108TH CONGRESS REPT. 108–421 " HOUSE OF REPRESENTATIVES ! 2d Session Part 1

DATABASE AND COLLECTIONS OF INFORMATION 

MISAPPROPRIATION ACT 

FEBRUARY 11, 2004.—Ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 3261] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 3261) to prohibit the misappropriation of certain databases, 

having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass.

CONTENTS 

Page 

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 7

Background and Need for the Legislation ............................................................. 7

Hearings ................................................................................................................... 10

Committee Consideration ........................................................................................ 10

Vote of the Committee ............................................................................................. 10

Committee Oversight Findings ............................................................................... 13

New Budget Authority and Tax Expenditures ...................................................... 13

Congressional Budget Office Cost Estimate .......................................................... 13

Performance Goals and Objectives ......................................................................... 15

Constitutional Authority Statement ...................................................................... 15

Section-by-Section Analysis and Discussion .......................................................... 15

Changes in Existing Law Made by the Bill, as Reported ..................................... 17

Markup Transcript .................................................................................................. 18

Dissenting Views ..................................................................................................... 77

Dissenting Views ..................................................................................................... 81

2

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following:

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, 

3

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.—

4

(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 

5

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.—

6

(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. 

7

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.

PURPOSE AND SUMMARY

H.R. 3261, the ‘‘Database and Collections of Information Misappropriation Act,’’ creates a comprehensive Federal protection system for databases. This redress will supplement a patchwork of existing state and Federal remedies that do not, individually nor collectively, offer adequate protection. 

Accurate databases are critical to our information economy. 

Databases affect the flow of information in a number of important 

fields and endeavors, including law, medicine, public health, and 

consumer matters. ‘‘Free-riders’’—those who steal databases—do 

not invest the time, money, and other resources necessary to 

produce databases. The protections offered under H.R. 3261 will 

ensure that lawful database owners retain an incentive to produce 

and maintain their compilations, while American consumers and 

businesses will benefit from the availability and accuracy of these 

publications. 

BACKGROUND AND NEED FOR THE LEGISLATION

IN GENERAL

Electronic collections, and other collections of factual material, 

are indispensable to the United States in the new information 

economy. These information products put a wealth of data in a convenient and organized form at the fingertips of businesses, scientists, scholars, and consumers, enabling them to retrieve specific 

factual information needed to solve a particular economic, research, 

or educational problem. Whether the focus is on financial, scientific, legal, medical, bibliographic, or other information, databases improve productivity. 

Developing, compiling, distributing and maintaining commercially significant collections requires substantial investments of 

time, personnel, effort, and money. Information companies, small 

and large, must dedicate substantial resources to gathering and 

verifying factual material, presenting it in a user-friendly way, and 

keeping it current and useful to customers. American firms have 

been the global leaders in this field. They have brought to market 

a wide range of valuable collections that meet the information 

needs of businesses, professionals, researchers, and consumers 

worldwide. But several recent legal and technological developments 

threaten to derail this progress by eroding the incentives for continued investment needed to maintain and build upon the U.S. lead 

in world markets for electronic information resources. 

Historically, protection of collections of information has always 

been recognized as a branch of copyright law. Databases or compilations have been protected by copyright in some form since 1790, 

when the first U.S. Copyright Act was enacted. As courts applied 

copyright law to compilations, two distinct rationales for protection 

8

1 499 U.S. 340 (1991). 

2 Id. at 349. 

emerged. One, known as ‘‘sweat of the brow doctrine,’’ viewed the 

compiler’s effort and investment (much as in trademark law) as the 

basis for copyright protection. In 1976, the Copyright Act was 

amended to require that compilations contain an element of creativity or originality in addition to effort and investment. Despite 

this amendment, many courts have continued to apply the ‘‘sweat 

of the brow’’ doctrine in determining copyright protection. 

In Feist Publications, Inc., v. Rural Telephone Service Co.,1 the 

Supreme Court affirmed that originality and creativity (in addition 

to investment and effort) are required for protection under the 

Copyright Act, and that a related form of protection would have to 

be created to more fairly protect compilations or portions of compilations in which there is effort and investment, but not a threshold level of originality or creativity. While Feist reaffirmed that 

most—although not all—commercially significant databases satisfy 

the ‘‘originality’’ requirement for protection under copyright, the 

Court emphasized that this protection is necessarily ‘‘thin.’’ 2 Several subsequent lower court decisions have underscored that copyright cannot stop a competitor from lifting massive amounts of factual material from a copyrighted database to use as the basis for 

its own competing product. This casts doubt on the ability of a 

database proprietor to use contractual provisions to protect itself 

against unfair competition from ‘‘free riders.’’

Similar to other legislative initiatives since in the 104th Congress, H.R. 3261 responds to Feist. Although not based on a copyright or other property right model, the bill offers database owners 

protection for their compilations that is more comprehensive and 

uniform than the inadequate patchwork system of state and Federal laws currently available. 

Beyond these legal and commercial developments in the United 

States, there is reason to protect American-generated databases in 

the world market. To illustrate, a 6-year legislative process culminated in the issuance of a European Union Directive on Legal 

Protection of Databases in 1996. Among other things, the directive 

creates a new sui generis form of property right for the legal protection of databases to supplement copyright. However, it denies this 

new protection to collections of information originating in the 

United States or other countries unless the other country offers 

‘comparable’’ protection to collections originating in the European 

Union. When fully implemented, the European Directive could 

place U.S. firms at an enormous competitive disadvantage throughout the entire European market. 

In cyberspace, technological developments represent a threat as 

well as an opportunity for collections of information, just as for 

other works. Copying factual material from a third party’s collection and rearranging it to form a competing information product— behavior that copyright protection alone may not effectively prevent—is cheaper and easier than ever through digital technology 

that is now in widespread use. Furthermore, piracy and personal 

theft of collections developed through the resources of a third party 

is easy to achieve and will be rampant without better protection for 

database owners. 

9

3Pub. L. 105–304. 

Taken together, these factors strongly suggest that the Congress 

should implement a new Federal system to protect developers 

against piracy and unfair competition, and thereby encourage continued investment in the production and distribution of valuable 

commercial collections of information. Such legislation will improve 

the market climate for collections of information in the United 

States; ensure protection for U.S. collections abroad on an equitable 

basis; place the United States on the leading edge of an emerging 

international consensus; and provide a balanced and measured response to the new challenges of digital technology. This bill seeks 

to advance those goals. 

H.R. 3261 fosters legitimate commercial incentives that the Committee believes will ensure the continued growth, vitality, and success of the market for important information products, while securing the continued legitimate use of collections of information for 

scientific, research, educational, and other purposes. The Committee further believes that preventing producers from having to 

rely on a hodgepodge of individual state laws is essential to advancing this goal. 

As noted, the bill does not adopt a structure like copyright, rather, it embraces a misappropriation model. H.R. 3261 prohibits a 

third party from selling a ‘‘quantitatively substantial’’ portion of a 

database, provided the owner made a substantial investment of 

time or money in developing the database. The owner must also establish that the misappropriation occurred in a time-sensitive manner that caused injury and that the free use of the database will 

reduce the incentive to maintain it. There are other exclusions and 

qualifications to this basic prohibition to protect universities and 

research institutions, developers of electronic program guides, and 

those who use government databases, among others. 

In sum, H.R. 3261 represents a narrow and balanced response to 

the growing problem of database piracy. The high threshold that an 

owner must satisfy to establish liability—a total of 10 criteria must 

be met—in addition to the exclusions or exemptions set forth in the 

bill ensure that it will only be used to dissuade genuinely bad actors from indulging in piracy. 

DATABASE INITIATIVES: 104TH CONGRESS-107TH CONGRESS

104th Congress. Former Representative Carlos Moorhead, then 

Chairman of the Committee on the Judiciary’s Subcommittee on 

Courts and Intellectual Property, introduced H.R. 3531, the ‘‘Database Investment and Intellectual Property Antipiracy Act.’’ No action was taken on the bill. 

105th Congress. Representative Howard Coble, then Chairman of 

the Subcommittee on Courts and Intellectual Property, introduced 

H.R. 2652, the ‘‘Collections of Information Antipiracy Act.’’ H.R. 

2652 passed the House twice, once as a stand-alone bill and once 

as part of the Digital Millennium Copyright Act (DMCA).3 The 

final version of the DMCA that became law did not include the 

database provision. 

106th Congress. Representative Coble introduced H.R. 354, the 

‘‘Collections of Information Antipiracy Act.’’ H.R. 354 was approved 

by the Committee on the Judiciary and was sequentially referred 

10

to the Committee on Commerce. Representative Tom Bliley, Chairman of the Commerce Committee, introduced H.R. 1858, the ‘‘Consumer and Investor Access to Information Act.’’ H.R. 1858 was approved by the Committee on Commerce and was sequentially referred to the Committee on the Judiciary. No further action was 

taken on either bill. 

107th Congress. In an effort to avoid the stalemate of the 106th 

Congress, Representative F. James Sensenbrenner, Jr., Chairman 

of the Judiciary Committee, and Representative W.J. (Billy) Tauzin, Chairman of the Commerce Committee, agreed to participate 

in deliberations that would produce a consensus bill. The process 

included stakeholder discussions and negotiations followed by 

closed-door negotiations between the staffs of the two Committees. 

At the conclusion of the 107th Congress, the staffs made progress 

but did not reach an agreement on the final text of a bill. As a result, Chairman Sensenbrenner and Chairman Tauzin sent a letter 

to the Speaker, requesting that negotiations continue apace until 

April 15, 2003. 

As introduced by Representative Coble on October 8, 2003, H.R. 

3261 constitutes the final negotiation product as contemplated by 

Chairman Sensenbrenner and Chairman Tauzin in advance of Subcommittee and Committee markup. 

HEARINGS

The Committee’s Subcommittee on Courts, the Internet, and Intellectual Property, along with the Committee on Commerce’s Subcommittee on Commerce, Trade, and Consumer Protection, held a 

joint hearing on the Discussion Draft of what would become H.R. 

3261 on September 23, 2003. Testimony was received from four individuals representing four organizations, with additional materials 

submitted by other individuals and organizations. 

COMMITTEE CONSIDERATION

On October 16, 2003, the Subcommittee on Courts, the Internet, 

and Intellectual Property met in open session and ordered favorably reported the bill H.R. 3261, with an amendment, by a recorded vote of 10 to 3, a quorum being present. On January 21, 

2004, the Committee met in open session and ordered reported favorably the bill H.R. 3261, with an amendment, by a recorded vote 

of 16 to 7, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

3261. 

1. Boucher amendment regarding Internet service provider (ISP) 

liability to the Coble amendment regarding the same matter to the 

amendment in the nature of a substitute to H.R. 3261. By a rollcall 

vote of 17 yeas to 7 nays and one pass, the amendment passed.

11

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................ X

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter ..........................................................................................................

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... Pass 

Ms. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 17 7 1 Pass 

2. Boucher amendment regarding retroactive application of the 

bill’s provisions to the amendment in the nature of a substitute to 

H.R. 3261. By a rollcall vote of 8 yeas to 18 nays, the amendment 

was defeated.

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

12

ROLLCALL NO. 2—Continued

Ayes Nays Present 

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 8 18

3. Motion to report H.R. 3261, as amended by the amendment in 

the nature of a substitute, as amended. By a rollcall vote of 16 yeas 

to 7 nays, the motion was agreed to.

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly .......................................................................................................

Mr. Goodlatte ....................................................................................................

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney .........................................................................................................

Mrs. Blackburn .................................................................................................. X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt .....................................................................................................

13

ROLLCALL NO. 3—Continued

Ayes Nays Present 

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 16 7

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax 

expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 3261, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, February 10, 2004. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3261, the ‘‘Database and 

Collections of Information Misappropriation Act.’’

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Melissa E. Zimmerman (for Federal costs), who can be reached at 226–2860, Sarah 

Puro (for the State and local impact), who can be reached at 225–

3220, and Paige Piper/Bach (for the private-sector impact), who can 

be reached at 226–2940. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN.

Enclosure

cc: Honorable John Conyers, Jr. 

Ranking Member 

14

H.R. 3261—Database and Collections of Information Misappropriation Act. 

H.R. 3261 would allow parties who create or maintain information databases to file civil suits in a United States district court 

against parties who misuse those databases. The bill would require 

the United States Patent and Trademark Office, the Federal Trade 

Commission, and the Register of Copyrights to accept and review 

notices submitted by individuals filing such suits. Under the bill, 

each agency also would be required to write a report regarding the 

impact of the law with recommendations for change. CBO estimates that implementing H.R. 3261 would have no significant effect on spending subject to appropriation and would not affect direct spending or revenues. 

H.R. 3261 contains an intergovernmental mandate as defined in 

the Unfunded Mandates Reform Act (UMRA) because it would preempt State laws that protect the collection of information; however, 

CBO estimates that the resulting costs, if any, would not be significant and would not exceed the threshold established in UMRA ($60 

million in 2004, adjusted annually for inflation). 

