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104TH CONGRESS
2D SESSION
H. R. 3531
To amend title 15, United States Code, to promote investment and prevent
intellectual property piracy with respect to databases.
IN THE HOUSE OF REPRESENTATIVES
MAY 23, 1996
Mr. MOORHEAD introduced the following bill; which was referred to the
Committee on the Judiciary
A BILL
To amend title 15, United States Code, to promote invest-
ment and prevent intellectual property piracy with re-
spect to 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 Investment
and Intellectual Property Antipiracy Act of 1996’’.
SEC. 2. DEFINITIONS.
‘‘Change of commercial significance’’ means a change
that a reasonable user of a database would regard as af-
fecting the quality, quantity or value of contents of that
database as a whole.
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‘‘Commerce’’ means all commerce that may lawfully
be regulated by Congress.
‘‘Database’’ means a collection, assembly or compila-
tion, in any form or medium now or later known or devel-
oped, of works, data or other materials, arranged in a sys-
tematic or methodical way.
‘‘Database maker’’ means the natural or juristic per-
son making a substantial investment, qualitatively or
quantitatively, in the collection, assembly, verification, or-
ganization and/or presentation of the contents of the
database. Unless provided otherwise by contract—
(1) where two or more persons qualify as the
makers of a database, they are jointly the database
maker;
(2) where a database is made by employees
within the scope of their employment, the employer
is the database maker; and
(3) where a database is made pursuant to spe-
cial order or commission, the person who ordered or
commissioned the database is the database maker.
‘‘Database management information’’ means the
name and other identifying information of the database
maker, the name and other identifying information of the
database owner, and terms and conditions for extraction
and use or reuse of the contents of the database.
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owner’s normal exploitation of the database or ad-
versely affects the actual or potential market for the
database; or
(3) procure, direct or commission any act pro-
hibited by subsections (i) or (ii).
(b) Acts that conflict with a normal exploitation of
the database or adversely affect the actual or potential
market for the database include but are not limited to the
extraction, use or reuse of all or a substantial part of the
contents of a database—
(1) in a product or service that directly or indi-
rectly competes in any market with the database
from which it was extracted; or
(2) in a product or service that directly or indi-
rectly competes in any market in which the database
owner has a demonstrable interest or expectation in
licensing or otherwise using or reusing the database;
or
(3) in a product or service for customers who
might otherwise reasonably be expected to be cus-
tomers for the database; or
(4) by or for multiple persons within an organi-
zation or entity in lieu of the authorized additional
use or reuse (by license, purchase or otherwise) of
copies of the database by or for such persons.
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SEC. 5. EXCEPTIONS TO PROHIBITED ACTS.
(a) Subject to section 4(a)(ii), a lawful user of a
database made available to the public or placed in com-
mercial use is not prohibited from extracting, using or
reusing insubstantial parts of its contents, qualitatively or
quantitatively, for any purposes whatsoever.
(b) Nothing in this Act shall in any way restrict any
person from independently collecting, assembling or com-
piling works, data or materials from sources other than
a database subject to this Act.
SEC. 6. DURATION OF PROHIBITIONS.
(a) A database becomes subject to this Act when the
necessary investment has been made to qualify its maker
as such under section 2. The database shall remain subject
to this Act for a period of twenty-five years from the first
of January following the date when it was first made avail-
able to the public or the date when it was first placed in
commercial use, whichever is earlier.
(b) Any change of commercial significance, quali-
tatively or quantitatively, to a database, including any
such change through the accumulation of successive addi-
tions, deletions, reverifications, alterations, modifications
in organization or presentation, or other modifications,
shall make the resulting database subject to this Act for
its own term, as calculated under subsection (a).
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SEC. 7. CIVIL REMEDIES FOR VIOLATION OF SECTION 4.
(a) CIVIL ACTIONS.—A database owner injured by a
violation of section 4 may bring a civil action for such a
violation in an appropriate United States district court
without regard to the amount in controversy: Provided
however, That any action against a State governmental en-
tity may be brought in any court that has jurisdiction over
claims against such entity.
