106th CONGRESS, 1ST SESSION
IN THE HOUSE OF REPRESENTATIVES
REPORTED IN THE HOUSE
 

H. R. 354
 

1999 H.R. 354; 106 H.R. 354

Retrieve Bill Tracking Report
 

SYNOPSIS:
A bill to amend title 17, United States Code, to provide protection for certain collections of information.

DATE OF INTRODUCTION:  January 19, 1999

TEXT:
                              106th CONGRESS

                                1st Session

                       Report No. 106-349, Part I

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                                  A BILL

To amend title 17, United States Code, to provide protection for certain
collections of information.

 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 "Collections of Information Antipiracy Act".

SEC. 2. COLLECTIONS OF INFORMATION.

 Title 17, United States Code, is amended by adding at the end the
following new chapter:

                  "CHAPTER 14--COLLECTIONS OF INFORMATION

                                   "Sec.

                            "1401. Definitions.

                            "1402. Prohibition.

                          "1403. Permitted acts.

                            "1404. Exclusions.

                    "1405. Relationship to other laws.

                          "1406. Civil remedies.

                  "1407. Criminal offenses and penalties.

                         "1408. Defense to claims.

                      "1409. Limitations on actions.

                         "1410. Study and report.

"SEC. 1401. DEFINITIONS

 "As used in this chapter:

      "(1) Collection of information.--The term 'collection of
      information' means information that has been collected and has been
      organized for the purpose of bringing discrete items of information
      together in one place or through one source so that persons may access
      them. The term does not include an individual work which, taken as a
      whole, is a work of narrative literary prose, but may include a
      collection of such works.

      "(2) Information.--The term 'information' means facts, data,
      works of authorship, or any other intangible material capable of being
      collected and organized in a systematic way.

      "(3) Primary market.--The term 'primary market' means all markets--

 "(A) in which a product or service which incorporates a collection of
information is offered; and

 "(B) in which a person claiming protection with respect to that
collection of information under section 1402 derives or reasonably expects
to derive revenue, directly or indirectly.

      "(4) Related market.--The term 'related market' means any market--

 "(A)(i) in which products or services which incorporate collections of
information similar to a product or service offered by a person claiming
protection under section 1402 are offered; and

 "(ii) in which persons offering such similar products or services derive
or reasonably expect to derive revenue, directly or indirectly; or

 "(B) any market in which a person claiming protection with respect to a
collection of information under section 1402 has taken demonstrable steps to
offer in commerce within a short period of time a product or service
incorporating that collection of information with the reasonable expectation
to derive revenue, directly or indirectly.

      "(5) Commerce.--The term 'commerce' means all commerce which
      may be lawfully regulated by the Congress.

      "(6) Maintain.--To 'maintain' a collection of information
      means to update, verify or supplement the information the collection
      contains.

"SEC. 1402. PROHIBITION

 "(a) Making Available or Extracting To Make Available.--Any person who
makes available to others, or extracts to make available to others, all or a
substantial part of a collection of information gathered, organized, or
maintained by another person through the investment of substantial monetary
or other resources, so as to cause material harm to the primary market or a
related market of that other person, or a successor in interest of that
other person, for a product or service that incorporates that collection of
information and is offered or intended to be offered in commerce by that
other person, or a successor in interest of that person, shall be liable to
that person or successor in interest for the remedies set forth in section
1406.

 "(b) Other Acts of Extraction.--Any person who extracts all or a
substantial part of a collection of information gathered, organized, or
maintained by another person S6203

"SEC. 1403. PERMITTED ACTS

 "(a) Reasonable Uses. Notwithstanding section 1402, the making available
or extraction of information for purposes such as illustration, explanation,
example, comment, criticism, teaching, research, or analysis is not a
violation of this chapter, if it is reasonable under the circumstances. In
determining whether such an act is reasonable under the circumstances, all
of the following factors shall be considered:

      "(1) The extent to which the making available or extraction
      is commercial or nonprofit.

      "(2) Whether the amount of information made available or
      extracted is appropriate and for the purpose.