H.R. 3261 would create a new private-sector mandate as defined 

in UMRA by prohibiting any person from making a substantial 

part of information in certain databases available to the public in 

commerce without proper authorization. CBO cannot estimate the 

total cost of the mandate because we do not have enough information to determine the scope and impact of the prohibition. 

Currently, certain types of information that may be contained in 

a database are not protected by copyright law, and such information may not be protected under individual State laws. H.R. 3261 

would impose a mandate by creating a Federal law of misappropriation that would subject to civil penalties any person who, without authority, makes a substantial portion of the information of the 

database publicly available. To avoid such penalties, a person must 

obtain the consent of the database owner through a licensing or 

similar agreement. The cost of complying with the mandate would 

be either the cost of the license or the revenue forgone by not making the information publicly available. The person’s ability to obtain a license from the proper authority would depend in part on 

the potential effects on competition with the database products or 

services. 

CBO cannot estimate the total cost of the mandate because we 

do not have enough information to determine the scope and impact 

of the prohibition against misappropriation of certain databases. 

While court decisions have identified collections of information that 

failed to meet the creative expression standard under existing copyright law, those decisions are of limited use in identifying all of the 

types of collections to which H.R. 3261 could extend protection. 

Database providers may have been unaware of unauthorized use 

or, even if aware of such activity, may not have chosen to test their 

rights in court. 

The CBO staff contacts for this estimate are Melissa E. Zimmerman (for Federal costs), who can be reached at 226–2860, Sarah 

Puro (for the State and local impact), who can be reached at 225–

3220, and Paige Piper/Bach (for the private-sector impact), who can 

be reached at 226–2940. The estimate was approved by Peter H. 

Fontaine, Deputy Assistant Director for Budget Analysis. 

15

PERFORMANCE GOALS AND OBJECTIVES

H.R. 3261 does not authorize funding. Therefore, clause 3(c)(4) of 

Rule XIII of the Rules of the House of Representatives is inapplicable. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article 1, section 8, of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title. This Act may be cited as the ‘‘Database 

and Collections of Information Misappropriation Act.’’

Section 2. Definitions. Section 2 sets forth definitions of miscellaneous terms, including ‘‘database,’’ ‘‘legal entity,’’ and ‘‘making 

available in commerce to others.’’

Section 3. Prohibition Against Misappropriation of Databases.

Section 3 prohibits the making available to others of a quantitatively substantial part of the information in a database, with 

knowledge that the making available is without the database producer’s authorization, if—

• the database was generated, gathered, or maintained 

through a substantial expenditure of financial resources or 

time;

• the making available occurs in a time-sensitive manner;

• the making available inflicts injury on the database by serving as a functional equivalent in the same market as the 

database in a manner that causes displacement of sources of 

revenue; and

• the ability of parties to ‘‘free-ride’’ on others threatens the 

existence or quality of the database.

As noted, a prospective plaintiff must satisfy a number of stringent criteria to be successful in a piracy suit for damages, impoundment, or injunctive relief . Failure to meet even one condition 

will result in a finding for the defendant. This high threshold will 

to protect legitimate third-party use of databases. Section 3 is 

aimed at combating the most egregious of bad actors and will 

therefore not generate unnecessary or illegitimate litigation. 

Section 4. Permitted Acts. Section 4 provides the Act shall not restrict acts of making available the information in a database—

• by any person who independently generates or gathers information;

• by a nonprofit educational, scientific, or research institution, 

if a court determines that the making available in commerce 

of the information is reasonable under the circumstances, 

taking into consideration the customary practices of the nonprofit educational, scientific or research institution;

• by the act of hyper-linking of one online location to another 

or providing of a reference or a pointer; or

• for the primary purpose of news reporting (including news 

and sports gathering and dissemination) unless the informaVerDate jul 14 2003 03:00 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1
16

tion is time-sensitive and has been gathered by a news-reporting entity, and the making available is part of a consistent pattern engaged in for the purpose of direct competition.

Section 5. Exclusions. Section 5 protection under the bill is unavailable for—

• information generated, gathered, organized, or maintained 

by a governmental entity or pursuant to a Federal statute or 

regulation; and

• computer programs (but databases incorporated into computer programs will receive protection).

Section 6. Relation to Other Laws. Section 6—

• preserves the law of copyrights, patents, trademarks, design 

rights, antitrust, trade secrets, privacy, access to public documents, misuse, and contract law;

• preempts state law that is the subject of the Act but does not 

preempt for cases involving something other than commercial competition;

• affirms the ‘‘savings’’ clause for the Communications Act of 

1934, along with securities laws, regulations, or market data; 

and

• clarifies that judicial doctrines of misuse apply.

Section 7. Civil Remedies. Section 7 includes the following remedies:

• a private right of action that may be brought in an appropriate U.S. district court for injunctive relief or actual damages, with double damages available when there is willful 

conduct, a history of database misappropriation, or a of necessity to deter future violations;

• an award of court costs and attorney’s fees to the prevailing 

party; and

• oversight by the Federal Trade Commission, the Copyright 

Office, and the Patent and Trademark Office.

Empowering an individual to prevent the misappropriation of his 

or her database through commencement of a civil action is eminently fair. In addition, section 7 permits the ‘‘prevailing’’ party to 

petition the court for costs and attorney’s fees. Thus, an owner’s 

right to bring suit is balanced with the specter of having to pay the 

defendant if the suit is meritless. The oversight function provided 

by the Federal Trade Commission, Register of Copyrights, and Director of the Patent and Trademark Office will also prevent frivolous litigation. All three Federal entities will essentially review the 

state of database litigation and offer their insights as to whether 

the public interest is served through enforcement of H.R. 3261. 

Section 7 of the bill was amended at the full Committee markup 

regarding the liability of Internet service providers (ISPs) under 

the terms of the bill. Representative Coble offered an amendment 

to exempt ISPs based on a description of their operations. The 

Coble amendment was substantially revised, however, by a seconddegree amendment offered by Representative Rick Boucher. The 

Boucher amendment states that no ‘‘provider of an interactive comVerDate jul 14 2003 03:00 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1
17

puter service [i.e., an ISP] shall be liable under section 3 for making available information that is provided by another information 

content provider.’’ In other words, the Boucher amendment essentially exempts an ISP from any liability based on its status as an 

ISP if it acts as a mere conduit when transferring information over 

the Internet provided by a third party source, such as a subscriber. 

Section 8. Limitation on Actions. Section 8 provides that 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. 

Section 9. Exclusion From Liability for Educational Institutions.

Section 9 excludes any ‘‘accredited nonprofit post-secondary educational institution or any nonprofit research laboratory’’ from liability under the Act. An exception to this exclusion lies if any 

shielded entity ‘‘makes available substantially all of a database in 

direct commercial competition’’ with a database owner as described 

in Section 3. 

The exclusion under section 9 was further expanded at full Committee markup when Representative Coble offered an amendment 

clarifying that the exclusion applies to the work of a student ‘‘acting in furtherance of supervised activities or programs.’’ The 

amendment also more accurately defines a ‘‘nonprofit’’ research laboratory. 

Section 10. Effective Date. Section 10 provides that the Act shall 

take effect on the date of the enactment of the Act, and shall apply 

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

Section 11. Nonseverability. This section provides that if, within 

10 years from the date of enactment, the Supreme Court of the 

United States holds that the provisions of section 3 are invalid 

under article I of the Constitution, then this Act is repealed, effective as of the date of the Supreme Court decision. 

Section 11 offers consolation to critics who assert that the bill 

violates the Copyright Clause of the U.S. Constitution (article I, 

section 8, clause 8). The Committee believes that the bill is constitutionally sound and is not a derivation of or an expansion to 

copyright since it is based on a misappropriation model. The Committee further notes that the Congress is fully empowered to legislate in this area based on its Commerce Clause power (article I, 

section 8, clause 3). 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of Rule XIII of the Rules of the 

House of Representatives, the Committee notes that this bill does 

not change existing law.

18

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, JANUARY 21, 2004

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

[Intervening business.] 

Chairman SENSENBRENNER. The next item on the agenda is H.R. 

3261, the ‘‘Database and Collections of Information Misappropriation Act.’’

The Chair recognizes the gentleman from Texas, Mr. Smith, the 

Chairman of the Subcommittee on Courts, the Internet, and Intellectual Property. 

Mr. SMITH. Mr. Chairman, the Subcommittee on Courts, the 

Internet, and Intellectual Property reports favorably the bill H.R. 

3261 with a single amendment in the nature of a substitute and 

moves its favorable recommendation to the full House. 

Chairman SENSENBRENNER. Without objection, the bill will be 

considered as read and open for amendment at any point. And the 

Subcommittee amendment in the nature of a substitute which the 

Members have before them will be considered as read, considered 

as the original text for purposes of amendment, and open for 

amendment at any point. 

[The amendment in the nature of a substitute follows:]

19 H.L.C.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 3261

AS REPORTED BY THE SUBCOMMITTEE ON

COURTS, THE INTERNET, AND INTELLECTUAL

PROPERTY

Strike all after the enacting clause and insert the

following:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Database and Collec3 tions of Information Misappropriation Act’’.

4 SEC. 2. DEFINITIONS.

5 In this Act:

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

7 work’’ means a work, such as a periodical issue, an8 thology, or encyclopedia, in which a number of con9 tributions, constituting separate and independent

10 works in themselves, are assembled into a collective

11 whole.

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

13 all commerce which may be lawfully regulated by the

14 Congress.

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

16 means a work formed by the collection and assem17 bling of preexisting materials or of data that are seVerDate jul 14 2003 03:00 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1

A3261.AAB
20

2

H.L.C.

1 lected, coordinated, or arranged in such a way that

2 the resulting work as a whole constitutes an original

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

4 collective works.

5 (4) COVERED ENTITY.—The term ‘‘covered en6 tity’’ means a legal entity that is—

7 (A) a telecommunications carrier engaged

8 in the provision of a telecommunications serv9 ice;

10 (B) a person engaged in the business of

11 providing an Internet access service;

12 (C) a person engaged in the business of

13 providing an Internet information location tool;

14 and

15 (D) a person similarly engaged in the

16 transmission, storage, retrieval, hosting, for17 matting, or translation (or any combination

18 thereof) of a communication made by another

19 person, without selection or alteration of the

20 content of the communication, except that such

21 person’s deletion of a particular communication

22 or material made available in commerce by an23 other person in violation of section 3 shall not

24 constitute such selection or alteration of the

25 content of the communication.


A3261.AAC
21

3

H.L.C.

1 (5) DATABASE.—

2 (A) IN GENERAL.—Subject to subpara3 graph (B), the term ‘‘database’’ means a collec4 tion of a large number of discrete items of in5 formation produced for the purpose of bringing

6 such discrete items of information together in

7 one place or through one source so that persons

8 may access them.

9 (B) EXCLUSIONS.—The term database

10 does not include any of the following:

11 (i) A work of authorship, other than

12 a compilation or a collective work.

13 (ii) A collection of information that

14 principally performs the function of ad15 dressing, routing, forwarding, transmit16 ting, or storing digital online communica17 tions or receiving access to connections for

18 digital communications, except that the

19 fact that a collection of information in20 cludes or consists of online location des21 ignations shall not by itself be the basis for

22 applying this clause.

23 (iii) A collection of information gath24 ered, organized, or maintained to perform

25 the function of providing schedule and proVerDate jul 14 2003 03:00 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1

A3261.AAD
22

4

H.L.C.

1 gram information for multichannel audio

2 or video programming.

3 (iv) A collection of information gath4 ered, organized, or maintained to register

5 domain name registrant contact data

6 maintained by a domain name registration

7 authority, unless such registration author8 ity takes appropriate steps to ensure the

9 integrity and accuracy of such information

10 and provides real-time, unrestricted, and

11 fully searchable public access to the infor12 mation contained in such collection of in13 formation.

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

15 database is a subset of a database shall not pre16 clude such subset from treatment as a database

17 under this Act.

18 (6) DOMAIN NAME.—The term ‘‘domain name’’

19 means any alphanumeric designation which is reg20 istered with or assigned by any domain name reg21 istrar, domain name registry, or other domain name

22 registration authority as part of an electronic ad23 dress on the Internet.

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

25 with another person who makes a database available


A3261.AAE
23

5

H.L.C.

1 in commerce if the act of making available in com2 merce is planned, arranged, coordinated, adjusted,

3 agreed upon, or settled between the two persons act4 ing together, in pursuance of some design or in ac5 cordance with some scheme.

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

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

8 intangible material capable of being generated or

9 gathered.

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

11 the combination of computer facilities and electro12 magnetic transmission media, and related equipment

13 and software, comprising the interconnected world14 wide network of computer networks that employ the

15 Transmission Control Protocol/Internet Protocol or

16 any successor protocol to transmit information.

17 (10) INTERNET ACCESS SERVICE.—The term

18 ‘‘Internet access service’’ means a service that en19 ables users to access content, information, electronic

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

21 may also include access to proprietary content, infor22 mation, and other services as part of a package of

23 services offered to consumers. Such term does not

24 include telecommunications services.


