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[registrars] Database Protection Bill



The Honorable Congress from Virginia has introduced into the House the
following piece of legislation. It would have just saved everyone a lot of
trouble if he just came out and said NSI owns the Whois database. I urge
those companies located in the United States to contact their local Congress
person, and the European Registrars to forward this lovely piece of
legislation to the EU.


HR 1858 IH

                                         106th CONGRESS

                                            1st Session

                                            H. R. 1858

To promote electronic commerce through improved access for consumers to
electronic databases, including securities market
information databases.

                              IN THE HOUSE OF REPRESENTATIVES

                                          May 19, 1999

Mr. BLILEY (for himself, Mr. DINGELL, Mr. TAUZIN, Mr. MARKEY, Mr. OXLEY, and
Mr. TOWNS) introduced the
following bill; which was referred to the Committee on Commerce



                                             A BILL

To promote electronic commerce through improved access for consumers to
electronic databases, including securities market
information databases.

     Be it enacted by the Senate and House of Representatives of the United
States of America in Congress
     assembled,

SECTION 1. SHORT TITLE.

     This Act may be cited as the `Consumer and Investor Access to
Information Act of 1999'.

                 TITLE I--COMMERCE IN DUPLICATED DATABASES PROHIBITED

SEC. 101. DEFINITIONS.

     As used in this title:

          (1) DATABASE- The term `database' means a collection of discrete
items of information that have been
          collected and organized in a single place, or in such a way as to
be accessible through a single source, through the
          investment of substantial monetary or other resources, for the
purpose of providing access to those discrete items
          of information by users of the database. However, a discrete
section of a database that contains multiple discrete
          items of information may also be treated as a database.

          (2) DUPLICATE OF A DATABASE- A database is `a duplicate' of any
other database if the database is
          substantially the same as such other database, and was made by
extracting information from such other database.

          (3) INFORMATION- The term `information' means facts, data, or any
other intangible material capable of being
          collected and organized in a systematic way, with the exception of
works of authorship.

          (4) COMMERCE- The term `commerce' means all commerce which may be
lawfully regulated by the Congress.

          (5) IN COMPETITION- The term `in competition with' when used with
respect to the sale or distribution of a
          database to the public means that the database--

               (A) displaces substantial sales or licenses of the database
of which it is a duplicate; and

               (B) significantly threatens the opportunity to recover a
return on the investment in the collecting or
               organizing of the duplicated database.

          (6) GOVERNMENT DATABASE- The term `government database' means a
database that--

               (A) has been collected or maintained by the United States of
America, or any agency or instrumentality
               thereof; or

               (B) is required by Federal statute or regulation to be
collected or maintained, to the extent so required.

SEC. 102. PROHIBITION AGAINST DISTRIBUTION OF DUPLICATES.

     It is unlawful for any person, by any means or instrumentality of
interstate or foreign commerce or communications, to
     sell or distribute to the public a database that--

          (1) is a duplicate of another database that was collected and
organized by another person; and

          (2) is sold or distributed in commerce in competition with that
other database.

SEC. 103. PERMITTED ACTS.

     (a) COLLECTING OR USE OF INFORMATION OBTAINED THROUGH OTHER MEANS-
Nothing in this title
     shall restrict any person from selling or distributing to the public a
database consisting of information obtained by means
     other than by extracting it from a database collected and organized by
another person.

     (b) NEWS REPORTING- Nothing in this title shall restrict any person
from selling or distributing to the public a
     duplicate of a database for the sole purpose of news reporting,
including news gathering and dissemination, or comment,
     unless the information duplicated is time sensitive and has been
collected by a news reporting entity, and the sale or
     distribution is part of a consistent pattern engaged in for the purpose
of direct competition.

     (c) LAW ENFORCEMENT AND INTELLIGENCE ACTIVITIES- Nothing in this title
shall prohibit an officer, agent,
     or employee of the United States, a State, or a political subdivision
of a State, or a person acting under contract of such
     officers, agents or employees, from selling or distributing to the
public a duplicate of a database as part of lawfully
     authorized investigative, protective, or intelligence activities.

     (d) SCIENTIFIC, EDUCATIONAL, OR RESEARCH USES- No person or entity who
for scientific, educational, or
     research purposes duplicates the same information that has been
collected or generated by another person or entity shall
     incur liability under this title so long as such conduct is not part of
a consistent pattern engaged in for the purpose of
     direct commercial competition with that other person.

SEC. 104. EXCLUSIONS.

