I 
108TH CONGRESS 
1ST SESSION H. R. 3261
To prohibit the misappropriation of certain databases. 
IN THE HOUSE OF REPRESENTATIVES 
OCTOBER 8, 2003
Mr. COBLE (for himself, Mr. SMITH of Texas, Mr. HOBSON, Mr. GREENWOOD, 
Mr. TAUZIN, and Mr. SENSENBRENNER) introduced the following bill; 
which was referred to the Committee on the Judiciary 
A BILL 
To prohibit the misappropriation of certain databases.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Database and Collec-
tions 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, an-
thology, or encyclopedia, in which a number of con-
tributions, 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 assem-
bling of preexisting materials or of data that are se-
lected, coordinated, or arranged in such a way that 
the resulting work as a whole constitutes an original 
work of authorship. The term ‘‘compilation’’ includes 
collective works. 
(4) COVERED ENTITY.—The term ‘‘covered en-
tity’’ means a legal entity that is—
(A) a telecommunications carrier engaged 
in the provision of a telecommunications serv-
ice; 
(B) a person engaged in the business of 
providing an Internet access service; 
(C) a person engaged in the business of 
providing an Internet information location tool; 
and 
(D) a person similarly engaged in the 
transmission, storage, retrieval, hosting, for-
matting, or translation (or any combination
thereof) of a communication made by another 
person, without selection or alteration of the 
content of the communication, except that such 
person’s deletion of a particular communication 
or material made available in commerce by an-
other person in violation of section 3 shall not 
constitute such selection or alteration of the 
content of the communication. 
(5) DATABASE.—
(A) IN
GENERAL.—Subject to subpara-
graph (B), the term ‘‘database’’ means a collec-
tion of a large number of discrete items of in-
formation 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 ad-
dressing, routing, forwarding, transmit-
ting, or storing digital online communica-
tions or receiving access to connections for
digital communications, except that the 
fact that a collection of information in-
cludes or consists of online location des-
ignations shall not by itself be the basis for 
applying this clause. 
(iii) A collection of information gath-
ered, organized, or maintained to perform 
the function of providing multichannel 
audio or video programming. 
(iv) A collection of information gath-
ered, organized, or maintained to register 
domain name registrant contact data 
maintained by a domain name registration 
authority, unless such registration author-
ity takes appropriate steps to ensure the 
integrity and accuracy of such information 
and provides real-time, unrestricted, and 
fully searchable public access to the infor-
mation contained in such collection of in-
formation. 
(C) DISCRETE SECTIONS.—The fact that a 
database is a subset of a database shall not pre-
clude such subset from treatment as a database 
under this Act.
(6) DOMAIN NAME.—The term ‘‘domain name’’ 
means any alphanumeric designation which is reg-
istered with or assigned by any domain name reg-
istrar, domain name registry, or other domain name 
registration authority as part of an electronic ad-
dress on the Internet. 
(7) IN CONCERT.—A person acts ‘‘in concert’’ 
with another person who makes a database available 
in commerce if the act of making available in com-
merce is planned, arranged, coordinated, adjusted, 
agreed upon, or settled between the two persons act-
ing together, in pursuance of some design or in ac-
cordance with some scheme. 
(8) INFORMATION.—The term ‘‘information’’ 
means facts, data, works of authorship, or any other 
intangible material capable of being generated or 
gathered. 
(9) INTERNET.—The term ‘‘Internet’’ means 
the combination of computer facilities and electro-
magnetic transmission media, and related equipment 
and software, comprising the interconnected world-
wide network of computer networks that employ the 
Transmission Control Protocol/Internet Protocol or 
any successor protocol to transmit information.
(10) INTERNET
ACCESS
SERVICE.—The term 
‘‘Internet access service’’ means a service that en-
ables users to access content, information, electronic 
mail, or other services offered over the Internet, and 
may also include access to proprietary content, infor-
mation, and other services as part of a package of 
services offered to consumers. Such term does not 
include telecommunications services. 