A3261.AAF
24

6

H.L.C.

1 (11) INTERNET INFORMATION LOCATION

2 TOOL.—The term ‘‘Internet information location

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

4 an online location on the World Wide Web. Such

5 term includes directories, indices, references, point6 ers, and hypertext links.

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

8 means a person, other than an individual, including

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

10 which is organized under the laws of the United

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

12 commonwealth, territory, or possession of the United

13 States, or the laws of a foreign country.

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

15 means to update, validate, or supplement the infor16 mation contained in the database.

17 (14) MAKING AVAILABLE IN COMMERCE TO

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

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

20 (A) a substantial number of members of

21 the public; or

22 (B) a number of persons that extends

23 beyond—

24 (i) a family and its social acquaint25 ances; or


A3261.AAG
25

7

H.L.C.

1 (ii) those who could reasonably antici2 pate to have a database made available in

3 commerce to them without a customary

4 commercial relationship.

5 A court may take into account repeated acts directed

6 to different persons by the same or concerted parties

7 in determining whether the limits imposed by sub8 paragraph (B)(ii) have been exceeded.

9 (15) TELECOMMUNICATIONS.—The term ‘‘tele10 communications’’ means the transmission, between

11 or among points specified by the user, of informa12 tion of the user’s choosing, without change in the

13 form or content of the information as sent and re14 ceived.

15 (16) TELECOMMUNICATIONS CARRIER.—The

16 term ‘‘telecommunications carrier’’ means any pro17 vider of telecommunications services, except that

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

19 ordinary course of its operations, makes telephones

20 available to the public or to transient users of its

21 premises, for interstate telephone calls using a pro22 vider of operator services.

23 (17) TELECOMMUNICATIONS SERVICE.—The

24 term ‘‘telecommunications service’’ means the offer25 ing of telecommunications for a fee directly to the


A3261.AAH
26

8

H.L.C.

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

2 available directly to the public, regardless of the fa3 cilities used.

4 SEC. 3. PROHIBITION AGAINST MISAPPROPRIATION OF

5 DATABASES.

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

7 commerce to others a quantitatively substantial part of the

8 information in a database generated, gathered, or main9 tained by another person, knowing that such making avail10 able in commerce is without the authorization of that

11 other person (including a successor in interest) or that

12 other person’s licensee, when acting within the scope of

13 its license, shall be liable for the remedies set forth in sec14 tion 7 if—

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

16 maintained through a substantial expenditure of fi17 nancial resources or time;

18 (2) the unauthorized making available in com19 merce occurs in a time sensitive manner and inflicts

20 injury on the database or a product or service offer21 ing access to multiple databases; and

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

23 the efforts of the plaintiff would so reduce the incen24 tive to produce or make available the database or


A3261.AAI
27

9

H.L.C.

1 the product or service that its existence or quality

2 would be substantially threatened.

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

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

5 equivalent in the same market as the database in a man6 ner that causes the displacement, or the disruption of the

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

8 (c) TIME SENSITIVE.—In determining whether an un9 authorized making available in commerce occurs in a time

10 sensitive manner, the court shall consider the temporal

11 value of the information in the database, within the con12 text of the industry sector involved.

13 SEC. 4. PERMITTED ACTS.

14 (a) INDEPENDENTLY GENERATED OR GATHERED IN15 FORMATION.—This Act shall not restrict any person from

16 independently generating or gathering information ob17 tained by means other than extracting it from a database

18 generated, gathered, or maintained by another person and

19 making that information available in commerce.

20 (b) ACTS OF MAKING AVAILABLE IN COMMERCE BY

21 NONPROFIT SCIENTIFIC OR RESEARCH INSTITUTIONS.—

22 Subject to section 9, the making available in commerce

23 of a substantial part of a database by a nonprofit scientific

24 or research institution, including an employee or agent of

25 such institution acting within the scope of such employVerDate jul 14 2003 03:00 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1

A3261.AAJ
28

10

H.L.C.

1 ment or agency, for nonprofit scientific or research pur2 poses shall not be prohibited by section 3 if the court de3 termines that the making available in commerce of the in4 formation in the database is reasonable under the cir5 cumstances, taking into consideration the customary prac6 tices associated with such uses of such database by non7 profit scientific or research institutions and other factors

8 that the court determines relevant.

9 (c) HYPERLINKING.—Nothing in this Act shall re10 strict the act of hyperlinking of one online location to an11 other or the providing of a reference or pointer (including

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

13 database.

14 (d) NEWS REPORTING.—Nothing in this Act shall re15 strict any person from making available in commerce in16 formation for the primary purpose of news reporting, in17 cluding news and sports gathering, dissemination, and

18 comment, unless the information is time sensitive and has

19 been gathered by a news reporting entity, and making

20 available in commerce the information is part of a con21 sistent pattern engaged in for the purpose of direct com22 petition.

23 SEC. 5. EXCLUSIONS.

24 (a) GOVERNMENT INFORMATION.—


A3261.AAK
29

11

H.L.C.

1 (1) IN GENERAL.—Except as provided in para2 graph (2), protection under this Act shall not extend

3 to—

4 (A) a database generated, gathered, orga5 nized, or maintained by a Federal, State, or

6 local governmental entity, or by an employee or

7 agent of such an entity, acting within the scope

8 of such employment or agency; or

9 (B) a database generated, gathered, or

10 maintained by an entity pursuant to and to the

11 extent required by a Federal statute or regula12 tion requiring such a database.

13 (2) EXCEPTION.—Nothing in this subsection

14 shall preclude protection under this Act for a data15 base gathered, organized, or maintained by an em16 ployee or agent of an entity described in paragraph

17 (1) that is acting outside the scope of such employ18 ment or agency, or by a Federal, State, or local edu19 cational institution, or its employees or agents, in

20 the course of engaging in education, research, or

21 scholarship.

22 (b) COMPUTER PROGRAMS.—

23 (1) PROTECTION NOT EXTENDED.—Subject to

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

25 extend to computer programs, including any comVerDate jul 14 2003 03:00 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00029 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1

A3261.AAL
30

12

H.L.C.

1 puter program used in the manufacture, production,

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

3 element of a computer program necessary to its op4 eration.

5 (2) INCORPORATED DATABASES.—A database

6 that is otherwise subject to protection under section

7 3 is not disqualified from such protection solely be8 cause it resides in a computer program, so long as

9 the collection of information functions as a database

10 within the meaning of this Act.

11 SEC. 6. RELATION TO OTHER LAWS.

12 (a) OTHER RIGHTS NOT AFFECTED.—

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

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

15 remedies concerning copyright, patent, trademark,

16 design rights, antitrust, trade secrets, privacy, ac17 cess to public documents, and misuse.

18 (2) RIGHT OF CONTRACT.—Notwithstanding

19 subsection (b), nothing in this Act shall affect

20 rights, limitations, or remedies concerning the com21 mon law right of contract.

22 (b) PREEMPTION OF STATE LAW.—

23 (1) LAWS REGULATING CONDUCT THAT IS SUB24 JECT OF THE ACT.—On or after the effective date

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


A3261.AAM
31

13

H.L.C.

1 common law doctrine that prohibits or otherwise reg2 ulates conduct that is prohibited or regulated under

3 this Act shall be effective.

4 (2) CLARIFICATION OF INAPPLICABILITY TO

5 CASES NOT INVOLVING COMMERCIAL COMPETI6 TION.—Paragraph (1) shall not apply to preempt ac7 tions under State law against a person for taking ac8 tions that—

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

10 a database; or

11 (ii) substantially impair the perceived accu12 racy, currency, or completeness of data in a

13 database by inaccurate, untimely, or incomplete

14 replication and distribution of such data; and

15 (B) do not involve the person making

16 available in commerce the data from such data17 base in competition with such database.

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

19 this Act shall affect the operation of section 222(e) or any

20 other provision of the Communications Act of 1934 (47

21 U.S.C. 151 et seq.), or shall restrict any person from mak22 ing available in commerce or extracting subscriber list in23 formation, as such term is defined in section 222(h)(3)

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

25 222(h)(3)).


A3261.AAN
32

14

H.L.C.

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

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

3 1933 (15 U.S.C. 78a et seq.), the Securities Ex4 change Act of 1934 (15 U.S.C. 78a et seq.), the

5 Public Utility Holding Company Act of 1935 (15

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

7 1939 (15 U.S.C. 77aaa et seq.), the Investment

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

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

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

11 1970 (15 U.S.C. 78aaa et seq.), or the rules or reg12 ulations thereunder;

13 (2) affect the authority of the Securities and

14 Exchange Commission; or

15 (3) apply to information with respect to

16 quotations for, or indications, orders, or transactions

17 in, securities.

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

19 under this Act.

20 SEC. 7. CIVIL REMEDIES.

21 (a) CIVIL ACTIONS.—

22 (1) COMMENCEMENT OF ACTIONS.—Any person

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

24 a civil action for such a violation in an appropriate

25 United States district court. Any action against a


A3261.AAO
33

15

H.L.C.

1 State governmental entity may be brought in any

2 court that has jurisdiction over claims against such

3 entity.

4 (2) NOTICE OF COMMENCEMENT OF ACTIONS

5 AND APPEALS.—Any person who brings an action

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

7 final decision on such an action, shall transmit no8 tice of such action or appeal to the Federal Trade

9 Commission, the United States Patent and Trade10 mark Office, and the Register of Copyrights, in ac11 cordance with subsection (i)(1).

12 (b) TEMPORARY AND PERMANENT INJUNCTIONS.—

13 Any court having jurisdiction of a civil action under this

14 section shall have the power to grant temporary and per15 manent injunctions, according to the principles of equity

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

17 to prevent or restrain a violation or attempted violation

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

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

20 enforced by proceedings in contempt or otherwise by any

21 United States district court having jurisdiction over that

22 person.

23 (c) MONETARY RELIEF.—

24 (1) ACTUAL DAMAGES AND ATTRIBUTABLE

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


A3261.AAP
34

16

H.L.C.

1 established in any civil action arising under this sec2 tion, the plaintiff shall be entitled to recover the ac3 tual damages sustained by the plaintiff as a result

4 of the violation and any profits of the defendant that

5 are attributable to the violation and are not taken

6 into account in computing the actual damages sus7 tained by the plaintiff. The court shall assess such

8 profits or damages or cause the same to be assessed

9 under its direction. In assessing profits the plaintiff

10 shall be required to prove defendant’s gross revenue

11 only and the defendant shall be required to prove all

12 elements of cost or deduction claims.

13 (2) ADDITIONAL DAMAGES.—In addition to ac14 tual damages, the court may enter judgment for an

15 additional amount not exceeding 2 times such actual

16 damages after considering the following factors:

17 (A) Whether the plaintiff notified the de18 fendant of the alleged violation and the defend19 ant continued to violate section 3.

20 (B) The willfulness of the defendant’s con21 duct.

22 (C) Whether the defendant has a history of

23 database misappropriation.

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


A3261.AAQ
35

17

H.L.C.

1 (E) Whether the alleged violation had a se2 rious negative financial impact on the plaintiff.

3 (F) Any good faith effort by the defendant

4 to rectify the misappropriation.

5 (G) Whether the assessment of additional

6 damages is necessary in order to deter future

7 violations.

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

9 under this section is pending, including an action seeking

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

11 on such terms as it deems reasonable, of all copies of con12 tents of a database made available in commerce or at13 tempted to be made available in commerce potentially in

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

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

16 may be reproduced. The court may, as part of a final judg17 ment or decree finding a violation or attempted violation

18 of section 3, order the remedial modification or destruc19 tion of all copies of contents of a database made available

20 in commerce or attempted to be made available in com21 merce in violation of section 3, and of all masters, tapes,

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

23 copies may be reproduced.

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

25 discretion may award reasonable costs and attorney’s fees


A3261.AAR
36

18

H.L.C.

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

2 fees if it determines that an action was brought or a de3 fense was raised under this Act in bad faith.

4 (f) ACTIONS AGAINST UNITED STATES GOVERN5 MENT.—Subsections (b) and (d) shall not apply to any ac6 tion against the United States Government.

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

8 provided under this section shall be available against a

9 State governmental entity to the extent permitted by ap10 plicable law.

11 (h) LIMITATION ON LIABILITY OF CERTAIN ENTI12 TIES.—A covered entity shall not be liable for a violation

13 under section 3 unless—

14 (1) the person who made the database available

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

16 employee, or agent of the covered entity acting with17 in the scope of the actor’s duties or agency;

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

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

20 or agency, actively directs or induces the act of mak21 ing available in commerce in violation of section 3 by

22 another person, or acts in concert with the person

23 who made the database available in commerce in vio24 lation of section 3; or


A3261.AAS
37

19

H.L.C.

1 (3) the covered entity receives a financial gain

2 or benefit that—

3 (A) is directly attributable to the making

4 available in commerce of the database, or the

5 content thereof, in violation of section 3; and

6 (B) is in excess of the ordinary compensa7 tion for the rendering of the services described

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

9 2(4) that are provided by the covered entity.