      "(3) The good faith of the person making available or
      extracting the information.

      "(4) The extent to which and the manner in which the portion
      made available or extracted is incorporated into an independent work
      or collection, and the degree of difference between the collection
      from which the information is made available or extracted and the
      independent work or collection.

      "(5) The effect of the making available or extraction on the
      primary or related market for a protected collection of information.

 "(b) Certain Nonprofit Educational, Scientific, or Research Uses.
Notwithstanding section 1402, no person shall be restricted from making
available or extracting information for nonprofit educational, scientific,
or research purposes in a manner that does not materially harm the primary
market for the product or service referred to in section 1402.

 "(c) Individual Items of Information and Other Insubstantial Parts.
Nothing in this chapter shall prevent the making available or extraction of
an individual item of information, or other insubstantial part of a
collection of information, in itself. An individual item of information,
including a work of authorship, shall not itself be considered a substantial
part of a collection of information under section 1402. Nothing in this
subsection shall permit the repeated or systematic making available or
extracting of individual items or insubstantial parts of a collection of
information so as to circumvent the prohibition contained in section 1402.

 "(d) Gathering or Use of Information Obtained Through Other Means.
Nothing in this chapter shall restrict any person from independently
gathering information or making available information obtained by means
other than extracting it from a collection of information gathered,
organized, or maintained by another person through the investment of
substantial monetary or other resources.

 "(e) Making Available or Extraction of Information for Verification.
Nothing in this chapter shall restrict any person from making available or
extracting information from a collection of information within any entity or
organization, for the sole purpose of verifying the accuracy of information
independently gathered, organized, or maintained by that person. Under no
circumstances shall the information so used be made available to others or
extracted from the original collection in a manner that harms the primary
market or a related market for the collection of information from which it
is made available or extracted.

 "(f) News Reporting. Nothing in this chapter shall restrict any person
from making available or extracting information for the sole purpose of news
reporting on any

 "(g) Transfer of Copy. Nothing in this chapter shall restrict the owner
of a particular lawfully made copy of all or part of a collection of
information from selling or otherwise disposing of the possession of that
copy.

 "(h) Genealogical Information.

      "(1) In general. Notwithstanding section 1402, no person
      shall be restricted from--

 "(A) making available or extracting genealogical information for
nonprofit, religious purposes; or

 "(B) making available or extracting, for private, noncommercial
purposes, genealogical information that has been gathered, organized, or
maintained for nonprofit, religious purposes.

      "(1) Definition. For purposes of this subsection,
      'genealogical information' includes, but is not limited to, data
      indicating the date, time, or place of an individual's birth,
      christening, marriage, death, or burial, the identity of an
      individual's parents, spouse, children, or siblings, and other
      information useful in determining the identity of ancestors.

 "(i) Investigative, Protective, or Intelligence Activities. Nothing in
this chapter shall prohibit--

      "(1) an officer, agent, or employee of the United States, a
      State, or a political subdivision of a State; or

      "(2) a person acting under contract with an officer, agent,
      or employee described in paragraph (1),

from making available or extracting information as part of lawfully
authorized investigative, protective, or intelligence activities.

"SEC. 1401. EXCLUSIONS

 "(a) Government Collections of Information.

      "(1) Exclusion. Protection under this chapter shall not
      extend to collections of information gathered, organized, or
      maintained by or for a government entity, whether Federal, State, or
      local, including by any employee or agent of such government entity,
      or any person substantially funded by, exclusively licensed by, or
      working under contract to such government to achieve a government
      purpose or fulfill a government obligation as established by law or
      regulation, if such collections of information are gathered,
      organized, or maintained within the scope of the employment, agency,
      license, grant, contract, or funding. Nothing in this subsection shall
      preclude protection under this chapter for information gathered,
      organized, or maintained by such a person that is not within the scope
      of such employment, agency, license, grant, contract, or funding, or
      by a Federal or State educational institution in the course of
      engaging in education or scholarship.