     (a) GOVERNMENT INFORMATION-

          (1) EXCLUSION OF GOVERNMENT DATABASES- Protection under section
102 shall not extend to
          government databases.

          (2) INCORPORATED NONGOVERNMENT PORTIONS PROTECTED- The
incorporation of all or part of
          a government database into a non-government database does not
preclude protection for the portions of the
          non-government database which came from a source other than the
government database.

          (3) AUTHORITY TO EXCLUDE ADDITIONAL GOVERNMENT-SUPPORTED
DATABASES- Nothing
          in this

title shall prevent the Federal Government or a State or local government
from establishing by law or contract that a database,
the creation or maintenance of which is substantially funded by such
Federal, State, or local government, shall not be subject to
the protection afforded under this title.

     (b) DATABASES RELATED TO INTERNET COMMUNICATIONS- Protection under
section 102 does not extend
     to a database incorporating information collected or organized--

          (1) to perform the function of addressing, routing, forwarding,
transmitting, or storing Internet communications; or

          (2) to perform the function of providing or receiving connections
for Internet communications.

     (c) COMPUTER PROGRAMS-

          (1) PROTECTION NOT EXTENDED- Subject to paragraph (2), protection
under section 102 shall not extend
          to computer programs, including any computer program used in the
manufacture, production, operation, or
          maintenance of a database, or any element of a computer program
necessary to its operation.

          (2) INCORPORATED DATABASES- A database that is otherwise subject
to protection under section 102 is
          not disqualified from such protection solely because it resides in
a computer program, so long as the database
          functions as a database within the meaning of this title and not
as an element necessary to the operation of the
          computer program.

     (d) NONPROTECTABLE SUBJECT MATTER- Protection for databases under
section 102 does not extend to the
     sale or distribution to the public of a duplicate of any individual
idea, fact, procedure, system, method of operation,
     concept, principle, or discovery.

     (e) SUBSCRIBER LIST INFORMATION- Protection for databases under section
102 does not extend to subscriber
     list information within the meaning of section 222(f) of the
Communications Act of 1934 (47 U.S.C. 222(f)). Nothing in
     this subsection shall affect the operation of section 222(e) of such
Act, under which a telecommunications carrier
     provides, upon request, subscriber list information for the purposes of
publishing directories in any format under
     nondiscriminatory and reasonable rates, terms, and conditions.

SEC. 105. RELATIONSHIP TO OTHER LAWS.

     (a) OTHER RIGHTS NOT AFFECTED- Subject to subsection (b), nothing in
this title shall affect rights, limitations, or
     remedies concerning copyright, or any other rights or obligations
relating to information, including laws with respect to
     patent, trademark, design rights, antitrust, trade secrets, privacy,
access to public documents, misuse, and the law of
     contract.

     (b) PREEMPTION OF STATE LAW- On or after the effective date of this
Act, no State law that prohibits or that
     otherwise regulates conduct that is subject to the prohibitions
specified in section 102 shall be effective to the extent that
     such State law is inconsistent with section 102.

     (c) LICENSING- Subject to the provisions on misuse in section 106(b),
nothing in this title shall restrict the rights of
     parties freely to enter into licenses or any other contracts with
respect to the use of information.

     (d) COMMUNICATIONS ACT OF 1934- Nothing in this title shall affect the
operation of the Communications Act of
     1934 (47 U.S.C. 151 et seq.) or the authority of the Federal
Communications Commission.

SEC. 106. LIMITATIONS ON LIABILITY.

     (a) SERVICE PROVIDER LIABILITY- A provider of telecommunications
services or information services (within the
     meaning of section 3 of the Communications Act of 1934 (47 U.S.C.
153)), or the operator of facilities therefor, shall
     not be liable for a violation of section 102 if such provider or
operator did not initially place the database that is the
     subject of the violation on a system or network controlled by such
provider or operator.

     (b) MISUSE- A person shall not be liable for a violation of section 102
if the person benefiting from the protection
     afforded a database under section 102 misuses the protection. In
determining whether a person has misused the
     protection afforded under this title, a court shall consider, among
other factors--

          (1) the extent to which the ability of persons to engage in the
permitted acts under this title has been frustrated by
          contractual arrangements or technological measures;

          (2) the extent to which information contained in a database that
is the sole source of the information contained
          therein is made available through licensing or sale on reasonable
terms and conditions;

          (3) the extent to which the license or sale of information
contained in a database protected under this title has been
          conditioned on the acquisition or license of any other product or
service, or on the performance of any action, not
          directly related to the license or sale;

          (4) the extent to which access to information necessary for
research, competition, or innovation purposes has
          been prevented;

          (5) the extent to which the manner of asserting rights granted
under this title constitutes a barrier to entry into the
          relevant database market; and

          (6) the extent to which the judicially developed doctrines of
misuse in other areas of the law may appropriately be
          extended to the case or controversy.