10 (i) OVERSIGHT OF CIVIL REMEDIES BY FTC AND

11 PTO.—

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

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

15 by regulation, prescribe the form and procedures by

16 which persons shall transmit the notices required by

17 subsection (a)(2).

18 (2) OVERSIGHT.—The Federal Trade Commis19 sion, the Director of the United States Patent and

20 Trademark Office, and the Register of Copyrights

21 shall review the actions conducted under this section

22 for the purposes of identifying instances in which ju23 dicial interpretation of this Act adversely or other24 wise materially affects the administration of laws

25 and policies within their respective jurisdictions.


A3261.AAT
38

20

H.L.C.

1 (3) AMICUS CURIAE BRIEFS.—The Federal

2 Trade Commission, the Director of the United

3 States Patent and Trademark Office, and the Reg4 ister of Copyrights may, in appropriate instances,

5 file briefs as friends of the court in appeals from

6 final decisions of actions under this section.

7 (4) REPORTS.—The Federal Trade Commis8 sion, the Director of the United States Patent and

9 Trademark Office, and the Register of Copyrights

10 shall, within 18 months after the date of the enact11 ment of this Act, each transmit a report to the Com12 mittee on the Judiciary and the Committee on En13 ergy and Commerce of the House of Representatives

14 and the Committee on the Judiciary and the Com15 mittee on Commerce, Science, and Transportation of

16 the Senate on their operations under this subsection.

17 Such reports shall include—

18 (A) a summary of any briefs filed;

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

20 the judicial decisions reviewed on existing laws

21 and policies within its jurisdiction; and

22 (C) any recommendations for legislative or

23 other changes that the Commission, the Direc24 tor of the Patent and Trademark Office, or the


A3261.AAU
39

21

H.L.C.

1 Register of Copyrights, as the case may be, con2 siders appropriate.

3 SEC. 8. LIMITATION ON ACTIONS.

4 No civil action shall be maintained under this Act un5 less it is commenced within 2 years after the cause of ac6 tion arises or claim accrues.

7 SEC. 9. EXCLUSION FROM LIABILITY FOR EDUCATIONAL IN8 STITUTIONS.

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

10 (c), no liability shall be imposed under this Act on any

11 accredited nonprofit postsecondary educational institution

12 or any nonprofit research laboratory, or on any employee

13 of such institution or laboratory acting within the scope

14 of his or her employment, by reason of activities under15 taken for nonprofit education, scientific, or research pur16 poses.

17 (b) ACCREDITATION.—For purposes of this section,

18 accreditation shall be as determined by a regional or na19 tional accrediting agency recognized by the Council on

20 Higher Accreditation or the United States Department of

21 Education.

22 (c) EXCEPTION.—Subsection (a) does not apply to an

23 institution, laboratory, or employee of such institution or

24 laboratory to the extent that the institution, laboratory,

25 or employee makes available substantially all of a database


A3261.AAV
40

22

H.L.C.

1 in direct commercial competition with a person who made

2 the substantial expenditure described in section 3(a)(1)

3 with respect to the database, or such person’s successor

4 in interest.

5 SEC. 10. 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 on or after the date of the enactment of this Act 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. 11. 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 against misappropriation of databases,

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

23 to, the Constitution of the United States, then this Act

24 is repealed, effective as of the date of the Supreme Court

25 decision.


A3261.AAW
41

23

H.L.C.

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


A3261.AAX
42

Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from Texas, Mr. Smith, to strike the last word. 

Mr. SMITH. Mr. Chairman, electronic compilations and other collections of factual material are indispensable to the American economy. These information products place a wealth of data at the fingertips of businesses, professionals, scientists, scholars, and consumers. Databases are essential tools for improving productivity, 

advancing education and training, and creating a more informed 

citizenry. But several recent legal and technological developments 

threaten to reduce incentives for investments needed to maintain 

and expand databases. 

Introduced by our colleague Representative Coble, H.R. 3261 will 

provide protection for databases and incentives for their creators to 

continue producing these valuable tools, a product of much negotiation and compromise—— Mr. SCOTT. Mr. Chairman we are having trouble hearing down 

on this end. 

Mr. SMITH. A product of much negotiation and compromise, the 

legislation is narrowly tailored to target bad actors while preserving the ability of consumers to access and use information. 

Mr. Chairman, I will yield the balance of my time to the gentleman from North Carolina, the originator of the legislation. 

Mr. COBLE. I thank the gentleman for yielding. 

Mr. Chairman, let me give the Members a little background. This 

has gone around the block several times. I think in the 105th Congress, the bill passed the House only to languish in the Senate. 

And in the waning days of that session, I received commitment and 

promises from a Democrat Senator and a Republican Senator, and 

they assured me it would be the first order of business when the 

next session convened. Well, that never came to pass. 

We have many people, influential interested supporters and advocates for each side of this issue. And when that occurs, Mr. 

Chairman, as you know, the result usually is compromise. This bill 

before us today is not only a compromise, it is a very watered-down 

version compared to the initial bill. I can live with it, and I hope 

most of the others can. But I do believe databases have value, they 

are worth protecting. Individuals and businesses would not have 

devoted time, energy, and financial resources were it otherwise. 

And, sadly, free riders would not try to steal databases if their 

compilations lacked value. 

Finally, I want to assure the Members that no one has tried to 

‘‘bull rush’’ this matter through. 

Mr. Chairman, I thank you and the Ranking Member. I thank 

the Chairman of the Commerce Committee, Mr. Tauzin. You all 

conducted several open discussions. I was in absentia most of those 

because, for other reasons, I was not assigned to the IP committee 

at that time. But I am told that those sessions were productive. 

And I think what we have here is, as I say, a watered-down compromised version. There are a number of accommodations that 

have been made for the benefit of those who were less enthusiastic 

about reform. The amount of additional damages have been lowered; the criminal penalties have been deleted; we have established 

a knowledge standard as a precursor to liability; and, finally, we 

expand current exemptions for universities, research entities, news 

reporting, et cetera. 

43

Mr. Chairman, this is a product of compromise and give and 

take. It is, in fact, a poster child of sorts for the legislative process. 

I hope that we can ultimately and finally put the database issue 

to bed, at least on the House side, by enacting this bill, and I urge 

its adoption and yield back the balance of my time. 

Chairman SENSENBRENNER. The time belongs to the gentleman 

from Texas, Mr. Smith. 

Mr. COBLE. I yield back to the gentleman from Texas. 

Mr. SMITH. Mr. Chairman, and I yield back the balance of my 

time. 

Chairman SENSENBRENNER. Who wishes to give the opening 

statement on the minority side? The gentleman from Virginia, Mr. 

Boucher, is recognized for 5 minutes. 

Mr. BOUCHER. Well, thank you very much, Mr. Chairman. 

I am rising in opposition to this measure because I frankly think 

it is not needed, and I am very concerned that if this bill is passed 

into law there will be a truly mischievous consequence. Genuine 

damage can be done to the ability of the public to have access to 

facts that are necessary for carrying on many commercial and noncommercial activities. 

First let me say that the remedies herein contained simply is not 

necessary. Copyright law has been interpreted by the courts to provide remedies in many of the instances where people are seeking 

protection for created databases. The realtors, for example, have 

been able to protect their multiple listing service through traditional copyright principles. The courts have found that there is 

enough originality in the creation of the multiple listings that copyright applies and protection has been accorded. 

Thompson and Thompson was able to obtain through traditional 

copyright and trademark remedies protection for trademark databases organized by word, organized by mark, and by combinations 

of word and mark. 

Another remedy frequently applied to provide relief has been 

common-law trespass causes of action. And eBay has succeeded in 

having its databases protected from parties that were intruding 

into the server on a frequent basis under a common-law theory of 

trespass. Misappropriation of property has been used very successfully by those who were claiming protection for databases. 

Beyond that, principles of contract can apply. And where there 

are subscription license agreements between the creator of the 

database and the subscriber, those legal theories also offer adequate protection. 

The Digital Millennium Copyright Act also offers protection because it makes it unlawful to circumvent a technical protection 

measure that guards access to a copyrighted work. And where the 

creator has created a database and then encrypts that, the DMCA 

offers a measure of protection with respect to those who would seek 

to circumvent that technical protection measure. 

Not only is this not needed, but its enactment into law truly 

would be mischievous. I am quite concerned that people involved 

in scientific research and other kinds of research in the creation of 

information that is shared on a daily basis in our society would be 

badly inhibited from their ability in order to engage in that normal 

discourse and in the compilation of reports and other documents 

that are very useful in our society. 

44

I think if this bill becomes law, there is going to be lots of litigation. The experience of the European Union which adopted a database protection measure several years ago is not encouraging in 

this respect. More than 100 reported cases have emanated from 

that provision so far, and many of the results in these reported 

cases are conflicting. And so a great deal of confusion and an enormous amount of litigation has certainly been the experience in the 

European Union. I daresay we would have a similar experience 

here in the United States. 

A very large coalition of interested parties has announced opposition to this bill, ranging from the chamber of commerce and financial services companies, Internet companies such as AOL, AT&T, 

Yahoo, Internet service providers including Verizon and SBC, and 

public interest organizations including a large number of associations representing libraries. Even the National Academy of 

Sciences has urged that this measure not be adopted because of the 

adverse effect that it can have on the conduct of legitimate scientific research. 

I think the measure is unnecessary. I think that if Members of 

the House Commerce Committee, who I know to some extent were 

involved in discussions regarding the bill that is before the Committee today, were consulted, very few if any Members of that 

Committee would actually say they support the passage of this bill, 

and I think the general sentiment in the House at large is not inconsistent with what one would expect from the House Commerce 

Committee. 

Mr. Chairman, today I am going to offer some amendments that 

hopefully would improve the measure some. I hope at the end of 

that process it would be the pleasure of this Committee not to report the bill. 

Thank you, Mr. Chairman. And I yield back. 

Chairman SENSENBRENNER. Without objection, all Members’

opening statements will be included in the record at this point. 

Chairman SENSENBRENNER. Are there amendments? The gentleman from North Carolina, Mr. Coble. 

Mr. COBLE. I have an amendment at the desk, Mr. Chairman. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. COBLE. Number 572. 

The CLERK. Amendment to the amendment in the nature of a 

substitute. 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and open for amendment at any point. 

[The amendment to the amendment in the nature of a substitute 

follows:]

45 H.L.C.

AMENDMENT TO THE AMENDMENT IN THE

NATURE OF A SUBSTITUTE TO H.R. 3261

OFFERED BY MR. COBLE

Strike section 9 and insert the following:

1 SEC. 9. EXCLUSION FROM LIABILITY FOR EDUCATIONAL IN2 STITUTIONS AND RESEARCH LABORATORIES.

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

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

5 (1) any accredited nonprofit postsecondary edu6 cational institution or any nonprofit research labora7 tory,

8 (2) any employee of such educational institution

9 or laboratory acting within the scope of his or her

10 employment, or

11 (3) any student enrolled in such educational in12 stitution acting in furtherance of the supervised ac13 tivities or programs of the institution,

14 by reason of activities undertaken for nonprofit education,

15 scientific, or research purposes.

16 (b) ACCREDITATION.—For purposes of this section,

17 accreditation shall be as determined by a regional or na18 tional accrediting agency recognized by the Council on


AB3261.AAB
46

2

H.L.C.

1 Higher Accreditation or the United States Department of

2 Education.

3 (c) NONPROFIT RESEARCH LABORATORY.—For pur4 poses of this section, a nonprofit research laboratory is

5 a nonprofit research organization that is primarily en6 gaged in basic or applied scientific research, or both, and

7 that is a qualified organization as defined in section

8 41(b)(6)(B) of the Internal Revenue Code of 1986 for pur9 poses of the research credit determined under section 41

10 of such Code.

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

12 an institution, laboratory, employee of such institution or

13 laboratory, or student of such institution to the extent that

14 the institution, laboratory, employee, or student makes

15 available substantially all of a database in direct commer16 cial competition with a person who made the substantial

17 expenditure described in section 3(a)(1).


AB3261.AAC
47

Chairman SENSENBRENNER. At this time, the Chair will declare 

a recess for Members to go to lunch. Since the votes are going to 

start momentarily, I would ask the Members to return to the Committee meeting promptly after the last of the series of four votes, 

where we will resume consideration of this legislation. I would like 

to get this legislation, which is somewhat controversial, concluded 

in the Committee, as well as H.R. 3291 which is the cooperative 

research and technology bill before we adjourn today. I understand 

that the second bill is not very controversial. But if we can get both 

of these bills resolved today, it will make our work next week much 

better. 

Mr. CONYERS. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. Might I just inquire, are there any prospective 

plans for the Committee for next week? 

Chairman SENSENBRENNER. The Chair has announced that the 

items on the markup agenda that are not concluded today will be 

considered at a markup next Wednesday. 

Mr. WEINER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from New York. 