(b) TEMPORARY AND PERMANENT INJUNCTIONS.—
Any court having jurisdiction of a civil action arising here-
under shall have the power to grant temporary and perma-
nent injunctions, according to the principles of equity and
upon such terms as the court may deem reasonable, to
prevent the violation of section 4. Any such injunction
granted upon hearing, after notice to the party sought to
be enjoined, by any district court of the United States,
may be served on the party against whom such injunction
is granted anywhere in the United States where such per-
son may be found, and shall be operative and may be en-
forced by proceedings in contempt or otherwise by any
United States district court having jurisdiction over such
party.
(c) IMPOUNDMENT.—At any time while an action
hereunder is pending, the court may order the impound-
ing, on such terms as it deems reasonable, of all copies
of contents of databases extracted and or used or reused
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in violation of section 4, 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 of section 4, order the
remedial modification or destruction of all copies of con-
tents of databases extracted, used or reused in violation
of section 4, and of all masters, tapes, disks, diskettes,
or other articles by means of which such copies may be
reproduced.
(d) MONETARY RELIEF.—When a violation of section
4 has been established in any civil action arising here-
under, the plaintiff shall be entitled, subject to principles
of equity, to recover (i) defendant’s profit, (ii) any dam-
ages sustained by the plaintiff, and (iii) the costs of the
action. The court shall assess such profits or damages or
cause the same to be assessed under its direction. In as-
sessing profits the plaintiff shall be required to prove de-
fendant’s sales only; defendant must prove all elements of
cost or deduction claimed. In assessing damages the court
may enter judgment, according to the circumstances of the
case, for any sum above the amount found as actual dam-
ages, not exceeding three times such amount. If the court
shall find that the amount of the recovery based on profits
is either inadequate or excessive, the court may in its dis-
cretion enter judgment for such sum as it finds just. The
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court in its discretion may award reasonable attorney fees
to the prevailing party.
(e) Subsections (b) and (c) shall not apply to any ac-
tion against the United States Government.
(f) The relief provided under this section shall be
available against a State governmental entity to the extent
allowed by applicable law.
SEC. 8. CRIMINAL OFFENSES AND PENALTIES FOR VIOLA-
TION OF SECTION 4.
(a) Any person who violates section 4 willfully, and—
(1) does so for direct or indirect commercial ad-
vantage or financial gain; or
(2) thereby causes loss or damage to a database
owner aggregating $10,000 or more in any one-year
calendar period, shall be punished as provided in
subsection (b).
(b) An offense under subsection (a) shall be punish-
able by a fine of not more than $250,000 or imprisonment
for not more than five years, or both. A second or subse-
quent offense under subsection (a) shall be punishable by
a fine of not more than $500,000, imprisonment for not
more than ten years, or both.
SEC. 9. RELATIONSHIP TO OTHER LAWS.
(a) The remedies against violations hereunder shall
be without prejudice to any remedies under any copyright
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that may subsist in the database, any contents of the
database, or the selection, coordination or arrangement of
such contents. Such remedies shall not limit, impair, or
otherwise affect the existence, scope or duration of protec-
tion under any such copyright.
(b) Nothing in this Act shall restrict the rights of
parties freely to enter into licenses or any other contracts
with respect to databases or their contents.
(c) Nothing in this Act shall prejudice provisions con-
cerning copyright, rights related to copyright or any other
rights or obligations in the database or its contents, in-
cluding laws in respect of patent, trademark, design
rights, antitrust or competition, trade secrets, data protec-
tion and privacy, access to public documents, and the law
of contract.
SEC. 10. CIRCUMVENTION OF DATABASE PROTECTION SYS-
TEMS.
No person shall import, manufacture or distribute
any device, product, or component incorporated into a de-
vice or product, or offer or perform any service, the pri-
mary purpose or effect of which is to avoid, bypass, re-
move, deactivate, or otherwise circumvent, without the au-
thority of the database owner or the law, any process,
treatment, mechanism or system which prevents or inhib-
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its the extraction, use or reuse of the contents of the
database in violation of section 4 hereof.
SEC. 11. INTEGRITY OF DATABASE MANAGEMENT INFOR-
MATION.
(a) FALSE
DATABASE
MANAGEMENT
INFORMA-
TION.—No person shall knowingly provide database man-
agement information that is false, or knowingly publicly
distribute or import for public distribution database man-
agement information that is false.