SEC. 107. ENFORCEMENT.

     (a) USE OF FEDERAL TRADE COMMISSION ACT AUTHORITY- The Federal Trade
Commission shall have
     jurisdiction, under section 5 of the Federal Trade Commission Act (15
U.S.C. 45), to prevent violations of section 102
     of this title.

     (b) RULEMAKING AUTHORITY- The Federal Trade Commission may, pursuant to
subparagraph (A) or (B) of
     section 18(a) of the Federal Trade Commission Act (15 U.S.C. 57a(a)),
but without regard to the limitations contained
     in section 18(b)(3) of such Act, prescribe rules to implement this
title.

     (c) ENFORCEMENT- Any violation of any rule prescribed under subsection
(b) shall be treated as a violation of a rule
     respecting unfair or deceptive acts or practices under section 5 of the
Federal Trade Commission Act (15 U.S.C. 45).
     Notwithstanding section 5(a)(2) of such Act (15 U.S.C. 45(a)(2)),
communications common carriers shall be subject to
     the jurisdiction of the Federal Trade Commission for purposes of this
title.

     (d) ACTIONS BY THE COMMISSION- The Federal Trade Commission shall
prevent any person from violating
     section 102 or a rule of the Commission under subsection (b) of this
section in the same manner, by the same means, and
     with the same jurisdiction, powers, and duties as though all applicable
terms and provisions of the Federal Trade
     Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a
part of this title. Any person who violates
     section 102 or such rule shall be subject to the penalties and entitled
to the privileges and immunities provided in the
     Federal Trade Commission Act in the same manner, by the same means, and
with the same jurisdiction, power, and
     duties as though all applicable terms and provisions of the Federal
Trade Commission Act were incorporated into and
     made a part of this title.

SEC. 108. REPORT TO CONGRESS.

     Not later than 36 months after the date of enactment of this title, the
Federal Trade Commission shall report to the
     Congress on the effect this title has had on electronic commerce and on
the United States database industry and related
     parties, including--

          (1) the availability of databases, search engines, and other tools
for locating information necessary for electronic
          commerce;

          (2) the extent of competition between database producers,
including the concentration of market power within the
          database industry;

          (3) the investment in the development and maintenance of
databases, including changes in the number and size of
          databases;

          (4) the availability of information to industries and researchers
which rely upon such availability;

          (5) whether in the period after enactment of this title database
producers have faced unfair competition,
          particularly from publishers in the European Union; and

          (6) the extent to which extraction of information from databases,
to a degree insufficient to result in liability under
          section 102, is harming database producers' incentive to collect
and organize databases.

SEC. 109. EFFECTIVE DATE.

     This title shall take effect on the date of the enactment of this Act,
and shall apply to the sale or distribution after that date
     of a database that was collected and organized after that date.

                         TITLE II--SECURITIES MARKET INFORMATION

SEC. 201. MISAPPROPRIATION OF REAL-TIME MARKET INFORMATION.

     Section 11A of the Securities Exchange Act of 1934 (15 U.S.C. 78k-1) is
amended by adding at the end the following
     new subsection:

     `(e) MISAPPROPRIATION OF REAL-TIME MARKET INFORMATION-

          `(1) PROHIBITION AGAINST MISAPPROPRIATION- Subject to paragraphs
(3), (4), and (5), any person
          who--

               `(A) obtains directly or indirectly from a market information
processor real-time market information, and

               `(B) directly or indirectly sells, distributes or
redistributes, or otherwise disseminates such real-time market
               information, without the authorization of the market
information processor,

          shall be liable to that market information processor for the
remedies set forth in paragraph (2).

          `(2) CIVIL REMEDIES-

               `(A) CIVIL ACTIONS- Any person who is injured by a violation
of paragraph (1) may bring a civil action
               for such a violation in an appropriate United States district
court, except that any action against a State
               governmental entity 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
               under this subsection 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 a violation of
               paragraph (1).

               `(C) MONETARY RELIEF- When a violation of paragraph (1) has
been established in any civil action
               arising under this subsection, the plaintiff shall be
entitled to recover any damages sustained by the plaintiff.