Mr. WEINER. Just so I understand, because I have an interest in 

this bill, what you just said is we are going to come back after the 

last vote for the week? 

Chairman SENSENBRENNER. Yes. And we will finish this bill up 

and hopefully finish up the research and—Cooperative Research 

and Technology Act. 

The Committee stands recessed until after the last vote. Members will return promptly. 

[Whereupon, at 12:07 p.m., the Committee recessed, to reconvene 

at 1:10 p.m., the same day.] 

AFTERNOON SESSION. 

Chairman SENSENBRENNER. The Committee will be in order. 

When the Committee recessed earlier today, pending was a motion to report favorably the bill H.R. 3261. The bill was considered 

as read and open for amendment at any point, and the Subcommittee amendment in the nature of a substitute was moved and 

was considered as the original text for purposes of amendment. 

There was an amendment that was offered, an amendment to the 

substitute amendment that was offered by the gentleman from 

North Carolina, Mr. Coble, which was read. The gentleman from 

North Carolina is recognized for 5 minutes. 

Mr. COBLE. I thank the Chairman. 

Mr. Chairman, the Database Coalition and representatives of the 

University and Research Entity Community developed this amendment to section 9 of the bill which excludes educational institutions 

and research labs from liability under H.R. 3261. The amendment 

clarifies that the exclusion applies to the work of a student, quote, 

acting in furtherance of supervised activities or programs, close 

quote. The amendment also more accurately defines a nonprofit research lab, and this is essentially a perfecting amendment that was 

worked out between the affected parties. It is noncontroversial, and 

I urge its adoption. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment to the amendment in the nature of a substitute offered 

by the gentleman from North Carolina. 

48

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it. The amendment 

to the amendment in the nature of a substitute is agreed to. 

The gentleman from North Carolina. 

Mr. COBLE. I have another amendment at the desk. 

Chairman Sensenbrenner. The clerk will report the amendment. 

Mr. BOUCHER. Mr. Chairman, I have an amendment to this 

amendment. 

Chairman SENSENBRENNER. The procedure is for the clerk to report the amendment, the gentleman from North Carolina to be recognized for 5 minutes, and then the Chair will recognize the gentleman from Virginia and he can offer his amendment to the 

amendment. 

Mr. BOUCHER. Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Without objection, the amendment 

offered by Mr. Coble is considered as read and open for amendment 

at any point. And the gentleman from North Carolina is recognized 

for 5 minutes. 

[The amendment to the amendment in the nature of a substitute 

follows:]

49 H.L.C.

AMENDMENT TO THE AMENDMENT IN THE

NATURE OF A SUBSTITUTE TO H.R. 3261

OFFERED BY MR. COBLE

In section 2—

(1) strike paragraphs (4), (10), (11), (15),

(16), and (17); and

(2) strike paragraph (14) and insert the following:

1 (11) MAKING AVAILABLE IN COMMERCE TO

2 OTHERS.—(A) The term ‘‘making available in com3 merce to others’’ means making available in com4 merce to—

5 (i) a substantial number of members of the

6 public; or

7 (ii) a number of persons that extends

8 beyond—

9 (I) a family and its social acquaint10 ances; or

11 (II) those who could reasonably antici12 pate to have a database made available in

13 commerce to them without a customary

14 commercial relationship.

15 (B) A court may take into account repeated

16 acts directed to different persons by the same or


AC3261.AAB
50

2

H.L.C.

1 concerted parties in determining whether the limits

2 imposed by subparagraph (A)(ii)(II) have been ex3 ceeded.

4 (C) Except as provided in subparagraphs (E)

5 and (F), the term ‘‘making available in commerce to

6 others’’ shall not include—

7 (i) the transmission of a database by a

8 legal entity through its system or network by

9 means of an automated technical process, if

10 such transmission is initiated by or at the direc11 tion of a person other than the legal entity and

12 the intended recipients of the transmission are

13 determined solely by such person;

14 (ii) the routing of a transmission to other

15 persons by a legal entity through its system or

16 network by means of an automated technical

17 process, if the routed transmission was initiated

18 by or at the direction of a person other than

19 the legal entity and the intended recipients of

20 the transmission are determined by such per21 son;

22 (iii) the storage, caching, or hosting by a

23 legal entity of a database that resides on its

24 system or network, if such storage, caching, or

25 hosting was initiated by or at the direction of


AC3261.AAC
51

3

H.L.C.

1 a person other than the legal entity and the re2 cipients of the database are determined solely

3 by such person;

4 (iv) the provision of hyperlinking from one

5 online location to another by a legal entity or

6 its provision of a reference or pointer (including

7 such reference or pointer in a directory or

8 index) to a database; or

9 (v) any combination of clauses (i) through

10 (iv).

11 (D) In determining whether an exception in

12 subparagraph (C) applies—

13 (i) the intended recipients of a database

14 may be considered as being determined solely

15 by a person other than a legal entity when such

16 person makes the database available to a lim17 ited number of other persons, makes the data18 base available to members of the public without

19 limitation, or makes the database available in

20 an area that the legal entity restricts to certain

21 individuals, such as clubs or user groups; and

22 (ii) an act of transmission, storage, or

23 caching by a legal entity shall not be considered

24 to be initiated by a legal entity if that entity

25 merely moves the database, along with other


AC3261.AAD
52

4

H.L.C.

1 content residing on its system or network, to a

2 different server or servers in order to improve

3 the operation or efficiency of its system or net4 work.

5 (E) The term ‘‘making available in commerce to

6 others’’ shall include any act described in subpara7 graph (C) that is carried out by a legal entity if the

8 legal entity—

9 (i) receives any financial gain or benefit

10 which it knows is directly attributable to the

11 making available in commerce of the database

12 and such gain or benefit is in excess of the ordi13 nary compensation for the rendering of the

14 service described in subparagraph (C); or

15 (ii) actively directs or induces the act of

16 making available in commerce of the database

17 by another person, or acts in concert with the

18 person who made the database available in com19 merce.

20 (F) The fact that an act by a legal entity is not

21 considered to be an act of ‘‘making available in com22 merce to others’’ under subparagraph (C) shall not

23 prevent the customer or user of the legal entity’s

24 services from being liable for that act.

Redesignate the remaining paragraphs accordingly.


AC3261.AAE
53

5

H.L.C.

In section 4, strike subsection (c) and redesignate

the succeeding subsections accordingly.

In section 7, strike subsection (h) and redesignate

the succeeding subsections accordingly.


AC3261.AAF
54

Mr. COBLE. I thank the Chairman. 

Mr. Chairman and Members of the Committee, my amendment 

addresses the treatment of Internet service providers or ISPs under 

the bill. First, I want to thank my friend from Virginia, Mr. Boucher, for his keen interest in this subject. And by the way, Mr. Boucher, you mentioned earlier about the realtors. The realtors are 

some of my most vocal supporters for this proposal. And Mr. Chairman, at this time I would like to ask unanimous consent to submit 

for the record the list of members of the Database Coalition. 

Chairman SENSENBRENNER. Without objection. 

[The material referred to follows:]

SAMPLING OF DATABASE COALITION SUPPORTERS

Thompson Publishing 

Reed-Elsiveer 

Software Information Industry Association 

E-Bay 

American Association of Publishers 

McGraw Hill 

Monster.com 

Newspaper Association of America 

American Medical Association 

National Association of Realtors

Mr. COBLE. Which is impressive, if you will pardon my modesty. 

When it became clear that the ISP representatives were dissatisfied with the treatment of their industry as set forth in H.R. 3261, 

we attempted to develop an amendment that would satisfy their 

demands without compromising the core provisions of the bill. I 

want to thank the members of the Database Coalition and the ISP 

community, for that matter, for trying to resolve the differences in 

advance of the markup. Whatever the outcome of this debate, I 

renew my pledge to work with Mr. Boucher and others and the affected constituents with language acceptable to both sides that 

could be incorporated in a manager’s amendment in advance of 

floor consideration. 

My amendment stands for the proposition that an ISP should not 

be liable for indulging in normal ISP activity under the bill. It excludes an ISP from any liability when it is transmitting, retrieving, 

routing a transmission, cashing or hosting a database on behalf of 

its users. It furthermore clarifies that an ISP cannot be held liable 

for hyperlinking and related activities. Some ISPs have taken issue 

with the enumeration of the listing of activity that should be exempted, arguing that the list should not cover activities that are 

unforeseen at this time and which ISPs may subsequently adopt. 

My response to that is that, given this, the ISP community, it appears, wants to acquire immunization based on its status within an 

industry, not based on what the members of that industry may do. 

If ISPs are exempted in this way, we will have unwittingly, I believe, created a major loophole that will allow bad actors or pirates, 

if you will, to steal databases and claim immunity under a meaningless exception. 

I supplement this point, Mr. Chairman, by adding that the 

amendment precludes any entity from claiming the ISP exemption 

when the entity benefits from a pirating of a database or acts in 

concert with a pirate. A good-faith ISP would never meet those conditions it seems to me. 

55

My amendment cannot forecast how the ISP community will operate in all respects, years, or even months, from this date. But I 

believe it is a good-faith attempt to accord ISPs fair treatment 

under a bill that has been greatly watered down, as I said before, 

through the years, probably 8 or 9 years this has been kicking 

around, at the expense of the affected database owners. I urge my 

Members to adopt this amendment, and yield back the balance of 

my time. 

Mr. BOUCHER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Virginia. 

Mr. BOUCHER. Thank you very much, Mr. Chairman. I have an 

amendment to the amendment offered by the gentleman from 

North Carolina. 

Chairman SENSENBRENNER. The clerk will report the amendment 

to the amendment. 

Mr. BOUCHER. And it is listed as Boucher 027. 

The CLERK. Amendment to the amendment. 

Mr. BOUCHER. And Mr. Chairman, I ask unanimous consent that 

the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. And 

the gentleman from Virginia is recognized for 5 minutes. 

[The amendment to the amendment to the amendment in the nature of a substitute follows:]

Mr. BOUCHER. Thank you very much, Mr. Chairman. 

This amendment also would provide an exemption to Internet 

service providers. It is very simple in its construction. It basically 


A3261A.eps
56

tracks the provision in the Digital Millennium Copyright Act that 

largely resulted from the efforts in 1998 of our colleague on this 

Committee, Mr. Goodlatte, which exempts from liability mere conduits of information, such as Internet service providers who merely 

operate the electronic facilities that transmit data. These electronic 

conduits have no role in the creation of the data in question; they 

do not monitor the data in question; they merely operate as the 

electronic service that enables the movement of that data into commerce. And just as they were exempted from liability under the 

provisions of the DMCA, an exemption, which, by the way, s 

worked very well in practice, they should be exempted by the same 

basic, very clean and straightforward approach in the bill that we 

have under consideration today. The amendment that I am offering 

to Mr. Coble’s amendment would provide that exemption. 

The problem that I have with Mr. Coble’s bill and his efforts in 

providing an ISP exemption is the language that appears on page 

4 of his amendment, lines 15 through 19. And in that language, 

there first of all I think is some ambiguity as to its application. The 

language that I am offering would be somewhat more straightforward. The major problem is that a person who is working for an 

Internet service provider could well be described in the language 

that I have just identified on lines 15 through 19, someone who actively directs the activity of the Internet service provider, the major 

function of which is to make sure that data does flow through those 

facilities. And there is certainly room to interpret that the very activity of operating the ISP could fall within the ambient of this language. And if it were so interpreted, then the ISP would not be 

able to take advantage of the exemption that the gentleman from 

North Carolina is proposing. 

I think the one that I am offering offers an unambiguous, very 

direct approach, and as I indicated it is very consistent with the 

approach we took with respect to mere conduits under the DMCA, 

and I would hope it would be the privilege of this Committee to accept it. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. BOUCHER. And I would be happy to yield to the gentlewoman 

from California. 

Ms. LOFGREN. I would just like to express my support of your 

amendment to the amendment, and note that in the amendment 

proposed by our friend from North Carolina, there are a whole series of definitions that I think inevitably will lead to litigation and 

sometimes yield results not likely intended, as we have discovered 

with the DMCA itself. 

The language proposed in the amendment to the amendment, on 

the other hand, has already been out in the marketplace, it has to 

some extent been tested. I think it is clear and unlikely to lead to 

substantial litigation and I think does achieve the goals that I 

think is the intention of Mr. Coble. And I commend the gentleman 

for his amendment and look forward to supporting it. And I yield 

back to the gentleman from Virginia. 

Mr. BOUCHER. I thank the gentlewoman for her comments and 

her support of this amendment. And Mr. Chairman, I yield back. 

Mr. COBLE. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from North Carolina. 

Mr. COBLE. Mr. Chairman, I will just respond very briefly. 

57

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. COBLE. This will surprise none of us. We all become subjectively involved. My friend from Virginia thinks his amendment is 

better; I think my amendment is better. Subjectivity. But I pretty 

well stated my position earlier, and I think ours is the better of the 

two and urge the defeat of the Boucher amendment and support of 

my amendment. 

Mr. GOODLATTE. Mr. Chairman. 