(11) 
INTERNET
INFORMATION
LOCATION 
TOOL.—The term ‘‘Internet information location 
tool’’ means a service that refers or links users to 
an online location on the World Wide Web. Such 
term includes directories, indices, references, point-
ers, and hypertext links. 
(12) LEGAL ENTITY.—The term ‘‘legal entity’’ 
means a person, other than an individual, including 
a firm, corporation, union, or other organization, 
which is organized under the laws of the United 
States, a State, the District of Columbia, or any
commonwealth, territory, or possession of the United 
States, or the laws of a foreign country. 
(13) MAINTAIN.—To ‘‘maintain’’ a database 
means to update, validate, or supplement the infor-
mation contained in the database.
(14) MAKING
AVAILABLE
IN
COMMERCE
TO 
OTHERS.—The term ‘‘making available in commerce 
to others’’ means making available in commerce to—
(A) a substantial number of members of 
the public; or 
(B) a number of persons that extends be-
yond—
(i) a family and its social acquaint-
ances; or 
(ii) those who could reasonably antici-
pate to have a database made available in 
commerce to them without a customary 
commercial relationship. 
A court may take into account repeated acts di-
rected to different persons by the same or con-
certed parties in determining the limits imposed 
by subparagraph (B)(ii) have been exceeded. 
(15) TELECOMMUNICATIONS.—The term ‘‘tele-
communications’’ means the transmission, between 
or among points specified by the user, of informa-
tion of the user’s choosing, without change in the 
form or content of the information as sent and re-
ceived. 
(16) 
TELECOMMUNICATIONS
CARRIER.—The 
term ‘‘telecommunications carrier’’ means any pro-
vider of telecommunications services, except that 
such term does not include any person that, in the 
ordinary course of its operations, makes telephones 
available to the public or to transient users of its 
premises, for interstate telephone calls using a pro-
vider of operator services. 
(17) 
TELECOMMUNICATIONS
SERVICE.—The 
term ‘‘telecommunications service’’ means the offer-
ing of telecommunications for a fee directly to the 
public, or to such classes of users as to be effectively 
available directly to the public, regardless of the fa-
cilities used.
SEC. 3. PROHIBITION AGAINST MISAPPROPRIATION OF 
DATABASES. 
(a) LIABILITY.—Any person who makes available in 
commerce to others a quantitatively substantial part of the 
information in a database generated, gathered, or main-
tained by another person, knowing that such making avail-
able in commerce is without the authorization of that per-
son (including a successor in interest) or that person’s li-
censee, 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 fi-
nancial resources or time;
(2) the unauthorized making available in com-
merce occurs in a time sensitive manner and inflicts 
injury on the database or a product or service offer-
ing access to multiple databases; and 
(3) the ability of other parties to free ride on 
the efforts of the plaintiff would so reduce the incen-
tive to produce the product or service that its exist-
ence 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 man-
ner that causes the displacement, or the disruption of the 
sources, of sales, licenses, advertising, or other revenue. 
(c) TIME SENSITIVE.—In determining whether an un-
authorized 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 con-
text of the industry sector involved. 
SEC. 4. PERMITTED ACTS. 
(a) INDEPENDENTLY GENERATED OR GATHERED IN-
FORMATION.—This Act shall not restrict any person from 
independently generating or gathering information ob-
tained by means other than extracting it from a database 
generated, gathered, or maintained by another person and 
making that information available in commerce.
(b) ACTS OF MAKING AVAILABLE IN COMMERCE BY 
NONPROFIT EDUCATIONAL, SCIENTIFIC, OR RESEARCH 
INSTITUTIONS.—The making available in commerce of a 
substantial part of a database by a nonprofit educational, 
scientific, and research institution, including an employee 
or agent of such institution acting within the scope of such 
employment or agency, for nonprofit educational, sci-
entific, and research purposes shall not be prohibited by 
section 3 if the court determines that the making available 
in commerce of the information in the database is reason-
able under the circumstances, taking into consideration 
the customary practices associated with such uses of such 
database by nonprofit educational, scientific, or research 
institutions and other factors that the court determines 
relevant. 
