I 

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.

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 Collec5 tions 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 
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1 works in themselves, are assembled into a collective 

2 whole. 

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

4 all commerce which may be lawfully regulated by the 

5 Congress. 

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

7 means a work formed by the collection and assem8 bling of preexisting materials or of data that are se9 lected, coordinated, or arranged in such a way that 

10 the resulting work as a whole constitutes an original 

11 work of authorship. The term ‘‘compilation’’ includes 

12 collective works. 

13 (4) COVERED ENTITY.—The term ‘‘covered en14 tity’’ means a legal entity that is—

15 (A) a telecommunications carrier engaged 

16 in the provision of a telecommunications serv17 ice; 

18 (B) a person engaged in the business of 

19 providing an Internet access service; 

20 (C) a person engaged in the business of 

21 providing an Internet information location tool; 

22 and 

23 (D) a person similarly engaged in the 

24 transmission, storage, retrieval, hosting, for25 matting, or translation (or any combination 
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1 thereof) of a communication made by another 

2 person, without selection or alteration of the 

3 content of the communication, except that such 

4 person’s deletion of a particular communication 

5 or material made available in commerce by an6 other person in violation of section 3 shall not 

7 constitute such selection or alteration of the 

8 content of the communication. 

9 (5) DATABASE.—

10 (A) IN GENERAL.—Subject to subpara11 graph (B), the term ‘‘database’’ means a collec12 tion of a large number of discrete items of in13 formation produced for the purpose of bringing 

14 such discrete items of information together in 

15 one place or through one source so that persons 

16 may access them. 

17 (B) EXCLUSIONS.—The term database 

18 does not include any of the following:

19 (i) A work of authorship, other than 

20 a compilation or a collective work. 

21 (ii) A collection of information that 

22 principally performs the function of ad23 dressing, routing, forwarding, transmit24 ting, or storing digital online communica25 tions or receiving access to connections for 
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1 digital communications, except that the 

2 fact that a collection of information in3 cludes or consists of online location des4 ignations shall not by itself be the basis for 

5 applying this clause. 

6 (iii) A collection of information gath7 ered, organized, or maintained to perform 

8 the function of providing multichannel 

9 audio or video programming. 

10 (iv) A collection of information gath11 ered, organized, or maintained to register 

12 domain name registrant contact data 

13 maintained by a domain name registration 

14 authority, unless such registration author15 ity takes appropriate steps to ensure the 

16 integrity and accuracy of such information 

17 and provides real-time, unrestricted, and 

18 fully searchable public access to the infor19 mation contained in such collection of in20 formation. 

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

22 database is a subset of a database shall not pre23 clude such subset from treatment as a database 

24 under this Act. 
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1 (6) DOMAIN NAME.—The term ‘‘domain name’’ 

2 means any alphanumeric designation which is reg3 istered with or assigned by any domain name reg4 istrar, domain name registry, or other domain name 

5 registration authority as part of an electronic ad6 dress on the Internet. 

7 (7) IN CONCERT.—A person acts ‘‘in concert’’ 

8 with another person who makes a database available 

9 in commerce if the act of making available in com10 merce is planned, arranged, coordinated, adjusted, 

11 agreed upon, or settled between the two persons act12 ing together, in pursuance of some design or in ac13 cordance with some scheme. 

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

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

16 intangible material capable of being generated or 

17 gathered. 

18 (9) INTERNET.—The term ‘‘Internet’’ means 

19 the combination of computer facilities and electro20 magnetic transmission media, and related equipment 

21 and software, comprising the interconnected world22 wide network of computer networks that employ the 

23 Transmission Control Protocol/Internet Protocol or 

24 any successor protocol to transmit information. 
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1 (10) INTERNET ACCESS SERVICE.—The term 

2 ‘‘Internet access service’’ means a service that en3 ables users to access content, information, electronic 

4 mail, or other services offered over the Internet, and 

5 may also include access to proprietary content, infor6 mation, and other services as part of a package of 

7 services offered to consumers. Such term does not 

8 include telecommunications services. 

9 (11) INTERNET INFORMATION LOCATION

10 TOOL.—The term ‘‘Internet information location 

11 tool’’ means a service that refers or links users to 

12 an online location on the World Wide Web. Such 

13 term includes directories, indices, references, point14 ers, and hypertext links. 