(b) REMOVAL OR ALTERATION OF DATABASE MAN-
AGEMENT INFORMATION.—No person shall, without au-
thority of the database owner or the law, (i) knowingly
remove or alter any database management information,
(ii) knowingly distribute or import for distribution
database management information that has been altered
without authority of the database owner or the law; or
(iii) knowingly distribute or import for distribution copies
of a database from which database management informa-
tion has been removed without the authority of the
database owner or the law.
SEC. 12. CIVIL REMEDIES FOR VIOLATION OF SECTIONS 10
OR 11.
(a) CIVIL ACTIONS.—Any person injured by a viola-
tion of section 10 or section 11 may bring a civil action
for such violation in an appropriate United States district
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court, without regard to the amount in controversy: Pro-
vided, however, That any action against a State govern-
mental entity may be brought in any court that has juris-
diction over claims against such entity.
(b) POWERS OF THE COURT.—In an action brought
under subsection (a), the court—
(1) may grant temporary and permanent in-
junctions on such terms as it deems reasonable to
prevent or restrain a violation;
(2) at any time while an action is pending, may
order the impounding, on such terms as it deems
reasonable, of any device or product that is in the
custody or the control of the alleged violator and
that the court has reasonable cause to believe was
involved in a violation;
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of
costs by or against any party other than the United
States or an officer thereof;
(5) in its discretion may award reasonable at-
torney’s fees to the prevailing party; and
(6) may, as part of a final judgment or decree
finding a violation, order the remedial modification
or the destruction of any device or product involved
in the violation that is in the custody or control of
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the violator or has been impounded under subsection
(ii).
(c) AWARDS OF DAMAGES.—
(1) IN
GENERAL.—Except as otherwise pro-
vided in this Act, a violator is liable for either (A)
the actual damages and any additional profits of the
violator, as provided by subsection (ii), or (B) statu-
tory damages, as provided by subsection (iii).
(2) ACTUAL DAMAGES.—The court shall award
to the complaining party the actual damages suf-
fered by him or her as a result of the violation, and
any profits of the violator that are attributable to
the violation and are not taken into account in com-
puting the actual damages, if the complaining party
elects such damages at any time before final judg-
ment is entered.
(3) STATUTORY DAMAGES.—
(A) At any time before final judgment is
entered, a complaining party may elect to re-
cover an award of statutory damages for each
violation of section 10 in the sum of not less
than $200 or more than $2,500 per device,
product, offer or performance of service, as the
court considers just.
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(B) At any time before final judgment is
entered, a complaining party may elect to re-
cover an award of statutory damages for each
violation of section 11 in the sum of not less
than $2,500 or more than $25,000.
(4) REPEATED
VIOLATIONS.—In any case in
which the injured party sustains the burden of prov-
ing, and the court finds, that a person has violated
section 10 or 11 within three years after a final
judgment was entered against that person for an-
other such violation, the court may increase the
award of damages up to triple the amount that
would otherwise be awarded, as the court considers
just.
(5) INNOCENT VIOLATIONS.—The court in its
discretion may reduce or remit altogether the total
award of damages in any case in which the violator
sustains the burden of proving, and the court finds,
that the violator was not aware and had no reason
to believe that its acts constituted a violation.
(d) Subsections (b) (i) and (ii) shall not apply to any
action against the United States Government.
(e) The relief provided under subsection (b) shall be
available against a State governmental entity to the extent
allowed by applicable law.
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SEC. 13. CRIMINAL OFFENSES AND PENALTIES FOR VIOLA-
TION OF SECTION 11.
Any person who violates section 11 with intent to de-
fraud shall be fined not more than $500,000 or impris-
oned for not more than five years, or both.
SEC. 14. LIMITATIONS ON ACTIONS.
No action shall be maintained under this Act unless
it is commenced within three years after the database
owner knew or should have known of the claim.
SEC. 15. EFFECTIVE DATE.
(a) This Act shall take effect immediately upon enact-
ment, and shall be applicable to acts committed on or after
that date.
(b) No person shall be liable under this Act for use
or reuse of database contents lawfully extracted from a
database, prior to the effective date of this Act, by that
person or by that person’s predecessor in interest.
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