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Union Calendar No. 252
108TH CONGRESS 
2D SESSION 
H. R. 3261
[Report No. 108–421, Parts I and II] 
To prohibit the misappropriation of certain databases. 
IN THE HOUSE OF REPRESENTATIVES 
OCTOBER 8, 2003
Mr. COBLE (for himself, Mr. SMITH of Texas, Mr. HOBSON, Mr. GREENWOOD, 
Mr. TAUZIN, and Mr. SENSENBRENNER) introduced the following bill; 
which was referred to the Committee on the Judiciary 
FEBRUARY 11, 2004
Reported from the Committee on the Judiciary with an amendment 
[Strike out all after the enacting clause and insert the part printed in italic] 
FEBRUARY 11, 2004
Referred sequentially to the Committee on Energy and Commerce for a period 
ending not later than March 12, 2004, for consideration of such provi-
sions of the bill and amendment as fall within the jurisdiction of that 
committee pursuant to clause 1(f), rule X 
MARCH 11, 2004
Additional sponsors: Mr. WEXLER, Mr. TURNER of Ohio, Mr. PORTMAN, and 
Mr. DELAHUNT 
MARCH 11, 2004
Reported adversely from the Committee on Energy and Commerce with an 
amendment, committed to the Committee of the Whole House on the 
State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic] 
[For text of introduced bill, see copy of bill as introduced on October 8, 2003] 
A BILL 
To prohibit the misappropriation of certain databases.
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 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, 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 assembling 
of preexisting materials or of data that are selected, 
coordinated, or arranged in such a way that the re-
sulting work as a whole constitutes an original work 
of authorship. The term ‘‘compilation’’ includes collec-
tive 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 dis-
crete 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, 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.
(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 com-
merce is planned, arranged, coordinated, adjusted, 
agreed upon, or settled between the two persons acting 
together, in pursuance of some design or in accord-
ance 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 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. 
(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, or any com-
monwealth, 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 infor-
mation contained in the database.
(11) MAKING AVAILABLE IN COMMERCE TO OTH-
ERS.—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 directed 
to different persons by the same or concerted parties 
in determining whether the limits imposed by sub-
paragraph (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 main-
tained by another person, knowing that such making avail-
able in commerce is without the authorization of that other 
person (including a successor in interest) or that other per-
son’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 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 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 equiva-
lent 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 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 context 
of the industry sector involved. 
SEC. 4. PERMITTED ACTS. 
(a) INDEPENDENTLY GENERATED OR GATHERED IN-
FORMATION.—This Act shall not restrict any person from—
(1) independently generating or gathering infor-
mation obtained by means other than extracting it 
from a database generated, gathered, or maintained 
by another person; and 
(2) making that information available in com-
merce. 
(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 re-
search institutions and other factors that the court deter-
mines 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 re-
strict any person from making available in commerce infor-
mation for the primary purpose of news reporting, includ-
ing news and sports gathering, dissemination, and com-
ment, 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.—
(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 subsection 
shall preclude protection under this Act for a data-
base gathered, organized, or maintained by an em-
ployee or agent of an entity described in paragraph 
(1) that is acting outside the scope of such employ-
ment or agency, or by a Federal, State, or local edu-
cational institution, or its employees or agents, in the 
course of engaging in education, research, or scholar-
ship. 
(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 oper-
ation. 
(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 col-
lection 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, de-
sign rights, antitrust, trade secrets, privacy, access to 
public documents, and misuse. 
(2) RIGHT OF CONTRACT.—Notwithstanding sub-
section (b), nothing in this Act shall affect rights, lim-
itations, or remedies concerning the common law 
right of contract. 
(b) PREEMPTION OF STATE LAW.—
(1) LAWS REGULATING CONDUCT THAT IS SUB-
JECT 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 con-
duct 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 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 avail-
able 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 avail-
able in commerce or extracting subscriber list information, 
as such term is defined in section 222(h)(3) of the Commu-
nications 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 In-
vestor 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 Ex-
change 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 de-
cision 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 sub-
section (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 pro-
ceedings in contempt or otherwise by any United States dis-
trict court having jurisdiction over that person. 
(c) MONETARY RELIEF.—
(1) ACTUAL DAMAGES AND ATTRIBUTABLE PROF-
ITS.—When a violation of section 3 has been estab-
lished 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 at-
tributable to the violation and are not taken into ac-
count 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 di-
rection. In assessing profits the plaintiff shall be re-
quired 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, disk-
ettes, 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 sec-
tion 3, order the remedial modification or destruction of 
all copies of contents of a database made available in com-
merce or attempted to be made available in commerce in 
violation of section 3, and of all masters, tapes, disks, disk-
ettes, 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
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 appli-
cable law. 
(h) LIMITATION
ON LIABILITY
OF CERTAIN ENTI-
TIES.—
(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 con-
tent 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.—
(1) NOTICE.—The Federal Trade Commission, 
the Director of the United States Patent and Trade-
mark 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 Commis-
sion, 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 ju-
dicial 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 Trade-
mark 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 re-
ports 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 Com-
mission, the Director of the Patent and Trade-
mark 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 Reg-
ister of Copyrights, as the case may be, considers 
appropriate. 
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 action 
arises or claim accrues. 
SEC. 9. EXCLUSION FROM LIABILITY FOR EDUCATIONAL IN-
STITUTIONS 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 edu-
cational institution or any nonprofit research labora-
tory, 
(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 in-
stitution acting in furtherance of the supervised ac-
tivities or programs of the institution—
by reason of activities undertaken for nonprofit education, 
scientific, or research purposes. 
(b) ACCREDITATION.—For purposes of this section, ac-
creditation shall be as determined by a regional or national 
accrediting agency recognized by the Council on Higher Ac-
creditation or the United States Department of Education. 
(c) NONPROFIT RESEARCH LABORATORY.—For pur-
poses 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 lab-
oratory, or student of such institution to the extent that 
the institution, laboratory, employee, or student makes 
available substantially all of a database in direct commer-
cial 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 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 en-
actment of this Act, by that person or by that person’s pred-
ecessor in interest. 
SEC. 11. NONSEVERABILITY. 
(a) IN GENERAL.—If the Supreme Court of the United 
States holds that the provisions of section 3, relating to pro-
hibition against misappropriation of databases, are invalid 
under Article I of, or the First Amendment to, the Constitu-
tion 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 ef-
fective at the end of the 10-year period beginning on the 
date of the enactment of this Act.
Union Calendar No. 252
108TH CONGRESS 
2D SESSION 
H. R. 3261
[Report No. 108–421, Parts I and II] 
A BILL 
To prohibit the misappropriation of certain 
databases. 
FEBRUARY 11, 2004
Reported from the Committee on the Judiciary with an 
amendment 
Referred sequentially to the Committee on Energy and 
Commerce for a period ending not later than March 
12, 2004, for consideration of such provisions of the 
bill and amendment as fall within the jurisdiction of 
that committee pursuant to clause 1(f), rule X 
MARCH 11, 2004
Reported adversely from the Committee on Energy and 
Commerce with an amendment, committed to the Com-
mittee of the Whole House on the State of the Union, 
and ordered to be printed