      "(2) Exception. The exclusion under paragraph (1) does not
      apply to any information required to be collected and made available--

 "(A) under the Securities Exchange Act of 1934 by a national securities
exchange, a registered securities association, or a registered securities
information processor, subject to section 1405(g) of this title; or

 "(B) under the Commodity Exchange Act by a contract market, subject to
section 1405(g) of this title.

 "(b) Computer Programs.

      "(1) Protection not extended. Subject to paragraph (2),
      protection under this chapter shall not extend to computer programs,
      including, but not limited to, any computer program used in the
      manufacture, production, operation, or maintenance of a

      "(2) Incorporated collections of information. A collection of
      information that is otherwise subject to protection under this chapter
      is not disqualified from such protection solely because it is
      incorporated into a computer program.

 "(c) Digital Online Communications. Protection under this chapter shall
not extend to a product or service incorporating a collection of information
gathered, organized, or maintained to address, route, forward, transmit, or
store digital online communications, register addresses to be used in
digital online communications, or provide or receive access to connections
for digital online communications.

"SEC. 1405. RELATIONSHIP TO OTHER LAWS

 "(a) Other Rights Not Affected. Subject to subsection (b), nothing in
this chapter 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, and the law of contract.

 "(b) Preemption of State Law. On or after the effective date of this
chapter, all rights that are equivalent to the rights specified in section
1402 with respect to the subject matter of this chapter and protected by
this chapter shall be governed exclusively by Federal law, and no person is
entitled to any equivalent right in such subject matter under the common law
or statutes of any State. State laws with respect to trademark, design
rights, antitrust, trade secrets, privacy, access to public documents, and
the law of contract shall not be deemed to provide equivalent rights for
purposes of this subsection.

 "(c) Relationship to Copyright. Protection under this chapter is
independent of, and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection or limitation,
including, but not limited to, fair use, in any work of authorship that is
contained in or consists in whole or part of a collection of information.
This chapter does not provide any greater protection to a work of authorship
contained in a collection of information, other than a work that is itself a
collection of information, than is available to that work under any other
chapter of this title.

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

 "(e) Licensing. Nothing in this chapter shall restrict the rights of
parties freely to enter into licenses or any other contracts with respect to
making available or extracting collections of information.

 "(f) Communications Act of 1934.--Nothing in this chapter shall affect
the operation of the provisions of the Communications Act of 1934
(47 U.S.C. 151 et seq.), or shall restrict any person from making available
or extracting subscriber list information, as such term is defined in
section 222(f)(3) of the Communications Act of 1934 (47 U.S.C. 222(f)(3)).

 "(g) Securities and Commodities Market Information.

      "(1) Authority of sec and cftc. The Securities and Exchange
      Commission shall have the authority to modify the application of this
      chapter as it affects securities issues over which it has
      jurisdiction, and the Commodity Futures Trading Commission shall have
      the authority to modify the application of this chapter as it affects
      commodities issues over which it has jurisdiction.

      "(2) Federal agencies and acts. Notwithstanding paragraph
      (1), nothing in this chapter shall affect-- S6203

 "(A) the operation of the provisions of the Securities Exchange Act of
1934 (15 U.S.C. 78a et seq.) or the Commodity Exchange Act
(7 U.S.C. 1 et seq.);

 "(B) the jurisdiction or authority of the Securities and Exchange
Commission or the Commodity Futures Trading Commission; or

 "(C) the functions and operations of self-regulatory organizations and
securities information processors under the provisions of the Securities
Exchange Act of 1934 and the rules and regulations thereunder, including
making market information available pursuant to the provisions of that Act
and the rules and regulations thereunder.

      "(3) Prohibition. Notwithstanding any provision of subsection
      (a), (b), (c), (d), (e), (g), (h), or (i) of section 1403, nothing in
      this chapter shall permit the making available, extraction, resale, or
      other disposition of real-time market information except as the
      Securities Exchange Act of 1934, the Commodity Exchange Act, and the
      rules and regulations thereunder may otherwise provide. Nothing in
      subsection (f) of section 1403 shall be construed to permit any person
      to make available or extract real-time market information in a manner
      that constitutes a market substitute for a real-time market
      information service (including the real-time systematic updating of or
      display of a substantial part of market information) provided on a
      real-time basis.

