7 Commission, the Director of the United States Patent 

8 and Trademark Office, and the Register of Copyrights 

9 may, in appropriate instances, file briefs as friends 

10 of the court in appeals from final decisions of actions 

11 under this section. 

12 (4) REPORTS.—The Federal Trade Commission, 

13 the Director of the United States Patent and Trade14 mark Office, and the Register of Copyrights shall, 

15 within 18 months after the date of the enactment of 

16 this Act, each transmit a report to the Committee on 

17 the Judiciary and the Committee on Energy and 

18 Commerce of the House of Representatives and the 

19 Committee on the Judiciary and the Committee on 

20 Commerce, Science, and Transportation of the Senate 

21 on their operations under this subsection. Such re22 ports shall include—

23 (A) a summary of any briefs filed under 

24 paragraph (3); 
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1 (B) an explanation of the impact, if any, of 

2 the judicial decisions reviewed on existing laws 

3 and policies within the jurisdiction of the Com4 mission, the Director of the Patent and Trade5 mark Office, or the Register of Copyrights, as the 

6 case may be; and 

7 (C) any recommendations for legislative or 

8 other changes that the Commission, the Director 

9 of the Patent and Trademark Office, or the Reg10 ister of Copyrights, as the case may be, considers 

11 appropriate. 

12 SEC. 8. LIMITATION ON ACTIONS. 

13 No civil action shall be maintained under this Act un14 less it is commenced within 2 years after the cause of action 

15 arises or claim accrues. 

16 SEC. 9. EXCLUSION FROM LIABILITY FOR EDUCATIONAL IN17 STITUTIONS AND RESEARCH LABORATORIES. 

18 (a) EXCLUSION.—Except as provided in subsection 

19 (d), no liability shall be imposed under this Act on—

20 (1) any accredited nonprofit postsecondary edu21 cational institution or any nonprofit research labora22 tory, 

23 (2) any employee of such educational institution 

24 or laboratory acting within the scope of his or her 

25 employment, or 
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1 (3) any student enrolled in such educational in2 stitution acting in furtherance of the supervised ac3 tivities or programs of the institution—

4 by reason of activities undertaken for nonprofit education, 

5 scientific, or research purposes. 

6 (b) ACCREDITATION.—For purposes of this section, ac7 creditation shall be as determined by a regional or national 

8 accrediting agency recognized by the Council on Higher Ac9 creditation or the United States Department of Education. 

10 (c) NONPROFIT RESEARCH LABORATORY.—For pur11 poses of this section, a nonprofit research laboratory is a 

12 nonprofit research organization that is primarily engaged 

13 in basic or applied scientific research, or both, and that 

14 is a qualified organization as defined in section 41(b)(6)(B) 

15 of the Internal Revenue Code of 1986 for purposes of the 

16 research credit determined under section 41 of such Code. 

17 (d) EXCEPTION.—Subsection (a) does not apply to an 

18 institution, laboratory, employee of such institution or lab19 oratory, or student of such institution to the extent that 

20 the institution, laboratory, employee, or student makes 

21 available substantially all of a database in direct commer22 cial competition with a person who made the substantial 

23 expenditure described in section 3(a)(1). 
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1 SEC. 10. EFFECTIVE DATE. 

2 (a) IN GENERAL.—This Act shall take effect on the 

3 date of the enactment of this Act, and shall apply to acts 

4 of making available in commerce on or after that date with 

5 respect to databases existing before, on, or after that date. 

6 (b) PRIOR ACTS NOT AFFECTED.—No person shall be 

7 liable under section 3 for making available in commerce 

8 on or after the date of the enactment of this Act a quan9 titatively substantial part of the information in a database 

10 in violation of that section, when the information was law11 fully extracted from the database before the date of the en12 actment of this Act, by that person or by that person’s pred13 ecessor in interest. 

14 SEC. 11. NONSEVERABILITY. 

15 (a) IN GENERAL.—If the Supreme Court of the United 

16 States holds that the provisions of section 3, relating to pro17 hibition against misappropriation of databases, are invalid 

18 under Article I of, or the First Amendment to, the Constitu19 tion of the United States, then this Act is repealed, effective 

20 as of the date of the Supreme Court decision. 

21 (b) TERMINATION.—Subsection (a) shall cease to be ef22 fective at the end of the 10-year period beginning on the 

23 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