               `(D) DISGORGEMENT- When a violation of paragraph (1) has been
established, if the plaintiff is not able
               to prove recoverable damages to the full extent of the
defendant's monetary gain directly attributable to the
               violation, the court, in its equitable discretion, may order
the defendant to disgorge the amount of such
               monetary gain to the plaintiff.

          `(3) PERMITTED ACTS-

               `(A) GATHERING OR USE OF REAL-TIME MARKET INFORMATION
INDEPENDENTLY
               OBTAINED- Nothing in this subsection shall restrict any
person from independently gathering real-time
               market information, or from redistributing or disseminating
such independently gathered information.

               `(B) NEWS REPORTING- Nothing in this subsection shall
restrict any news reporting entity from
               extracting real-time market information for the sole purpose
of news reporting, including news gathering,
               dissemination, and comment, unless the extraction is part of
a consistent pattern of competing with a market
               information processor in the distribution of real-time market
information.

          `(4) RELATIONSHIP TO OTHER LAWS-

               `(A) PREEMPTION- Subject to subparagraphs (B), (C), and (D),
on and after the date of enactment of
               this subsection, this section--

                    `(i) shall exclusively govern the unauthorized
extraction, sale, distribution or redistribution, or other
                    dissemination of real-time market information; and

                    `(ii) shall supersede any other Federal or State law
(either statutory or common law) to the extent
                    that such other Federal or State law is inconsistent
with this section.

               `(B) FEDERAL SECURITIES LAWS- Nothing in this subsection
shall be construed--

                    `(i) to limit or otherwise affect the application of any
provision of the securities laws (as defined in
                    section 3(a)(47)), or the rules and regulations
thereunder; or

                    `(ii) to impair or limit the authority of the
Commission.

               `(C) ANTITRUST- Nothing in this subsection shall limit in any
way the constraints that are imposed by
               Federal and State antitrust laws on the manner in which
products and services may be provided to the
               public, including those regarding single suppliers of
products and services.

               `(D) LICENSING- Nothing in this subsection shall restrict the
rights of parties freely to enter into licenses
               or any other contracts with respect to the extraction, sale,
distribution or redistribution, or other
               dissemination of real-time market information.

          `(5) LIMITATIONS ON ACTIONS-

               `(A) CIVIL ACTIONS- No civil action shall be maintained under
this subsection unless it is commenced
               within one year after the cause of action arises or claim
accrues.

               `(B) ADDITIONAL LIMITATION- No civil action shall be
maintained under this subsection for the
               extraction, sale, distribution or redistribution, or other
dissemination of market information that is not
               real-time market information.

               `(C) PERSONS SUBJECT TO CONTRACTUAL REMEDIES- No civil action
shall be maintained
               under this subsection by a market information processor
against any person to whom such processor
               provides real-time market information pursuant to a contract
or agreement between such processor and
               such person with respect to any real-time market information
or any rights or remedies provided pursuant
               to such contract or agreement.

          `(6) DEFINITIONS- As used in this subsection:

               `(A) MARKET INFORMATION- The term `market information' means
information--

                    `(i) with respect to quotations and transactions in any
security; and

                    `(ii) the collection, processing, distribution, and
publication of which is subject to this title.

               `(B) REAL-TIME MARKET INFORMATION- Taking into account the
present state of technology,
               different types of market data, how market participants use
market data, and other relevant factors, the
               Commission may, consistent with the protection of investors
and the public interest, prescribe by rule the
               extent to which market information shall be considered to be
real-time market information for purposes of
               this subsection.

               `(C) MARKET INFORMATION PROCESSOR- The term `market
information processor' with respect
               to any market information means the securities exchange,
self-regulatory organization, securities information
               processor, or national market system plan administrator that
is responsible under this title or the rules or
               regulations thereunder, for the collection, processing,
distribution, and publication of, or preparing for
               distribution or publication, such market information.'.

SEC. 202. EFFECTIVE DATE.

     (a) IN GENERAL- The amendment made by section 201 shall take effect on
the date of the enactment of this Act, and
     shall apply to acts committed on or after that date.

     (b) PRIOR ACTS NOT AFFECTED- No person shall be liable under section
11A(e) of the Securities Exchange Act
     of 1934 (15 U.S.C. 78k-1(e)), as added by section 201 of this Act, for
the extraction, sale, distribution or redistribution,
     or other dissemination of real-time market information prior to the
date of enactment of this Act, by that person or by
     that person's predecessor in interest.

END