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H.R. 3262 (ih) To amend title XVIII of the Social Security Act to expand coverage under part B of the Medicare program of certain antibiotics which are parenterally administered in a home setting, and for other purposes. [Introduced in House] %%Filename:...

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  1st Session
                                H. R. 3261

         To prohibit the misappropriation of certain databases.



                            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 Representatives of the 
United States of America in Congress assembled,


    This Act may be cited as the ``Database and Collections of 
Information Misappropriation Act''.


    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) Covered entity.--The term ``covered entity'' means a 
        legal entity that is--
                    (A) a telecommunications carrier engaged in the 
                provision of a telecommunications service;
                    (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, formatting, 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 another 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 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 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.
            (6) 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.
            (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 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.
            (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 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.
            (10) Internet access service.--The term ``Internet access 
        service'' means a service that enables users to access content, 
        information, electronic mail, or other services offered over 
        the Internet, and may also include access to proprietary 
        content, information, 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, 
        pointers, 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 information contained in the 
            (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; 
                    (B) a number of persons that extends beyond--
                            (i) a family and its social acquaintances; 
                            (ii) those who could reasonably anticipate 
                        to have a database made available in commerce 
                        to them without a customary commercial 
                A court may take into account repeated acts directed to 
                different persons by the same or concerted parties in 
                determining the limits imposed by subparagraph (B)(ii) 
                have been exceeded.
            (15) Telecommunications.--The term ``telecommunications'' 
        means the transmission, between or among points specified by 
        the user, of information of the user's choosing, without change 
        in the form or content of the information as sent and received.
            (16) Telecommunications carrier.--The term 
        ``telecommunications carrier'' means any provider 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 provider of operator services.
            (17) Telecommunications service.--The term 
        ``telecommunications service'' means the offering 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 facilities used.


    (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 person (including a successor in interest) or that 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 
            (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 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 
    (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.


    (a) Independently Generated or Gathered Information.--This Act 
shall not restrict any person from independently generating or 
gathering information obtained 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, scientific, 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 reasonable 
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 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.


    (a) Government Information.--
            (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; 
                    (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 
            (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 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.


    (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 
        or after the effective date of this Act, no State statute, 
        rule, regulation, or common law doctrine that prohibits or 
        otherwise regulates conduct that is the subject of 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 

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