      "(4) Definition. As used in this subsection, the term 'market
      information' means information relating to quotations and transactions
      that is collected, processed, distributed, or published pursuant to
      the provisions of the Securities Exchange Act of 1934 or by a contract
      market that is designated by the Commodity Futures Trading Commission
      pursuant to the Commodity Exchange Act and the rules and regulations
      thereunder.

 "(h) Protection of Privacy. Nothing in this chapter shall limit, impair,
or annul in any manner the protections under Federal or State law or
regulation relating to the collection or use of personally identifying
information, including medical information.

"SEC. 1406. CIVIL REMEDIES

 "(a) Civil Actions. Any person who is injured by a violation of section
1402 may bring a civil action for such a violation in an appropriate United
States district court without regard to the amount in controversy, 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 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 a violation of
section 1402. Any such injunction may be served anywhere in the United
States on the person enjoined, and may be enforced by proceedings in
contempt or otherwise by any United States district court having
jurisdiction over that person.

 "(c) Impoundment. At any time while an action under this section is
pending, the court may order the impounding, on such terms as it deems
reasonable, of all copies of contents of a collection of information made
available or extracted in violation of section 1402, 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 judgment or decree finding
a violation of section 1402, order the remedial modification or destruction
of all copies of contents of a collection of information made available or
extracted in violation of section 1402, 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 1402 has been
established 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
attributable to the violation and are not taken into account 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 direction. In
assessing profits the plaintiff shall be required to prove defendant's gross
revenue only and the defendant shall be required to prove all elements of
cost or deduction claims. In assessing damages the court may enter judgment,
according to the circumstances of the case, for any sum above the amount
found as actual damages, not exceeding three times that amount. The court in
its discretion may award reasonable costs and attorney's fees to the
prevailing party and shall award such costs and fees if it determines that
an action was brought under this chapter in bad faith against a nonprofit
educational, scientific, or research institution, library, or archives, or
an employee or agent of such an entity, acting within the scope of his or
her employment.

 "(e) Reduction or Remission of Monetary Relief for Nonprofit
Educational, Scientific, or Research Institutions and Employees Thereof. The
court shall reduce or remit entirely monetary relief under subsection (d) if
any case in which a defendant believed and had reasonable grounds for
believing that his or her conduct was permissible under this chapter, if the
defendant was a nonprofit educational, scientific, or research institution,
library, or archives, or an employee or agent of such an institution,
library, or archives acting within the scope of his or her employment.

 "(f) Actions Against United States Government. Subsections (b) and (c)
shall not apply to any action brought 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 applicable law.

 "(h) Relief Against Internet Service Providers. (1) The relief provided
under this section shall not be available against any Internet service
provider unless such provider violates section 1402 willfully.

 "(2) For purposes of this subsection, the term 'Internet service
provider' means an entity offering the transmission, routing, or providing
of connections for digital online communications, between or among points
specified by a user, of material of the user's choosing, without
modification to the content of the material as sent or received.

"SEC. 1407. CRIMINAL OFFENSES AND PENALTIES

 "(a) Violation.

      "(1) In general. Any person who violates section 1402
      willfully either--

 "(A) for purposes of direct or indirect commercial advantage or
financial gain;

 "(B) causes loss or damage aggregating $100,000 or more during any
1-year period to the person who gathered, organized, or maintained the
information concerned; or

 "(C) causes loss or damage aggregating $50,000 or more in any 1-year
period to the person who gathered, organized, or maintained the information
concerned,

    shall be punished as provided in subsection (b).

      "(2) Inapplicability. This section shall not apply to any
      employee or agent of a nonprofit educational, scientific, or research
      institution, library, archives, or law enforcement agency, or to any
      employee or agent of such an institution, library, archives, or agency
      acting within the scope of his or her employment.

