Bill Text: OR HB3315 | 2011 | Regular Session | Introduced


Bill Title: Relating to the use of misappropriated information technology.

Spectrum: Committee Bill

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3315 Detail]

Download: Oregon-2011-HB3315-Introduced.html


     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3377

                         House Bill 3315

Sponsored by COMMITTEE ON BUSINESS AND LABOR

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Prohibits sale of product produced using stolen or
misappropriated information technology. Provides cause of action
for damages and injunctive relief. Allows award of attorney fees
and costs to prevailing party.

                        A BILL FOR AN ACT
Relating to the use of misappropriated information technology.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) As used in sections 1 to 3 of this 2011
Act:
  (a) 'Information technology' means hardware and software for
data processing, office automation and telecommunications.
  (b) 'Person' means a natural person, corporation, business
trust, estate, trust, partnership, association, joint venture,
government, governmental or political subdivision or agency or
any other legal or commercial entity.
  (c) 'Produced' means manufactured, assembled, developed,
designed, distributed, supplied or marketed.
  (d) 'Producer' means any person that produces a product using
information technology.
  (e) 'Product' means any goods, articles, merchandise, ware or
other property that has been produced using information
technology and that is sold or offered for sale in this state.
  (f) 'Retail price' means the average price that would have been
charged in this state for a product had the product been produced
using information technology that was not stolen or
misappropriated.
  (g) 'Retail value' means the cost of information technology had
it not been stolen or misappropriated multiplied by the number of
products sold, offered for sale, leased, bartered, traded or
exchanged in this state that were produced using comparable
stolen or misappropriated information technology.
  (h) 'Stolen or misappropriated' means acquired, appropriated or
used in violation of state or federal law. + }
  SECTION 2.  { + (1) A person may not sell, offer for sale,
lease, barter, trade or exchange a product that has been produced
by the person using stolen or misappropriated information
technology if another person is selling, offering for sale,
leasing, bartering, trading or exchanging a similar product in
this state that was produced without using stolen or
misappropriated information technology. The prohibition in this
subsection applies regardless of whether the product is sold,
offered for sale, leased, bartered, traded or exchanged
individually or as a component of another product.
  (2) The prohibition in subsection (1) of this section does not
apply to:
  (a) Products that have been copyrighted under the Copyright Act
of 1976, 17 U.S.C. 101 et seq.;
  (b) Claims that are based upon an infringement of a patent or
trade secret under ORS 646.461 to 646.475 or the United States
Patent Act, 35 U.S.C. 1 et seq.;
  (c) Claims based on violation of the terms of a license that
allows licensed users to modify and redistribute source code
associated with information technology free of charge;
  (d) Products produced using stolen or misappropriated
information technology if the retail value is less than $10,000;
and
  (e) Products produced using stolen or misappropriated
information technology if the stolen or misappropriated
information technology is a de minimis part of the product and
the stolen or misappropriated information technology was not
available for purchase, lease, barter, trade or exchange on an
individual basis at the time the information technology was
used. + }
  SECTION 3.  { + (1) Subject to subsection (3) of this section,
a person injured by a violation of section 2 of this 2011 Act may
do all of the following:
  (a) Sue for the injury and may recover the greater of:
  (A) Actual damages; or
  (B) For each product sold, offered for sale, leased, bartered,
traded or exchanged in violation of section 2 of this 2011 Act,
an amount not exceeding 20 percent of the retail price of the
product.
  (b) Recover three times the damages claimed under paragraph (a)
of this subsection if the defendant's sale, offer, lease, barter,
trade or exchange of a product in violation of section 2 of this
2011 Act was willful.
  (c) File an action for injunctive relief to restrain a person
from producing or using a product that is sold, offered for sale,
leased, bartered, traded or exchanged in violation of section 2
of this 2011 Act. For purposes of this paragraph, irreparable
harm is presumed if the person claiming to have been harmed
establishes by a preponderance of the evidence that products
sold, offered for sale, leased, bartered, traded or exchanged in
violation of section 2 of this 2011 Act have been produced or
used in this state.
  (2) A person is deemed to have been injured under this section
if the person establishes by a preponderance of the evidence
that:
  (a) The person produced products comparable to products sold,
offered for sale, leased, bartered, traded or exchanged in
violation of section 2 of this 2011 Act; and
  (b) The products produced by the person were not produced using
stolen or misappropriated information technology.
  (3)(a) An action or suit may not be commenced under this
section unless the defendant has received, not later than 90 days
before commencement of the action or suit, a written notice
stating:
  (A) That the defendant has sold, offered for sale, leased,
bartered, traded or exchanged a product in violation of section 2
of this 2011 Act and requesting that the defendant cease selling,
offering, leasing, bartering, trading or exchanging the product;
or
  (B) That the defendant has produced or used a product that was
sold, offered for sale, leased, bartered, traded or exchanged in
violation of section 2 of this 2011 Act and requesting that the
defendant cease producing or using the product.
  (b) The notice shall identify the product, the stolen or
misappropriated information technology and the owner of the
stolen or misappropriated information technology.
  (4) An action or suit may not be commenced under this section
against the following:
  (a) A consumer who is a natural person who purchased, acquired
or used the product for personal, family or household purposes.
  (b) A person conducting a business with annual revenues not
exceeding $50 million.
  (c) A person that purchased, acquired or used the product in
good faith reliance on written assurances that the product was
produced without using stolen or misappropriated information
technology.
  (d) A person that has implemented commercially reasonable
practices and procedures to prevent the purchase, acquisition or
use of products sold, offered for sale, leased, bartered, traded
or exchanged in violation of section 2 of this 2011 Act and that
has acted in good faith to ensure compliance with the practices
and procedures. A person satisfies the requirements of this
paragraph by demonstrating that a contract the person has entered
into with a producer of a product sold, offered for sale, leased,
bartered, traded or exchanged in violation of section 2 of this
2011 Act contains provisions that prohibit the use of stolen or
misappropriated information technology and are subject to the
right of audit, and that the person has established a practice of
ensuring compliance with the contractual provisions by conducting
audits and other appropriate means.
  (5) The court may award reasonable attorney fees, expert
witness fees and costs, including investigative costs, to the
prevailing party in an action or suit under this section.
  (6) In a proceeding under this section, the court shall allow a
request for inspection made under the Oregon Rules of Civil
Procedure to enter upon the defendant's premises for the purpose
of inspecting and copying any products, information technology,
records, files or other evidence within the scope of ORCP 36
B. + }
  SECTION 4.  { + Sections 1 to 3 of this 2011 Act apply to
products sold, offered for sale, leased, bartered, traded or
exchanged on or after the effective date of this 2011 Act. + }
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