(c) HYPERLINKING.—Nothing in this Act shall re-
strict the act of hyperlinking of one online location to an-
other 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 re-
strict any person from making available in commerce in-
formation for the primary purpose of news reporting, in-
cluding 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 con-
sistent pattern engaged in for the purpose of direct com-
petition. 
SEC. 5. EXCLUSIONS. 
(a) GOVERNMENT INFORMATION.—
(1) IN GENERAL.—Except as provided in para-
graph (2), protection under this Act shall not extend 
to—
(A) a database generated, gathered, orga-
nized, 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 regula-
tion requiring such a database.
(2) EXCEPTION.—Nothing in this section shall 
preclude protection under this Act for a database 
gathered, organized, or maintained by an employee 
or agent of an entity described in paragraph (1) that 
is acting outside the scope of such employment or 
agency, or by a Federal, State, or local educational
institution, or its employees or agents, in the course 
of engaging in education, research, or scholarship. 
(b) COMPUTER PROGRAMS.—
(1) PROTECTION NOT EXTENDED.—Subject to 
paragraph (2), protection under section 3 shall not 
extend to computer programs, including any com-
puter program used in the manufacture, production, 
operation, or maintenance of a database, or to any 
element of a computer program necessary to its op-
eration. 
(2) INCORPORATED
DATABASES.—A database 
that is otherwise subject to protection under section 
3 is not disqualified from such protection solely be-
cause 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, ac-
cess to public documents, and misuse. 
(2) RIGHT
OF
CONTRACT.—Notwithstanding 
subsection (b), nothing in this Act shall affect
rights, limitations, or remedies concerning the com-
mon law right of contract. 
(b) PREEMPTION OF STATE LAW.—
(1) LAWS REGULATING CONDUCT THAT IS SUB-
JECT OF THE ACT.—On or after the effective date 
of this Act, no State statute, rule, regulation, or 
common law doctrine that prohibits or otherwise reg-
ulates conduct that is the subject of this Act shall 
be effective. 
(2) CLARIFICATION
OF
INAPPLICABILITY
TO 
CASES
NOT
INVOLVING
COMMERCIAL
COMPETI-
TION.—Paragraph (1) shall not apply to preempt ac-
tions under State law against a person for taking ac-
tions that—
(A)(i) disrupt the sources of data supply to 
a database; or 
(ii) substantially impair the perceived accu-
racy, 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 data-
base 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 mak-
ing available in commerce or extracting subscriber list in-
formation, as such term is defined in section 222(h)(3) 
of the Communications Act of 1934 (47 U.S.C. 
222(h)(3)). 
(d) SECURITIES.—Nothing in this title shall—
(1) affect the operation of the Securities Act of 
1933 (15 U.S.C. 78a et seq.), the Securities Ex-
change 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 reg-
ulations thereunder; 
(2) affect the authority of the Securities and 
Exchange Commission; or 
(3) apply to information with respect to 
quotations for, or indications, orders, or transactions 
in, securities. 
(e) MISUSE.—Judicial doctrines of misuse shall apply 
under this Act.
SEC. 7. CIVIL REMEDIES. 
(a) CIVIL ACTIONS.—
(1) COMMENCEMENT OF ACTIONS.—Any person 
who is injured by a violation of section 3 may bring 
a civil action for such a violation in an appropriate 
United States district court. Any action against a 
State governmental entity may be brought in any 
court that has jurisdiction over claims against such 
entity. 
(2) NOTICE OF COMMENCEMENT OF ACTIONS 
AND APPEALS.—Any person who brings an action 
for such a violation, or who files an appeal from any 
final decision on such an action, shall transmit no-
tice of such action or appeal with the Federal Trade 
Commission and the Patent and Trademark Office 
in accordance with subsection (j)(1). 
(b) TEMPORARY AND PERMANENT INJUNCTIONS.—
Any court having jurisdiction of a civil action under this 
section shall have the power to grant temporary and per-
manent 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 sec-
tion, the plaintiff shall be entitled to recover the ac-
tual 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 sus-
tained 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 ac-
tual 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 de-
fendant of the alleged violation and the defend-
ant continued to violate section 3.