15 (12) LEGAL ENTITY.—The term ‘‘legal entity’’ 

16 means a person, other than an individual, including 

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

18 which is organized under the laws of the United 

19 States, a State, the District of Columbia, or any

20 commonwealth, territory, or possession of the United 

21 States, or the laws of a foreign country. 

22 (13) MAINTAIN.—To ‘‘maintain’’ a database 

23 means to update, validate, or supplement the infor24 mation contained in the database. 
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1 (14) MAKING AVAILABLE IN COMMERCE TO

2 OTHERS.—The term ‘‘making available in commerce 

3 to others’’ means making available in commerce to—

4 (A) a substantial number of members of 

5 the public; or 

6 (B) a number of persons that extends be7 yond—

8 (i) a family and its social acquaint9 ances; or 

10 (ii) those who could reasonably antici11 pate to have a database made available in 

12 commerce to them without a customary 

13 commercial relationship. 

14 A court may take into account repeated acts di15 rected to different persons by the same or con16 certed parties in determining the limits imposed 

17 by subparagraph (B)(ii) have been exceeded. 

18 (15) TELECOMMUNICATIONS.—The term ‘‘tele19 communications’’ means the transmission, between 

20 or among points specified by the user, of informa21 tion of the user’s choosing, without change in the 

22 form or content of the information as sent and re23 ceived. 

24 (16) TELECOMMUNICATIONS CARRIER.—The 

25 term ‘‘telecommunications carrier’’ means any pro-
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1 vider of telecommunications services, except that 

2 such term does not include any person that, in the 

3 ordinary course of its operations, makes telephones 

4 available to the public or to transient users of its 

5 premises, for interstate telephone calls using a pro6 vider of operator services. 

7 (17) TELECOMMUNICATIONS SERVICE.—The 

8 term ‘‘telecommunications service’’ means the offer9 ing of telecommunications for a fee directly to the 

10 public, or to such classes of users as to be effectively 

11 available directly to the public, regardless of the fa12 cilities used.

13 SEC. 3. PROHIBITION AGAINST MISAPPROPRIATION OF 

14 DATABASES. 

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

16 commerce to others a quantitatively substantial part of the 

17 information in a database generated, gathered, or main18 tained by another person, knowing that such making avail19 able in commerce is without the authorization of that per20 son (including a successor in interest) or that person’s li21 censee, when acting within the scope of its license, shall 

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

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

24 maintained through a substantial expenditure of fi25 nancial resources or time; 
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1 (2) the unauthorized making available in com2 merce occurs in a time sensitive manner and inflicts 

3 injury on the database or a product or service offer4 ing access to multiple databases; and 

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

6 the efforts of the plaintiff would so reduce the incen7 tive to produce the product or service that its exist8 ence or quality would be substantially threatened. 

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

10 term ‘‘inflicts an injury’’ means serving as a functional 

11 equivalent in the same market as the database in a man12 ner that causes the displacement, or the disruption of the 

13 sources, of sales, licenses, advertising, or other revenue. 

14 (c) TIME SENSITIVE.—In determining whether an un15 authorized making available in commerce occurs in a time 

16 sensitive manner, the court shall consider the temporal 

17 value of the information in the database, within the con18 text of the industry sector involved. 

19 SEC. 4. PERMITTED ACTS. 

20 (a) INDEPENDENTLY GENERATED OR GATHERED IN21 FORMATION.—This Act shall not restrict any person from 

22 independently generating or gathering information ob23 tained by means other than extracting it from a database 

24 generated, gathered, or maintained by another person and 

25 making that information available in commerce. 
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1 (b) ACTS OF MAKING AVAILABLE IN COMMERCE BY

2 NONPROFIT EDUCATIONAL, SCIENTIFIC, OR RESEARCH

3 INSTITUTIONS.—The making available in commerce of a 

4 substantial part of a database by a nonprofit educational, 

5 scientific, and research institution, including an employee 

6 or agent of such institution acting within the scope of such 

7 employment or agency, for nonprofit educational, sci8 entific, and research purposes shall not be prohibited by 

9 section 3 if the court determines that the making available 

10 in commerce of the information in the database is reason11 able under the circumstances, taking into consideration 

12 the customary practices associated with such uses of such 

13 database by nonprofit educational, scientific, or research 

14 institutions and other factors that the court determines 

15 relevant. 

