Bill Text: NY A07416 | 2019-2020 | General Assembly | Amended

Bill Title: Relates to the sale of digital electronic equipment and requires original equipment manufacturers to provide diagnostic and repair information.

Spectrum: Moderate Partisan Bill (Democrat 31-6)

Status: (Introduced - Dead) 2020-01-08 - referred to consumer affairs and protection [A07416 Detail]

Download: New_York-2019-A07416-Amended.html

                STATE OF NEW YORK


                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                       May 1, 2019

        Introduced  by  M.  of  A.  LUPARDO, LENTOL, SCHIMMINGER, D'URSO, ORTIZ,
          GOTTFRIED,  ASHBY  -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, COOK,
          ENGLEBRIGHT, GIGLIO, SIMOTAS -- read once and referred to the  Commit-
          tee  on  Consumer Affairs and Protection -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-

        AN  ACT  to  amend  the general business law, in relation to the sale of
          digital electronic  equipment  and  providing  diagnostic  and  repair

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "digital fair repair act".
     3    §  2. The general business law is amended by adding a new section 399-
     4  nn to read as follows:
     5    § 399-nn. Sale of digital electronic equipment; diagnostic and  repair
     6  information.    1.  Definitions.  For  the purposes of this section, the
     7  following terms shall have the following meanings:
     8    (a) "Authorized repair provider" means an individual or  business  who
     9  is  unaffiliated  with an original equipment manufacturer and who has an
    10  arrangement with the original equipment manufacturer, for a definite  or
    11  indefinite  period,  under  which  the  original  equipment manufacturer
    12  grants to the individual or business a license  to  use  a  trade  name,
    13  service mark, or other proprietary identifier for the purposes of offer-
    14  ing  the  services of diagnosis, maintenance, or repair of digital elec-
    15  tronic equipment under the name of the original equipment  manufacturer,
    16  or  other  arrangement with the original equipment manufacturer to offer
    17  such services on behalf  of  the  original  equipment  manufacturer.  An
    18  original  equipment  manufacturer  who offers the services of diagnosis,
    19  maintenance, or repair of its own digital electronic equipment, and  who
    20  does not have an arrangement described in this subdivision with an unaf-
    21  filiated  individual  or  business,  shall  be  considered an authorized
    22  repair provider with respect to such equipment.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 7416--A                          2

     1    (b) "Digital electronic equipment" or "equipment"  means  any  product
     2  that  depends for its functioning, in whole or in part, on digital elec-
     3  tronics embedded in or attached to the product.
     4    (c)  "Documentation"  means  any  manual,  diagram,  reporting output,
     5  service code description, schematic diagram, or similar kinds of  infor-
     6  mation  provided  to  an  authorized repair provider for purposes of its
     7  effecting the services of diagnosis, maintenance, or repair  of  digital
     8  electronic equipment.
     9    (d)  "Embedded  software" means any programmable instructions provided
    10  on firmware delivered with digital electronic equipment, or with a  part
    11  for  such  equipment, for purposes of equipment operation, including all
    12  relevant patches and fixes made by the manufacturer of such equipment or
    13  part for these purposes.
    14    (e) "Fair and reasonable terms"  for  obtaining  a  part  or  tool  or
    15  documentation  means at costs and terms, including convenience of deliv-
    16  ery, and including rights of use, equivalent to what is offered  by  the
    17  original  equipment manufacturer to an authorized repair provider, using
    18  the net costs that would be incurred by an authorized repair provider in
    19  obtaining an equivalent part or tool or documentation from the  original
    20  equipment  manufacturer, accounting for any discounts, rebates, or other
    21  incentive programs in arriving at the actual net costs.  For  documenta-
    22  tion,  including any relevant updates, "fair and reasonable terms" means
    23  at no charge, except that, when the documentation is requested in  phys-
    24  ical  printed  form,  a charge may be included for the reasonable actual
    25  costs of preparing and sending the copy.
    26    (f) "Firmware"  means  a  software  program  or  set  of  instructions
    27  programmed on digital electronic equipment, or on a part for such equip-
    28  ment,  to allow the equipment or part to communicate with other computer
    29  hardware.
    30    (g) "Independent repair provider"  means  an  individual  or  business
    31  operating  in  this state, who does not have an arrangement described in
    32  paragraph (a) of this subdivision with an original equipment manufactur-
    33  er, and who is not affiliated with any individual or  business  who  has
    34  such  an  arrangement,  and who is engaged in the services of diagnosis,
    35  maintenance, or repair of digital electronic equipment, except  that  an
    36  original equipment manufacturer or, with respect to that original equip-
    37  ment manufacturer, an individual or business who has such an arrangement
    38  with  that original equipment manufacturer, or who is affiliated with an
    39  individual or business who has such an arrangement  with  that  original
    40  equipment  manufacturer,  shall  be  considered  an  independent  repair
    41  provider for purposes of those instances in  which  it  engages  in  the
    42  services  of diagnosis, maintenance, or repair of the digital electronic
    43  equipment that is not manufactured by or sold under  the  name  of  that
    44  original equipment manufacturer.
    45    (h) "Manufacturer of motor vehicle equipment" means a business engaged
    46  in  the  business of manufacturing or supplying components that are used
    47  in the manufacture, maintenance, or repair of a motor vehicle.
    48    (i)  "Medical  device"  means  an  instrument,  apparatus,  implement,
    49  machine,  contrivance,  implant,  or  other  similar or related article,
    50  including a component part, or accessory,  as  defined  in  the  federal
    51  Food,  Drug  and  Cosmetic  Act, 21 USC, Section 321 (h) as amended from
    52  time to time, which is intended for use in the diagnosis of  disease  or
    53  other  conditions,  or in the cure, mitigation, treatment, or prevention
    54  of disease, in man or other animals.
    55    (j) "Motor vehicle" means a vehicle that is designed for  transporting
    56  persons  or  property  on  a  street  or highway and is certified by the