 "(b) Penalties. (1) Any person who commits an offense under subsection
(a)(1)(A) shall be fined not more than $250,000, imprisoned not more than 5
years, or both.

 "(2) Any person who commits a second or subsequent offense under
subsection (a)(1)(A) shall be fined not more than $500,000, imprisoned not
more than 10 years, or both.

 "(3) Any person who commits an offense under subsection (a)(1)(B) shall
be fined not more than $250,000, imprisoned not more than 3 years, or both.

 "(4) Any person who commits a second or subsequent offense under
subsection (a)(1)(B) shall be fined not more than $500,000, imprisoned not
more than 6 years, or both.

 "(5) Any person who commits an offense under subsection (a)(1)(C) shall
be fined not more than $100,000, imprisoned not more than 1 year, or both.

 "(c) Victim Impact Statement. (1) During preparation of the presentence
report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure,
victims of the offense shall be permitted to submit, and the probation
officer shall receive, a victim impact statement that identifies the victim
of the offense and the extent and scope of the injury and loss suffered by
the victim, including the estimated economic impact of the offense on that
victim.

 "(2) Persons permitted to submit victim impact statements shall include--

      "(A) persons who gathered, organized, or maintained the
      information affected by conduct involved in the offense; and

      "(B) the legal representatives of such persons.

"SEC. 1408. DEFENSES TO CLAIMS

 "(a) Affirmative Defense When User Cannot Determine When Collection
First Offered in Commerce. No monetary relief shall be available for a
violation of section 1402 if the person who made available or extracted all
or a substantial part of the collection of information that is the source of
the violation could not reasonably determine whether the date on which the
portion of the collection that was made available or extracted was first
offered in commerce following the investment of resources that qualified
that portion of the collection for protection under this chapter by the
person claiming protection under this chapter or that person's predecessor
in interest was a date more than 15 years prior to making available or
extracting the information.

 "(b) Notice. In the case of a collection of information into which all
or a substantial part of a government collection of information is
incorporated after the effective date of this chapter, no monetary relief
shall be available for a violation of section 1402 unless a statement
appeared in connection with the version of the collection of information
from which the information was made available or extracted, in a manner and
location so as to give reasonable notice, identifying the government
collection and the government entity from which it was obtained.

 "(c) Access to Government Information.

      "(1) In general. In the case of a collection of information
      that incorporates all or a substantial part of a government collection
      of information, a nonprofit educational, scientific, or research
      institution, library, or archives, or an employee or agent of such an
      institution, library, or archives, acting within the scope of his or
      her employment, shall have a complete defense to an action for a
      violation of section 1402 for extracting the government information,
      if all of the following circumstances apply:

 "(A) The government information was not publicly available from the
government or reasonably available from any other source.

 "(B) The information was extracted for the purpose of engaging in
nonprofit educational, scientific, or research activities and not for the
purpose of offering the information obtained for sale or otherwise in the
market.

 "(C) Prior to extracting the government information, the person who
extracted it--

 "(i) made reasonable, good faith efforts to obtain the information from
other sources; and

 "(ii) made a written request to the person asserting protection under
this chapter, which clearly identified the information to be extracted and
described the reasonable, good faith efforts made under clause (i).

 "(D) The person claiming protection under this chapter did not make the
government information available within a reasonable time after receipt of
the request, in any form of that person's choosing, including the form in
which the government information was first obtained from the government
entity or its employee, agent, or exclusive licensee, at the cost of the
information's identification, extraction, and delivery.

      "(2) Applicability.--This subsection applies only to
      collections of information existing before the effective date of this
      chapter and only if the person claiming protection under this chapter
      can reasonably identify and extract the requested information in the
      form first obtained from the government entity, employee, agent, or
      exclusive licensee.

"SEC. 1409. LIMITATIONS ON ACTIONS

 "(a) Criminal Proceedings.--No criminal proceeding shall be maintained
under this chapter unless it is commenced within three years after the cause
of action arises.

 "(b) Civil Actions.--No civil action shall be maintained under this
chapter unless it is commenced within three years after the case of action
arises or claim accrues.