16 (c) HYPERLINKING.—Nothing in this Act shall re17 strict the act of hyperlinking of one online location to an18 other or the providing of a reference or pointer (including 

19 such reference or pointer in a directory or index) to a 

20 database. 

21 (d) NEWS REPORTING.—Nothing in this Act shall re22 strict any person from making available in commerce in23 formation for the primary purpose of news reporting, in24 cluding news and sports gathering, dissemination, and 

25 comment, unless the information is time sensitive and has 
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1 been gathered by a news reporting entity, and making 

2 available in commerce the information is part of a con3 sistent pattern engaged in for the purpose of direct com4 petition. 

5 SEC. 5. EXCLUSIONS. 

6 (a) GOVERNMENT INFORMATION.—

7 (1) IN GENERAL.—Except as provided in para8 graph (2), protection under this Act shall not extend 

9 to—

10 (A) a database generated, gathered, orga11 nized, or maintained by a Federal, State, or 

12 local governmental entity, or by an employee or 

13 agent of such an entity, acting within the scope 

14 of such employment or agency; or 

15 (B) a database generated, gathered, or 

16 maintained by an entity pursuant to and to the 

17 extent required by a Federal statute or regula18 tion requiring such a database.

19 (2) EXCEPTION.—Nothing in this section shall 

20 preclude protection under this Act for a database 

21 gathered, organized, or maintained by an employee 

22 or agent of an entity described in paragraph (1) that 

23 is acting outside the scope of such employment or 

24 agency, or by a Federal, State, or local educational 
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1 institution, or its employees or agents, in the course 

2 of engaging in education, research, or scholarship. 

3 (b) COMPUTER PROGRAMS.—

4 (1) PROTECTION NOT EXTENDED.—Subject to 

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

6 extend to computer programs, including any com7 puter program used in the manufacture, production, 

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

9 element of a computer program necessary to its op10 eration. 

11 (2) INCORPORATED DATABASES.—A database 

12 that is otherwise subject to protection under section 

13 3 is not disqualified from such protection solely be14 cause it resides in a computer program, so long as 

15 the collection of information functions as a database 

16 within the meaning of this Act. 

17 SEC. 6. RELATION TO OTHER LAWS. 

18 (a) OTHER RIGHTS NOT AFFECTED.—

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

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

21 remedies concerning copyright, patent, trademark, 

22 design rights, antitrust, trade secrets, privacy, ac23 cess to public documents, and misuse. 

24 (2) RIGHT OF CONTRACT.—Notwithstanding 

25 subsection (b), nothing in this Act shall affect 
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1 rights, limitations, or remedies concerning the com2 mon law right of contract. 

3 (b) PREEMPTION OF STATE LAW.—

4 (1) LAWS REGULATING CONDUCT THAT IS SUB5 JECT OF THE ACT.—On or after the effective date 

6 of this Act, no State statute, rule, regulation, or 

7 common law doctrine that prohibits or otherwise reg8 ulates conduct that is the subject of this Act shall 

9 be effective. 

10 (2) CLARIFICATION OF INAPPLICABILITY TO

11 CASES NOT INVOLVING COMMERCIAL COMPETI12 TION.—Paragraph (1) shall not apply to preempt ac13 tions under State law against a person for taking ac14 tions that—

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

16 a database; or 

17 (ii) substantially impair the perceived accu18 racy, currency, or completeness of data in a 

19 database by inaccurate, untimely, or incomplete 

20 replication and distribution of such data; and 

21 (B) do not involve the person making 

22 available in commerce the data from such data23 base in competition with such database. 

24 (c) COMMUNICATIONS ACT OF 1934.—Nothing in 

25 this Act shall affect the operation of section 222(e) or any 
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1 other provision of the Communications Act of 1934 (47 

2 U.S.C. 151 et seq.), or shall restrict any person from mak3 ing available in commerce or extracting subscriber list in4 formation, as such term is defined in section 222(h)(3) 

5 of the Communications Act of 1934 (47 U.S.C. 

6 222(h)(3)). 