Chairman SENSENBRENNER. The other gentleman from Virginia, 

Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I wanted to commend both gentlemen for their efforts to address a problem that exists in the bill. I support the amendment to the amendment offered 

by Congressman Boucher, and I would like to tell you why. The 

Internet continues to drive innovation and provide efficiency for 

consumers and businesses. We must continue to create policy that 

provides incentives for the Internet to thrive so that consumers and 

businesses can continue to reap the benefits of this revolutionary 

technology. I support this amendment because it helps to ensure 

that the Internet will thrive. 

The purpose of the underlying bill is to punish those that misappropriate another person’s database. This amendment would 

clarify that providers of interactive computer services would not be 

liable when a third party uses their services to make available a 

database in violation of this act. Providers of interactive computer 

service are some of the basic building blocks of the Internet, and 

this amendment would ensure that when acting as mere conduits, 

they would not be liable for violation to the act. 

In addition, the protection offered by this amendment applies 

only when a third party provides the offending content. So if an 

interactive computer service provider actually provides the offending information and makes it available, it is my understanding that 

they would be liable. 

The amendment will protect some of the basic building blocks of 

the Internet and help ensure that it grows and thrives. And I want 

to commend the gentleman from North Carolina. While I think this 

amendment is more comprehensive in addressing this problem with 

Internet service providers, nonetheless I have worked with him for 

years on his effort to produce a database bill. I think the bill is vitally important. In that regard I disagree with my colleague from 

Virginia, but with respect to this amendment I think it definitely 

perfects the bill and would urge my colleagues to support it. 

Chairman SENSENBRENNER. The gentleman yields back the balance of his time. The gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. Mr. Chairman, Mr. Coble has made a good-faith effort to satisfy the ISP community’s concerns with this language. 

The amendment will prevent an ISP from being liable for engaging 

in its normal business activities. I do not believe an ISP should receive a blanket exemption from liability just by virtue of being a 

service provider. It is unfair for an ISP to be exposed to liability 

58

for merely acting as a conduit for information. This language 

strikes an appropriate balance and allows ISPs to engage in their 

day-to-day activities without the fear of being exposed to liability. 

I urge my colleagues to adopt the underlying amendment and oppose any amendments to Mr. Coble’s amendment. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on—— Mr. CONYERS. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. Thank you, sir. Excuse my having to leave the 

Committee room. 

Could I ask both my friends from the South to explain to me 

what the differences between their approach are, just essentially—— Mr. BOUCHER. Would the gentleman yield? 

Mr. CONYERS. Of course. With pleasure. 

Mr. BOUCHER. I thank the gentleman for yielding. 

Both Mr. Coble and I are seeking to put forth a provision that 

would exempt ISPs from liability under the bill. The amendment 

that I have offered that accomplishes this result tracks very closely 

the approach that we took with the Digital Millennium Copyright 

Act in 1998. As the gentlewoman from California indicated, that 

approach has been well received, it has been very effective in application, it has been interpreted in the courts, and generally it is accorded a high degree of success. It is straightforward, it is quite 

simple in its application, and the gentleman from Virginia Mr. 

Goodlatte very articulately described the way that it would work 

in practice. 

The problem that I have with the amendment that has been offered by Mr. Coble is that the very act of operating an ISP would 

involve directing the flow of data through the ISP. And there is 

language contained within Mr. Coble’s amendment that could be 

interpreted to say that that very act of operating the Internet service provider, even though the operator has no control over the data, 

even though he doesn’t monitor the data, even though the data 

simply flows through his system, by virtue of the very fact that he 

is operating the system, his ISP for which he works could be subject to liability under the bill. 

That is the principal problem that I have with Mr. Coble’s language. I think it is unnecessarily complex quite apart from that, 

but it is a construction which I think is considerably more complex 

than what I am offering. 

And let me simply add one other thing, and that is that the ISPs 

support the amendment that I have offered and do not support the 

one that Mr. Coble has. I thank the gentleman. 

Mr. CONYERS. May I now turn to my friend. 

Mr. COBLE. I say to my friend from the North——

Mr. CONYERS. To my friend from the South. 

Mr. COBLE.—asked a very fair question. And this may be subject 

to interpretation. But it seems to me that the Boucher amendment 

pretty well extends a blanket exemption if you are an ISP. Mine 

is drawn more narrowly. And I just don’t think there is any way 

that a way good-faith ISP is going to be penalized under my 

amendment. 

Mr. CONYERS. I return my time. 

59

Chairman SENSENBRENNER. The question is on the Boucher 

amendment to the Coble amendment to the amendment in the nature of a substitute. 

Those in favor will say aye. 

Opposed, no. 

The noes appear to have it. 

Mr. BOUCHER. rollcall. 

Chairman SENSENBRENNER. rollcalled is ordered. The question is 

on agreeing to the Boucher amendment to the Coble amendment to 

the amendment in the nature of a substitute. 

Those in favor will, as your names are called, answer aye. 

Those opposed, no. 

And the clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

[No response.] 

The CLERK. Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. 

Ms. Hart. 

Ms. HART. Aye. 

The CLERK. Ms. Hart, aye. 

Ms. HART. No. 

The CLERK. Ms. Hart, no. 

Mr. Flake. 

[No response.] 

The CLERK. Mr. Pence. 

[No response.] 

60

The CLERK. Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Carter. 

[No response.] 

The CLERK. Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mrs. Blackburn. 

Mrs. BLACKBURN. No. 

The CLERK. Mrs. Blackburn, no. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Mr. Nadler. 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. Aye. 

The CLERK. Ms. Baldwin, aye. 

Mr. Weiner. 

[No response.] 

The CLERK. Mr. Schiff. 

Mr. SCHIFF. Pass. 

The CLERK. Mr. Schiff, pass. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

61

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Are there Members who wish to cast 

or change their vote? The gentlewoman from Pennsylvania. 

Ms. HART. Thank you. No to aye. 

The CLERK. Ms. Hart, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 17 ayes, 7 noes, and a pass. 

Chairman SENSENBRENNER. And the amendment to the amendment to the amendment in the nature of a substitute is agreed to. 

The question is now on agreeing to the Coble amendment, as 

amended by the Boucher amendment. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it and the amendment, as amended, is agreed to. 

Are there further amendments? 

Mr. BOUCHER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Virginia. 

Mr. BOUCHER. Mr. Chairman, I have an amendment, Boucher 

022. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute. 

Mr. BOUCHER. And Mr. Chairman, I ask unanimous consent that 

the amendment be considered as read. 

[The amendment to the amendment in the nature of a substitute 

follows:]

62 H.L.C.

AMENDMENT TO THE AMENDMENT IN THE

NATURE OF A SUBSTITUTE TO H.R. 3261

OFFERED BY MR. BOUCHER

Page 22, strike lines 5 through 17 and insert the

following:

1 SEC. 10. EFFECTIVE DATE.

2 This Act shall take effect on the date of the enact3 ment of this Act, and shall not apply to a database that

4 is made available in commerce before such date of enact5 ment.


A3261B.AAB
63

Chairman SENSENBRENNER. If the gentleman will withhold for a 

second. Without objection, so ordered. The gentleman is recognized 

for 5 minutes. 

Mr. BOUCHER. Thank you, Mr. Chairman. 

This amendment very simply would make the bill prospective in 

its application. The bill says, as a part of its text, that the only 

databases that would qualify for protection under the bill are those 

that are made available to the public in a time-sensitive manner. 

And yet the bill, by its terms, is also made retroactive, meaning 

that it would apply to databases that are presently in existence. 

It seems to me that it is impossible for the time sensitivity requirement to have any real meaning if in fact this bill would apply 

to databases that are in existence at the date that the law becomes 

effective. And so the amendment simply repeals the retroactivity 

provision and would make the bill prospective only in its application. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. BOUCHER. And I would be happy to yield to the gentlewoman. 

Ms. LOFGREN. I think I agree with this amendment. It appears 

to me that the underlying bill is attempting to conform to NBA 

versus Motorola in the hot news exception to the Feist case that 

disrupted the sweat-of-the-brow theory back in 1991. However, Motorola defined hot news—among one of the four tests was ‘‘highly 

time sensitive,’’ whereas the bill itself merely says ‘‘time sensitive.’’ and I know that your amendment, I think it makes a lot of sense, 

that how could it be highly time sensitive if it were retroactive? 

But I guess the question is, wouldn’t we also need to deal with 

the highly-time-sensitive versus time-sensitive issue to have any 

chance at all of meeting the objections made by the Court under 

the copyright clause in Feist? 

Mr. BOUCHER. I think the gentlewoman raises an excellent point, 

and I would certainly support her amendment, should she choose 

to offer it, that would change the standard within the bill from 

merely being time sensitive to actually track the Motorola decision 

and say highly time sensitive. I think she makes an excellent point. 

Either way, the bill should only be prospective in application, and 

that is what this amendment would achieve. 

Mr. Chairman, I yield back and urge adoption of the amendment. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. My friend from Virginia 

prevailed on the last point; let me see if I can regroup on this one, 

Mr. Chairman. 

The whole point, Members, of database reform it seems to me is 

to protect those compilations. They have value to consumers and 

businesses. Under the protection afforded by the bill, persons will 

not only have an incentive to create new databases, owners will 

have an incentive to maintain existing compilations. The amendment, I fear, would deny protection to databases already in existence at the time of enactment. 

This just seems to me to be patently unfair. What incentives will 

compilers of healthcare publications, for example, legal tabulations, 

and a host of other worthy databases have to update consumers 

and businesses with the most accurate information available? What 

64

will happen to those consumers and businesses who unwittingly 

rely upon outdated information when making health, legal, or purchasing decisions? I just believe that the public at large would be 

better served to include databases that are aligned and well now 

rather than exclude them if this amendment were to pass. And I 

yield back. 

Mr. GOODLATTE. Would the gentleman yield? 

Chairman SENSENBRENNER. Time belongs to the gentleman from 

North Carolina. 

Mr. COBLE. I yield to the gentleman from Virginia. 

Mr. GOODLATTE. I thank the gentleman for yielding. And I agree 

with him, that there are major databases into which a great deal 

of investment has been made. And the problem that we confront 

in the digital age is the ease with which they could be duplicated. 

So somebody could take all of the previously un-updated material 

and steal all of that, and then just worry about the small amount 

of updating that is done. That would be I think an inappropriate 

result. 

So I agree with the gentleman from North Carolina and reluctantly oppose the amendment offered by the gentleman from Virginia. 

Chairman SENSENBRENNER. Would the gentleman yield to me? 

Mr. COBLE. I yield to Mr. Chairman. 

Chairman SENSENBRENNER. I agree with the arguments made 

both by the gentleman from North Carolina and the gentleman 

from Virginia. What I would say is that if this amendment is 

adopted, it effectively puts every publicly available database into 

the public domain. And in many cases, a lot of money and time and 

effort has been spent in assembling these databases. And to say 

that if there is no protection as a result of the enactment of this 

bill, I think that that would be patently unfair. And we would effectively, by an act of Congress, either be taking away the value 

or diminishing the value of the people’s property. 

And I yield back to the gentleman from North Carolina. 

Mr. COBLE. And I yield back the balance of my time, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I again take the floor 

to raise another North-South dialogue. This time, though, it is between my dear friend from Virginia on our side of the aisle, and 

I am going to add to my North Carolina friend my Virginia friend. 

So this is Virginia versus North Carolina and Virginia. Maybe you 

will do better this time, Mr. Coble. 

I am going to begin with the two gentlemen from the South on 

the Republican side. Could you explain to me, is there—normally 

being opposed to retroactivity and for being prospective is a good 

thing. And apparently that is not the case in this instance. Could 

you define for the Committee why that is the case? 

Mr. GOODLATTE. Would the gentleman yield? 

Mr. CONYERS. Of course. 

Mr. GOODLATTE. If you didn’t have a law that prohibited stealing 

or breaking into somebody’s home, it seems to me that if somebody 

had already stolen something it would make sense to allow the protection of things that they already own and not just things that—

65

well, let me put it differently. It would make sense to me to allow 

the protection of things that you owned already and not things that 

you acquired in the future. 

That is what we are talking about here. The database already exists; but if it is enhanced by additional updated information, it 

seems to me the entire database should be protected and not just 

the updated material. 

Mr. CONYERS. Mr. Coble. 

Mr. COBLE. Thank you, Mr. Conyers. Thank you, Mr. Goodlatte. 

Mr. Conyers, I think you are correct when you say generally I 

think most of us probably would oppose retroactivity. But as my 

friend from the valley in Virginia, Mr. Goodlatte, pointed out, I 

think this would be one of those exceptions. And I think in this 

case retroactivity would be indeed damaging and unfair. 

Ms. LOFGREN. Would the gentleman yield for an observation? 

Mr. COBLE. I would indeed. 

Mr. CONYERS. Yes, I would. 

Ms. LOFGREN. The problem here—and I was going to move to 

strike the last word, and if I run out of time I still will. We are 

having a discussion about what we like and right and wrong and 

economics, all of which is interesting and useful. But the problem 

is that we have not yet had the constitutional law discussion that 

really is at the base of this problem. 

