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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
H. R. 1858
To promote electronic commerce through improved access for consumers to
electronic databases, including securities market
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
To promote electronic commerce through improved access for consumers to
electronic databases, including securities market
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress
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
(A) has been collected or maintained by the United States of
America, or any agency or instrumentality
(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
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
(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
(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
(3) AUTHORITY TO EXCLUDE ADDITIONAL GOVERNMENT-SUPPORTED
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
(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
(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
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
(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
(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
(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
(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
(1) the availability of databases, search engines, and other tools
for locating information necessary for electronic
(2) the extent of competition between database producers,
including the concentration of market power within the
(3) the investment in the development and maintenance of
databases, including changes in the number and size of
(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
`(e) MISAPPROPRIATION OF REAL-TIME MARKET INFORMATION-
`(1) PROHIBITION AGAINST MISAPPROPRIATION- Subject to paragraphs
(3), (4), and (5), any person
`(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
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
`(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
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
`(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
`(ii) to impair or limit the authority of the
`(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
`(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
`(i) with respect to quotations and transactions in any
`(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
`(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.