7 (d) SECURITIES.—Nothing in this title shall—

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

9 1933 (15 U.S.C. 78a et seq.), the Securities Ex10 change Act of 1934 (15 U.S.C. 78a et seq.), the 

11 Public Utility Holding Company Act of 1935 (15 

12 U.S.C. 79a et seq.), the Trust Indenture Act of 

13 1939 (15 U.S.C. 77aaa et seq.), the Investment 

14 Company Act of 1940 (15 U.S.C. 80a–1 et seq.), the 

15 Investment Advisers Act of 1940 (15 U.S.C. 80b et 

16 seq.), or the Securities Investor Protection Act of 

17 1970 (15 U.S.C. 78aaa et seq.), or the rules or reg18 ulations thereunder; 

19 (2) affect the authority of the Securities and 

20 Exchange Commission; or 

21 (3) apply to information with respect to 

22 quotations for, or indications, orders, or transactions 

23 in, securities. 

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

25 under this Act. 
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1 SEC. 7. CIVIL REMEDIES. 

2 (a) CIVIL ACTIONS.—

3 (1) COMMENCEMENT OF ACTIONS.—Any person 

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

5 a civil action for such a violation in an appropriate 

6 United States district court. Any action against a 

7 State governmental entity may be brought in any 

8 court that has jurisdiction over claims against such 

9 entity. 

10 (2) NOTICE OF COMMENCEMENT OF ACTIONS

11 AND APPEALS.—Any person who brings an action 

12 for such a violation, or who files an appeal from any 

13 final decision on such an action, shall transmit no14 tice of such action or appeal with the Federal Trade 

15 Commission and the Patent and Trademark Office 

16 in accordance with subsection (j)(1). 

17 (b) TEMPORARY AND PERMANENT INJUNCTIONS.—

18 Any court having jurisdiction of a civil action under this 

19 section shall have the power to grant temporary and per20 manent injunctions, according to the principles of equity 

21 and upon such terms as the court may deem reasonable, 

22 to prevent or restrain a violation or attempted violation 

23 of section 3. Any such injunction may be served anywhere 

24 in the United States on the person enjoined, and may be 

25 enforced by proceedings in contempt or otherwise by any 
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1 United States district court having jurisdiction over that 

2 person. 

3 (c) MONETARY RELIEF.—

4 (1) ACTUAL DAMAGES AND ATTRIBUTABLE

5 PROFITS.—When a violation of section 3 has been 

6 established in any civil action arising under this sec7 tion, the plaintiff shall be entitled to recover the ac8 tual damages sustained by the plaintiff as a result 

9 of the violation and any profits of the defendant that 

10 are attributable to the violation and are not taken 

11 into account in computing the actual damages sus12 tained by the plaintiff. The court shall assess such 

13 profits or damages or cause the same to be assessed 

14 under its direction. In assessing profits the plaintiff 

15 shall be required to prove defendant’s gross revenue 

16 only and the defendant shall be required to prove all 

17 elements of cost or deduction claims.

18 (2) ADDITIONAL DAMAGES.—In addition to ac19 tual damages, the court may enter judgment for an 

20 additional amount not exceeding 2 times such actual 

21 damages after considering the following factors: 

22 (A) Whether the plaintiff notified the de23 fendant of the alleged violation and the defend24 ant continued to violate section 3. 
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1 (B) The willfulness of the defendant’s con2 duct. 

3 (C) Whether the defendant has a history of 

4 database misappropriation. 

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

6 (E) Whether the alleged violation had a se7 rious negative financial impact on the plaintiff. 

8 (F) Any good faith effort by the defendant 

9 to rectify the misappropriation. 

10 (G) Whether the assessment of additional 

11 damages is necessary in order to deter future 

12 violations.

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

14 under this section is pending, including an action seeking 

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

16 on such terms as it deems reasonable, of all copies of con17 tents of a database made available in commerce or at18 tempted to be made available in commerce potentially in 

19 violation of section 3, and of all masters, tapes, disks, 

20 diskettes, or other articles by means of which such copies 

21 may be reproduced. The court may, as part of a final judg22 ment or decree finding a violation or attempted violation 

23 of section 3, order the remedial modification or destruc24 tion of all copies of contents of a database made available 

25 in commerce or attempted to be made available in com-
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1 merce in violation of section 3, and of all masters, tapes, 

2 disks, diskettes, or other articles by means of which such 

3 copies may be reproduced. 