 "(c) Additional Limitation.--No criminal or civil action shall be
maintained under this chapter for making available or extracting all or a
substantial part of a collection of information that occurs more than 15
years after the portion of the collection that is made available or
extracted was first offered in commerce following the investment of
resources that qualified that portion of the collection for protection under
this chapter. In no case shall any protection under this chapter resulting
from a substantial investment of resources in maintaining a preexisting
collection prevent any information from being made available or extracted
from a copy of the preexisting collection after the 15 years have expired
with respect to the portion of that preexisting collection that is so made
available or extracted, and no liability under this chapter shall thereafter
attach to the making available or extraction of such information.

 "(d) Burden of Proof on Plaintiff To Show Portion First Offered in
Commerce No More Than 15 Years Old.--No action for a violation of section
1402 may be maintained unless the person claiming protection under this
chapter proves that the date on which the portion of the collection that was
made available or extracted was first offered by that person or that
person's predecessor in interest in commerce following the investment of
resources that qualified that portion of the collection for protection under
this chapter was no more than 15 years prior to the time when it was made
available or extracted by the defendant.

"SEC. 1410. STUDY AND REPORT

 "No later than 3 years after the date of the enactment of this chapter,
the Register of Copyrights and the Assistant Attorney General, Antitrust
Division of the Department of Justice, shall conduct a joint study and
submit a joint report to Congress on whether the defense provided for in
section 1408(c) should be expended to include collections of information
that do not incorporate all or a substantial part of a government collection
of information where the extracted information is not publicly available
from any other source.".

SEC. 3. CONFORMING AMENDMENTS.

 (A) Table of Chapters.--The table of chapters for title 17, United
States Code, is amended by adding at the end the following:

 (b) District Court Jurisdiction.--(1) Section 1338 of title 28, United
States Code, is amended--

      (A) in the section heading by striking "trademarks," and
      inserting "trademarks, collections of information,";

      (B) in subsection (a) by striking "trade-marks" and inserting
      "trademarks";

      (C) in subsection (b) by striking "trade-mark" and inserting
      "trademark"; and

      (D) by adding at the end the following:

 "(d) The district courts shall have original jurisdiction of any civil
action arising under chapter 14 of title 17, relating to collections of
information. Such jurisdiction shall be exclusive of the courts of the
States, except that any action against a State governmental entity may be
brought in any court that has jurisdiction over claims against such
entity.".

 (2) The item relating to section 1338 in the table of sections for
chapter 85 of title 28, United States Code, is amended by striking
"trade-marks," and inserting "trademarks, collections of information,".

 (c) Place for Bringing Actions.--(1) Section 1400 of title 28, United
States Code, is amended by adding at the end the following:

 "(c) Civil actions arising under chapter 14 of title 17, relating to
collections of information, may be brought in the district in which the
defendant or the defendant's agent resides or may be found.".

 (2) The section heading for section 1400 of title 28, United States
Code, is amended to read as follows:

"SEC. 1400. PATENTS AND COPYRIGHTS, MASK WORKS, DESIGNS, AND COLLECTIONS
OF INFORMATION".

 (3) The item relating to section 1400 in the table of sections at the
beginning of chapter 87 of title 28, United States Code, is amended to read
as follows:

"1400. Patents and copyrights, mask works, designs, and collections of
information.".

 (d) Court of Federal Claims Jurisdiction.--Section 1498(e) of title 28,
United States Code, is amended by inserting "and to protections afforded
collections of information under chapter 14 of title 17" after "chapter 9 of
title 17".

SEC. 4. EFFECTIVE DATE.

 (a) In General.--This title and the amendments made by this title shall
take effect on the date of the enactment of this Act, and shall apply to
acts of extraction and making available of information that are committed on
or after that date.

 (b) Prior Acts Not Affected.--No person shall be liable under chapter 14
of title 17, United States Code, as added by section 2 of this Act, for
making available information lawfully extracted from a collection of
information prior to the effective date of this Act, by that person or by
that person's predecessor in interest