(B) The willfulness of the defendant’s con-
duct. 
(C) Whether the defendant has a history of 
database misappropriation. 
(D) The defendant’s ability to pay. 
(E) Whether the alleged violation had a se-
rious 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 con-
tents of a database made available in commerce or at-
tempted 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 judg-
ment or decree finding a violation or attempted violation 
of section 3, order the remedial modification or destruc-
tion of all copies of contents of a database made available 
in commerce or attempted to be made available in com-
merce 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 de-
fense was raised under this chapter in bad faith. 
(f) ACTIONS AGAINST UNITED STATES GOVERN-
MENT.—Subsections (b) and (d) shall not apply to any ac-
tion 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 ap-
plicable law. 
(h) LIMITATION ON LIABILITY OF CERTAIN ENTI-
TIES.—A covered entity shall not be liable for a violation 
under section 3 unless—
(1) the person who made the database available 
in commerce in violation of section 3 is an officer, 
employee, or agent of the covered entity acting with-
in the scope of the actor’s duties or agency; 
(2) an officer, employee, or agent of the covered 
entity, acting within the scope of the actor’s duties 
or agency, actively directs or induces the act of mak-
ing available in commerce in violation of section 3 by 
another person, or acts in concert with the person 
who made the database available in commerce in vio-
lation of section 3; or 
(3) the covered entity receives a financial gain 
or benefit that—
(A) is directly attributable to the making 
available in commerce of the database, or the 
content thereof, in violation of section 3; and 
(B) is in excess of the ordinary compensa-
tion for the rendering of the services described 
in subparagraph (A), (B), (C) or (D) of section 
2(2) that are provided by the covered entity. 
(i) OVERSIGHT OF CIVIL REMEDIES BY FTC AND 
PTO.—
(1) NOTICE.—The Federal Trade Commission 
and the Patent and Trademark Office shall, by regu-
lation, prescribe the form and procedures by which 
persons shall transmit the notices required by sub-
section (a)(2). 
(2) OVERSIGHT.—The Federal Trade Commis-
sion and the Patent and Trademark Office shall re-
view the actions conducted under this section for the 
purposes of identifying instances in which judicial 
interpretation of this Act adversely or otherwise ma-
terially affects the administration of laws and poli-
cies within their respective jurisdictions. 
(3) AMICUS
CUREA
BRIEFS.—The Federal 
Trade Commission, the Patent and Trademark Of-
fice, and the Register of Copyrights may, in appro-
priate instances, file briefs as friends of the court in 
appeals from final decisions of actions under this 
section. 
(4) REPORTS.—The Federal Trade Commission 
and the Patent and Trademark Office shall, within 
18 months after the date of enactment of this Act, 
each transmit a report to the Committee on the Ju-
diciary and the Committee on Energy and Com-
merce of the House of Representatives and the Com-
mittee on the Judiciary and Committee on Com-
merce, Science, and Transportation of the Senate on 
its operations under this subsection. Such reports 
shall include—
(A) a summary of any briefs filed; 
(B) an explanation of the impact, if any, of 
the judicial decisions reviewed on existing laws 
and policies within its jurisdiction; and 
(C) any recommendations for legislative or 
other changes that the agency considers appro-
priate.
SEC. 8. LIMITATION ON ACTIONS. 
No civil action shall be maintained under this Act un-
less it is commenced within 2 years after the cause of ac-
tion arises or claim accrues. 
SEC. 9. 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 
after the date of the enactment of this Act of a quan-
titatively substantial part of the information in a database 
in violation of that section, when the information was law-
fully extracted from the database before the date of the 
enactment of this Act, by that person or by that person’s 
predecessor in interest. 
SEC. 10. NONSEVERABILITY. 
(a) IN GENERAL.—If the Supreme Court of the 
United States holds that the provisions of section 3, relat-
ing to prohibition of misappropriation of databases, are 
invalid under Article I of, or the First Amendment to, the 
Constitution of the United States, then this Act is re-
pealed, effective as of the date of the Supreme Court deci-
sion.
(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.
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