In 1991 the Supreme Court threw out the sweat-of-the-brow doctrine and said that you could not copyright facts. You can’t have 

a theft unless you have property. And what the Court has said is 

you can’t have property with the database because there is no creativity that meets the standards of the copyright clause. And this 

bill does not solve that problem. 

That is why the retroactivity issue, and why I don’t have an 

amendment for the hot news exception, because there are so many 

other problems with the bill that ultimately even if we pass this 

bill, the Court is going to strike it down, it is not going to be found 

constitutional, and we will not have solved the problem for people 

who actually—I, like people and companies on both sides of the disagreement here, I actually sort of like the sweat-of-the-brow doctrine. I thought it served us quite well for a long time, but the 

Court has thrown that doctrine out. It is not constitutional. 

And if you take a look at the standards in this bill, the first, the 

four-prong standard, the database was generated through a substantial expenditure of financial resources of time. That is the 

sweat-of-the-brow doctrine that the Court specifically overturned in 

the Feist case, and that is why just fixing the hot news exception 

will not fix this bill and why, even though I support the amendment about retroactivity, it still doesn’t fix the bill, because there 

is nothing that rises to the level of what the report said is necessary for protection of those——

Mr. CONYERS. A very good point; you support the Democratic 

south. 

I recognize Mr. Boucher at this point. 

Mr. BOUCHER. Well, thank you very much, Mr. Conyers. Let me 

just respond to several points. Several of the individuals who have 

spoken in opposition to this amendment have said that if the 

amendment passes, there would be no financial incentive to update 

and modernize and continue to provide new information for existVerDate jul 14 2003 04:52 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00065 Fmt 6659 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1
66

ing databases. And I take issue with that assertion. The creators 

of databases today are spending billions of dollars every year in 

order to update their databases. They are receiving tremendous 

revenues from subscription services and other sales of those databases, of the information therein contained, and they don’t have 

the protection of this bill at the present time. And so if my amendment is adopted and the bill is made prospective only, nothing 

changes; the legal environment remains exactly the same and the 

incentive would be no less. 

Chairman SENSENBRENNER. The gentleman’s time has expired, 

and, without objection, will be given an additional minute. 

Mr. BOUCHER. Yes. Mr. Chairman, I ask for 1 additional minute 

for the gentleman from Michigan, please. And I trust the gentleman continues to yield. 

Mr. CONYERS. Yes, of course. 

Mr. BOUCHER. And so the incentive would remain exactly the 

same as it is today, and we would continue to see billions of dollars 

invested by database creators in updating and modernizing the information in their databases. 

The other point I would simply underscore is that we render absolutely meaningless the time sensitivity requirement in the bill if 

we do not adopt this amendment, because we would be saying that 

databases that are already in existence as of the date of the effectiveness of the law would be subject to protection. They can’t possibly be time sensitive. And so I think we render the text of the 

measure itself open to question; I think we render almost a nonentity that provision that requires time sensitivity. And surely that 

would not be the intent of the authors of the bill. 

So it seems to me, Mr. Chairman, that the measure should be 

made prospective. That is what the amendment does. I hope it 

would be adopted. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The question is on agreeing to the Boucher amendment to the 

amendment in the nature of a substitute. 

Those in favor will say aye. 

Opposed, no. 

The noes appear to have it. A recorded vote is requested. 

Those in favor of the Boucher amendment to the amendment in 

the nature of a substitute will, as your names are called, answer 

aye. 

Those opposed, no. 

And the clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. Coble. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

67

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon. 

[No response.] 

The CLERK. Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller no. 

Ms. Hart. 

[No response.] 

The CLERK. Mr. Flake. 

[No response.] 

The CLERK. Mr. Pence. 

[No response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Carter. 

Mr. CARTER. No. 

The CLERK. Mr. Carter, no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mrs. Blackburn. 

Mrs. BLACKBURN. No. 

The CLERK. Mrs. Blackburn, no. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. 

Mr. Nadler. 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

68

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye.

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. Aye. 

The CLERK. Ms. Baldwin, aye. 

Mr. Weiner. 

[No response.] 

The CLERK. Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Are there Members in the chamber 

who wish to cast or change their vote? The gentleman from Utah, 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. Are there further Members in the 

chamber who wish to cast or change their vote? If not, the clerk 

will report. 

The CLERK. Mr. Chairman, there are 8 ayes and 18 nos. 

Chairman SENSENBRENNER. And the amendment to the amendment in the nature of a substitute is not agreed to. Are there further amendments? 

Mr. BOUCHER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Virginia. 

Mr. BOUCHER. Mr. Chairman, I have one additional amendment. 

It is Boucher 025. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute.

69

Mr. BOUCHER. And I ask unanimous consent, Mr. Chairman, that 

the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The amendment to the amendment in the nature of a substitute 

follows:]

70 H.L.C.

AMENDMENT TO THE AMENDMENT IN THE

NATURE OF A SUBSTITUTE TO H.R. 3261

OFFERED BY MR. BOUCHER

Page 4, insert the following after line 13:

1 (v) Any legal materials produced by a

2 Federal court, including opinions, judg3 ments, and rules of practice, and any legis4 lative materials produced by the Congress,

5 including bills and resolutions, committee

6 reports, and floor statements.


A3261C.AAB
71

Chairman SENSENBRENNER. And the gentleman is recognized for 

5 minutes. 

Mr. BOUCHER. Thank you very much, Mr. Chairman. 

This amendment simply exempts any legal materials produced 

by a Federal court, including opinions, judgments, and rules of 

practice, and any legislative materials produced by the Congress, 

including bills and resolutions, Committee reports, and floor statements from the operation of the bill. 

It seems to me that we should not risk through the enactment 

of this measure these particular documents, of tremendous interest 

to the public, being locked away from public access, and this 

amendment would provide that assurance. I hope it will be the 

Committee’s pleasure to adopt it, and I yield back. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. I thank the Chairman. And Mr. Boucher’s amendment excludes legal materials produced by Federal court, that is, 

opinions, rules, judgments, et cetera, and any legislative material 

produced by the Congress, bills, Committee reports, floor statements, from the definition of the database. There is a general exclusion for governmental information in the bill that would exempt 

the use of databases compiled by Federal, State, or local governments or by an entity carrying out work in response to a Government mandate. 

The Boucher amendment goes further, and would work contrary 

to the basic prohibition in the bill. The amendment would deny 

protection, it seems to me, to persons who invest time, money, and 

other resources in developing a Government documents database. 

I believe we should afford protection under the bill to anyone who 

winnows through a mountain of paper and concisely reduces it to 

a condensed version that provides necessary information in a consumer-friendly manner to interested persons, businesses, and consumers generally. It should not matter, it seems to me, that the 

subject matter relates to Government or legal issues as opposed to 

health care or sports matters or legalistic matters, et cetera. 

So with that in mind, Mr. Chairman, I would oppose the Boucher 

amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. COBLE. I yield back. 

Chairman SENSENBRENNER. The question is on Boucher amendment number 025 to the amendment in the nature of a substitute. 

Those in favor will say aye. 

Those opposed, no. 

The noes appear to have it. The noes have it the amendment is 

not agreed to. 

Are there further amendments? If not, a reporting quorum——

Mr. WATT. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from North Carolina. 

Mr. WATT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. I hope it doesn’t take 5 minutes. But I have learned, 

serving on this Committee with Ms. Lofgren, that when she or Mr. 

Boucher or Mr. Goodlatte say something about technology, they 

generally have a knowledge base that far exceeds mine, and—but 

72

I always pay attention. And nobody has yet responded to Ms. 

Lofgren’s concern about the constitutional issue, which kind of goes 

to the heart of this bill and on which I guess I am a little concerned 

as we proceed to a final vote up or down on the bill. 

Could I ask Mr. Boucher and Mr. Coble their views—and Mr. 

Goodlatte, if he is still over there—their views on that? 

Mr. BOUCHER. Would the gentleman yield? 

Mr. WATT. I will yield to Mr. Boucher first. 

Mr. BOUCHER. Well, I thank the gentleman from North Carolina 

for posing the question. And as the gentlewoman from California 

mentioned earlier, there are severe constitutional questions that 

surround this entire subject. A point comes when first amendment 

rights begin to be invaded if facts are locked away in a manner 

that prohibits people from engaging in free and open speech. And 

to the extent that pure facts are locked away from public access, 

as this bill potentially could do, I think there are very serious first 

amendment questions that could be raised. 

Another major problem that I see, which also has constitutional 

dimension, is that the duration of protection under this bill potentially could exceed the protection that is accorded under the copyright statutes. The Supreme Court had a case in its last term in 

which it found that the copyright term extension that Congress had 

approved was constitutional. But in doing so, it made a number of 

statements about the value of fair use, for example, and the ability 

of people to use copyrighted material in everyday conversation, and 

to have access to it in a wide array of other context, for reports, 

documents, et cetera. 

I look at that language and I wonder how the Supreme Court 

could look at this law, assuming that it becomes law, and decide 

that locking away the very facts that underlie the free exercise of 

fair-use rights could be constitutional. And I suspect that on both 

of the counts that I have just mentioned, the Supreme Court would 

give serious consideration to whether or not this measure is constitutional. My bet would be that it would be declared unconstitutional, just as the gentlewoman from California said. 

And I thank the gentleman for yielding. 

Mr. WATT. Reclaiming my time. I yield to Mr. Coble for his response. 

Mr. COBLE. I first of all want to associate with my friend from 

North Carolina’s remarks in that I also take a back seat to Mr. 

Goodlatte, Mr. Boucher, and Ms. Lofgren when it comes to the complex technicalities of this issue. But I don’t believe this diminishes 

free speech in any way. I think the law of false advertising, copyright, trademark, unfair competition, they regulate information or 

speech to a certain extent, Mr. Watt, in a commercial context without running afoul of the first amendment. And I just don’t see the 

problem there. Again, I say this may be subject to interpretation, 

but Mr. Boucher and I can agree to disagree agreeably. 

Mr. WATT. Reclaiming my time, might I also yield to Chairman 

of the full Committee to get his view on this issue? 

Chairman SENSENBRENNER. Well, my preparatory job was being 

the Chairman of the Science Committee. So while I don’t know as 

much about technology as Ms. Lofgren, I know a little bit about it 

and how to encourage it. 

73

Let me say I am not concerned about the first amendment constitutional aspects of this. I think that the gentleman from Virginia 

may have a point on whether or not this falls within the copyright 

clause of the Constitution, in that copyrights are designed to protect original inventions. But practically every database requires 

some type of assembly to get all of the data into one convenient 

area, and I think that that is copyrightable, and I think that the 

courts have been friendly toward recognizing that this was a legal 

copyright. 

So you know, while none of us here are judges, I think that the 

presumption has got to be that this legislation is constitutional 

under both first amendment and copyright clause grounds. 

Mr. WATT. Mr. Chairman, could I ask for 30 additional seconds? 

Chairman SENSENBRENNER. Without objection. 

Mr. WATT. And yield to Mr. Boucher for an additional response 

that he has. 

Mr. BOUCHER. I thank the gentleman for yielding. 

Let me simply clarify that I think the relevance of the discussion 

about the duration of copyright term as applied to this bill is that 

the material that would be protected under this bill could potentially be protected in perpetuity. There is one provision in the bill 

that says that if you are simply maintaining a database, that act 

alone would entitle you to protect. So there would appear to be no 

limit whatever. 

The Supreme Court came to a struggling conclusion with regard 

to whether or not the copyright term extension was constitutional. 

I daresay if the Court looks at one of these provisions that would 

extend protection for a longer time than is permitted under the 

copyright law, that the Court inevitably would find that that violates the right of people to have access to information under the 

first amendment and potentially other provisions of the Constitution, and would say that at the outer limit, protection could only 

be provided within the ambit of the time that the copyright law 

itself would accord. 

I thank the gentleman for yielding. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Are there further amendments? 

If not, the question is on adoption of the amendment in the nature of a substitute which was laid down as the base text as 

amended. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the amendment in the nature of a substitute is adopted. 

A reporting quorum is present. The question occurs on the motion to report the bill H.R. 3261, as amended. 

All those in favor say aye. 

Opposed, no. 

The ayes appear to have it. 

Mr. BOUCHER. Mr. Chairman, a recorded vote, please. 

Chairman SENSENBRENNER. A recorded vote is ordered. 

Those in favor of the motion to report the bill H.R. 3261, as 

amended, will, as your names are called, answer aye. 

Those opposed, no. 

And the clerk will call the roll. 

74

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

[No response.] 

The CLERK. Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. 

Ms. Hart. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. Pence. 

[No response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Carter. 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter, aye. 

Mr. Feeney. 

[No response.] 

The CLERK. Mrs. Blackburn. 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn, aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. 

75

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

Mr. BOUCHER. No. 

The CLERK. Mr. Boucher, no. 

Mr. Nadler. 

[No response.] 

The CLERK. Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. 