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

5 discretion may award reasonable costs and attorney’s fees 

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

7 fees if it determines that an action was brought or a de8 fense was raised under this chapter in bad faith. 

9 (f) ACTIONS AGAINST UNITED STATES GOVERN10 MENT.—Subsections (b) and (d) shall not apply to any ac11 tion against the United States Government. 

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

13 provided under this section shall be available against a 

14 State governmental entity to the extent permitted by ap15 plicable law. 

16 (h) LIMITATION ON LIABILITY OF CERTAIN ENTI17 TIES.—A covered entity shall not be liable for a violation 

18 under section 3 unless—

19 (1) the person who made the database available 

20 in commerce in violation of section 3 is an officer, 

21 employee, or agent of the covered entity acting with22 in the scope of the actor’s duties or agency; 

23 (2) an officer, employee, or agent of the covered 

24 entity, acting within the scope of the actor’s duties 

25 or agency, actively directs or induces the act of mak-
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1 ing available in commerce in violation of section 3 by 

2 another person, or acts in concert with the person 

3 who made the database available in commerce in vio4 lation of section 3; or 

5 (3) the covered entity receives a financial gain 

6 or benefit that—

7 (A) is directly attributable to the making 

8 available in commerce of the database, or the 

9 content thereof, in violation of section 3; and 

10 (B) is in excess of the ordinary compensa11 tion for the rendering of the services described 

12 in subparagraph (A), (B), (C) or (D) of section 

13 2(2) that are provided by the covered entity. 

14 (i) OVERSIGHT OF CIVIL REMEDIES BY FTC AND

15 PTO.—

16 (1) NOTICE.—The Federal Trade Commission 

17 and the Patent and Trademark Office shall, by regu18 lation, prescribe the form and procedures by which 

19 persons shall transmit the notices required by sub20 section (a)(2). 

21 (2) OVERSIGHT.—The Federal Trade Commis22 sion and the Patent and Trademark Office shall re23 view the actions conducted under this section for the 

24 purposes of identifying instances in which judicial 

25 interpretation of this Act adversely or otherwise ma-
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1 terially affects the administration of laws and poli2 cies within their respective jurisdictions. 

3 (3) AMICUS CUREA BRIEFS.—The Federal 

4 Trade Commission, the Patent and Trademark Of5 fice, and the Register of Copyrights may, in appro6 priate instances, file briefs as friends of the court in 

7 appeals from final decisions of actions under this 

8 section. 

9 (4) REPORTS.—The Federal Trade Commission 

10 and the Patent and Trademark Office shall, within 

11 18 months after the date of enactment of this Act, 

12 each transmit a report to the Committee on the Ju13 diciary and the Committee on Energy and Com14 merce of the House of Representatives and the Com15 mittee on the Judiciary and Committee on Com16 merce, Science, and Transportation of the Senate on 

17 its operations under this subsection. Such reports 

18 shall include—

19 (A) a summary of any briefs filed; 

20 (B) an explanation of the impact, if any, of 

21 the judicial decisions reviewed on existing laws 

22 and policies within its jurisdiction; and 

23 (C) any recommendations for legislative or 

24 other changes that the agency considers appro25 priate. 
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1 SEC. 8. LIMITATION ON ACTIONS. 

2 No civil action shall be maintained under this Act un3 less it is commenced within 2 years after the cause of ac4 tion arises or claim accrues. 

5 SEC. 9. EFFECTIVE DATE. 

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

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

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

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

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

11 be liable under section 3 for making available in commerce 

12 after the date of the enactment of this Act of a quan13 titatively substantial part of the information in a database 

14 in violation of that section, when the information was law15 fully extracted from the database before the date of the 

16 enactment of this Act, by that person or by that person’s 

17 predecessor in interest. 

18 SEC. 10. NONSEVERABILITY. 

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

20 United States holds that the provisions of section 3, relat21 ing to prohibition of misappropriation of databases, are 

22 invalid under Article I of, or the First Amendment to, the 

23 Constitution of the United States, then this Act is re24 pealed, effective as of the date of the Supreme Court deci25 sion. 
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1 (b) TERMINATION.—Subsection (a) shall cease to be 

2 effective at the end of the 10-year period beginning on 

3 the date of the enactment of this Act.

Æ