Ms. Lofgren. 

[No response.] 

The CLERK. Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. 

Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. 

Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. No. 

The CLERK. Ms. Baldwin, no. 

Mr. Weiner. 

[No response.] 

The CLERK. Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Are there Members in the chamber 

who wish to cast or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 16 ayes and 7 noes. 

Chairman SENSENBRENNER. And the motion to report is agreed 

to. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute, incorporating the amendments adopted here today. 

Without objection, the Chairman is authorized to move to go to 

conference, pursuant to House rules.

76

Without objection, the staff is directed to make any technical and 

conforming changes, and all Members will be given 2 days, as provided by House rules, in which to submit additional dissenting supplemental or minority views. 

I would ask the indulgence of the Members of the Committee to 

sit through the reporting of one more bill which I anticipate to be 

noncontroversial. 

(77)

DISSENTING VIEWS

Under the U.S. Constitution, facts distributed to the public are 

deemed to have entered the public domain. Consumers, businesses, 

and others are free to use those facts and republish them. H.R. 

3261, however, would essentially allow database producers to lock 

up facts, making them available to the American public only for a 

fee or not at all if such restrictions would give the database owners 

a competitive advantage. Competition in the information market 

would be restricted, leading to higher prices and less innovation. 

Moreover, enactment of the legislation could undermine the ability 

of American citizens to express their First Amendment and other 

constitutionally based rights. 

We believe the bill suffers from fundamental legal defects, which 

under the Supreme Court’s opinion in the Feist case rise to Constitutional dimension. Notwithstanding the Court’s clear rejection 

of the ‘‘sweat of the brow’’ doctrine in Feist over a decade ago, the 

bill seeks to codify the doctrine. It relies on the Commerce Clause 

to achieve precisely what the Supreme Court found the Intellectual 

Property Clause prohibited: a copyright in facts. Moreover, notwithstanding the Second Circuit’s articulation of a clear standard for 

the ‘‘hot news’’ doctrine in the NBA v. Motorola case, H.R. 3261 

adopts a lesser standard as a basis for liability. Finally, notwithstanding the Supreme Court’s recent articulation of concerns about 

perpetual copyright protection and the creation of ‘‘a species of mutant copyright law,’’ this bill essentially gives database owners the 

ability to lock up facts forever. 

Beyond these legal infirmities, the bill suffers from a weak economic rationale as well. The stated intent of H.R. 3261 is to provide database publishers with the incentive to invest in the collection of information. But the proponents of H.R. 3261 have failed to 

demonstrate that publishers need any additional incentive; the 

database industry in the United States is thriving, with publishers 

investing billions of dollars each year in the creation of new databases. Profit margins in the industry are higher than in most other 

industries, and the existing database companies continue to purchase other database companies, reflecting their confidence in the 

future of their industry. 

Additionally, proponents of H.R. 3261 have failed to show a gap 

in the legal protection of databases that needs to be filled. While 

published facts enter the public domain, database publishers have 

a wide variety of legal mechanisms that protect a range of business 

models:

• The publisher can employ copyright law to protect the selection and arrangement of facts in a database. If a person copies most of a database, he probably has infringed the copyright in the database because he has copied the selection and 

arrangement of the facts.

78

• The publisher can distribute the database under a license 

that prohibits the copying and redistribution of information.

• The publisher can make the database available only on-line, 

where it can receive protection under the Federal Computer 

Fraud and Abuse Act or state trespass to chattels, which 

have been successfully employed to protect databases.

• The publisher can use a technological protection measure to 

secure the database, and a person who circumvents the protection violates the Digital Millennium Copyright Act.

• The publisher of ‘‘hot news’’ can rely on state common law 

misappropriation.

Stripped to its essence, H.R. 3261 is not about preventing ‘‘piracy.’’ It is about increasing publishers’ revenue streams by allowing them to control information in an unprecedented way. 

H.R. 3261 contains provisions that appear at first blush to mitigate its harm, but their benefits disappear on closer examination. 

The bill applies only to information that is redistributed in ‘‘a time 

sensitive manner,’’ but this phrase is defined so indefinitely that it 

could include all information that has any commercial value. Reinforcing the breadth of the bill’s scope is that it would apply to databases already in existence, including specifically encyclopedias and 

journal issues. 

H.R. 3261 contains many uncertain terms that will lead to litigation. Unfortunately, the potential to receive treble damages will 

provide publishers with an economic incentive to adopt aggressive 

interpretations of the bill’s ambiguities. For example, liability is 

triggered when a person redistributes a ‘‘quantitatively substantial 

part of a database.’’ With the possibility of recovering treble damages, publishers will argue that as little as 5% of a database is a 

‘‘quantitatively substantial part.’’ The 1996 EU Database Directive, 

which inspired the proponents to seek database legislation in the 

U.S., has led to ruinous litigation across Europe, particularly with 

respect to specialized Internet search engines that provide consumers with access to news and product information. The litigation 

has centered on the Directive’s ambiguous terms, some of which appear in H.R. 3261. 

Examples of the bill’s potential harm can be given from every 

sector of the economy. An Internet company might want to provide 

consumers with the ability to compare prices at different websites. 

A biochemist might want to publish a comparison of his results 

with that of a scientist at another biotech firm. A market analyst 

might want to publish a report listing the performance of a wide 

variety of financial instruments. All of these activities could be unlawful under H.R. 3261.

79

Information is the lifeblood of the Information Economy. Congress should not create a new regime that restricts access to information in the absence of any demonstrated market failure requiring Government regulation. Moreover, of any Committee in the 

House, this is the last Committee that should be favorably reporting legislation with such potentially fatal constitutional flaws. We 

trust the bill will not ultimately become law and give monopolists 

the ability to lock up facts to the detriment of the American public.

RICK BOUCHER. 

ROBERT C. SCOTT. 

MELVIN L. WATT. 

MARTIN T. MEEHAN. 

(81)

DISSENTING VIEWS

The stated goal of this legislation—to protect database owners 

from misappropriation of their work product—is appealing. The old 

‘‘sweat of the brow’’ standard in existence before Feist Publication

v. Rural Telephone Services Company, 499 U.S. 340 (1991), seemed 

to serve society reasonably well by providing incentives for the creation of databases. But the Feist case was clear and decisive, and 

the legislation before us does not avoid the Constitutional defects 

outlined in that case. 

We do not believe that Congress should try to provide database 

owners with protection that is not within our power to grant. More 

precisely, we are convinced that the Intellectual Property Clause 

(article I, section 8, clause 8) of the U.S. Constitution does not 

countenance the type of protection granted by this bill. 

In Feist, the Supreme Court unanimously held that the Intellectual Property Clause protects only expressive elements in compilations and that effort without creativity could not convert facts into 

protected expressions. The Court thus expressly rejected the ‘‘sweat 

of the brow’’ theory, ruling that a compilation could only be copyrighted if the facts are selected, coordinated or arranged in such a 

way as to render the work an original work of authorship. Even 

then, the protection only applies to the author’s original contributions and not the facts or information conveyed. 

This legislation is intended to resurrect the ‘‘sweat of the brow’’

theory rejected by the Supreme Court in Feist. In an attempt to 

conceal its true intent, the drafters have styled the bill as a Federal ‘‘misappropriation’’ statute, as though we were not creating a 

new property right, but establishing a new tort. However, the bill 

seeks to establish a new property right for databases, complete 

with civil remedies for unauthorized uses and exceptions for nonprofit scientific research and news reporting. Such characteristics 

belie the ‘‘misappropriation’’ label, and look suspiciously analogous 

to those of copyright (infringement, fair use, etc.). 

Proponents argue that even if this proposal runs afoul of the Intellectual Property Clause, it is still constitutional because it is 

within Congress’ power under the Commerce Clause (article I, section 8, clause 3). However, the Supreme Court’s interpretation of 

the relationship between the Commerce Clause and another enumerated power (the Bankruptcy Clause) in Railway Labor Executives’ Association v. Gibbons, 455 U.S. 457 (1982), seems to rule out 

this argument. 

In Railway Labor, the Court struck down a statute providing 

protection to the employees of a railroad in bankruptcy. The Court 

found that the proposed statute violated the ‘‘uniformity’’ requirement of the Bankruptcy Clause, which Congress could not circumvent by purporting to legislate under the Commerce Clause. 

Railway Labor, 455 U.S. at 469. The Railway Labor opinion makes 

82

clear that Congress cannot avoid the particular requirements of 

one enumerated power by relying on the generality of the Commerce Clause. Likewise, H.R. 3261 cannot avoid the originality requirement of the Intellectual Property Clause by relying on the 

general powers of the Commerce Clause. 

The United States Justice Department came to the same conclusion after analyzing an earlier database bill in 1998:

If the Intellectual Property Clause precluded Congress from 

providing protection against the copying of non-original portions of factual compilations, even pursuant to a power other 

than conferred by that Clause, then Congress would not be 

able to use the Commerce Clause to avoid the implicit strictures of the Intellectual Property Clause that the Court in 

Feist could be said to have recognized, just as Congress may 

not use the Commerce Clause to avoid the Bankruptcy Clause’s 

express requirement that bankruptcy laws be uniform....

Memorandum from William Michael Treanor, Deputy Assistant Attorney General, United States Department of Justice, to William P. 

Marshall, Associate White House Counsel (July 28, 1998). 

The fact that Congress regulates trademarks under the Commerce Clause does not save H.R. 3261. Over 120 years ago, the Supreme Court ruled that the Intellectual Property Clause did not 

apply to trademarks because they were neither writings nor discoveries. Trade-Mark Cases, 100 U.S. 82 (1879). In contrast, databases 

are writings that clearly fall within the scope of the Intellectual 

Property Clause. Indeed, copyright law already extends to compilations. See, e.g., 17 U.S.C. § 103. Thus, unlike trademarks, database 

legislation is subject to the limitations of the Intellectual Property 

Clause. See Bonito Boats v. Thundercraft Boats, 489 U.S. 141, 146 

(1989) (‘‘[a]s we have noted in the past, the [Intellectual Property] 

Clause contains both a grant of power and certain limitations upon 

the exercise of that power’’). 

We are also concerned that this legislation may run afoul of the 

First Amendment. Factual information and ideas are the building 

blocks of all forms of expression, and the Supreme Court has recognized that the First Amendment leaves little room for restrictions 

on the dissemination of ideas and factual information. In fact, the 

Court’s ruling in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), seems to indicate that our rights of expression under the First Amendment preclude Congress from limiting access to information in the manner contemplated by this legislation:

Our ‘‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen,’’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 

(1964), leaves no room for a statutory monopoly over information and ideas. ‘‘The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher his treatises and thus obtain a monopoly on the ideas 

they contained.’’ Lee v. Runge, 404 U.S. 887, 893 (1971) (Douglas, J., dissenting). A broad dissemination of principles, ideas, 

and factual information is crucial to the robust public debate 

and informed citizenry that are ‘‘the essence of self-governVerDate jul 14 2003 04:52 Feb 13, 2004 Jkt 029010 PO 00000 Frm 00082 Fmt 6601 Sfmt 6601 E:\HR\OC\HR421P1.XXX HR421P1
83

ment.’’ Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). And 

every citizen must be permitted freely to marshal ideas and 

facts in the advocacy of particular political choices.

Harper & Row, 471 U.S. at 582 (emphasis added). 

The Court distinguished copyright protection from the rights protected by the First Amendment by making clear that copyright protection is limited to the author’s expression of facts or ideas, not 

the facts or ideas themselves. In Harper & Row, the Court recited 

with approval the Second Circuit’s explanation that copyright’s 

‘‘idea-expression’’ dichotomy ‘‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting 

free communication of facts while still protecting an author’s expression.’’ Harper & Row, 471 U.S. at 556 (quoting 723 F.2d 195, 

203 (2d Cir. 1983)). Because of this distinction, ‘‘every . . . fact in 

a copyrighted work becomes instantly available for public exploitation at the moment of publication.’’ Eldred v. Ashcroft, 537 U.S. 

186, 219 (2003). 

As we stated initially, we are extremely sympathetic to the efforts of our Colleagues to protect the misappropriation of the work 

and efforts of database publishers. We should be concerned about 

the need to provide incentives to produce and maintain valuable 

collections of information. However, our efforts are worthless if we 

do not enact legislation that comports with the Constitution. We 

are convinced that the current bill will not meet the Constitutional 

questions raised by the courts that stimulated this legislation. In 

the end, enacting still another unconstitutional law serves no one’s 

interests. Those who rely on the law will do so to their detriment. 

Efforts to find measures that might meet Constitutional muster 

will linger or wither. Business decisions may be made based on unsound law. We would also point out that database publishers already have a wide variety of legal theories available to protect 

their business models, as pointed out in the views submitted by our 

colleague Rep. Rick Boucher. 

While proponents of this bill have only the best intentions, the 

bill will only create additional market uncertainty, is unconstitutional and should be rejected.

MELVIN L. WATT. 

ZOE LOFGREN. 

MARTIN T. MEEHAN.

Æ