        A. 7416--A                          3

     1  manufacturer under all applicable federal safety and emissions standards
     2  and requirements for distribution and sale in the United  States.  Motor
     3  vehicle  does not include: (1) a motorcycle; or (2) a recreational vehi-
     4  cle or an auto home equipped for habitation.
     5    (k) "Motor vehicle dealer" means an individual or business who, in the
     6  ordinary  course  of  business, is engaged in the business of selling or
     7  leasing new motor vehicles to an individual or business  pursuant  to  a
     8  franchise  agreement, has obtained a license under the vehicle and traf-
     9  fic law, and is engaged in the services of  diagnosis,  maintenance,  or
    10  repair of motor vehicles or motor vehicle engines pursuant to such fran-
    11  chise agreement.
    12    (l) "Motor vehicle manufacturer" means a business engaged in the manu-
    13  facturing or assembling of new motor vehicles.
    14    (m)  "Original equipment manufacturer" means a business engaged in the
    15  business of selling or leasing new digital electronic equipment manufac-
    16  tured by or on behalf of itself, to any individual or business.
    17    (n) "Owner" means an individual or business who owns or leases digital
    18  electronic equipment purchased or used in this state.
    19    (o) "Part" means any replacement part, either new or used, made avail-
    20  able by an original equipment manufacturer for purposes of effecting the
    21  services of maintenance or repair of digital electronic equipment  manu-
    22  factured or sold by the original equipment manufacturer.
    23    2.  Requirements.  (a) For digital electronic equipment, and parts for
    24  such equipment, sold or  used  in  this  state,  an  original  equipment
    25  manufacturer  shall  make  available, for purposes of diagnosis, mainte-
    26  nance, or repair, to any independent repair provider, or to the owner of
    27  digital electronic equipment manufactured by or on behalf  of,  or  sold
    28  by,  the  original equipment manufacturer, on fair and reasonable terms,
    29  documentation, parts, and tools, inclusive of any updates to information
    30  or embedded software. Nothing  in  this  section  requires  an  original
    31  equipment manufacturer to make available a part if the part is no longer
    32  available to the original equipment manufacturer.
    33    (b)  For  equipment that contains an electronic security lock or other
    34  security-related function, the  original  equipment  manufacturer  shall
    35  make available to the owner and to independent repair providers, on fair
    36  and reasonable terms, any special documentation, tools, and parts needed
    37  to  reset the lock or function when disabled in the course of diagnosis,
    38  maintenance, or repair of the equipment.  Such documentation, tools, and
    39  parts may be made available through appropriate secure release systems.
    40    3. Limitations. (a) Nothing in this  section  shall  be  construed  to
    41  require  an original equipment manufacturer to divulge a trade secret to
    42  an owner or an independent service provider.
    43    (b) No provision in this section shall be construed to alter the terms
    44  of any arrangement described in paragraph (a) of subdivision one of this
    45  section in force between an authorized repair provider and  an  original
    46  equipment  manufacturer,  including, but not limited to, the performance
    47  or provision of warranty or recall repair work by an  authorized  repair
    48  provider  on  behalf  of  an original equipment manufacturer pursuant to
    49  such arrangement, except that any provision in such terms that  purports
    50  to  waive,  avoid, restrict, or limit the original equipment manufactur-
    51  er's obligations to comply with this section shall  be  void  and  unen-
    52  forceable.
    53    (c)  Nothing in this section shall be construed to require an original
    54  equipment manufacturer or an authorized repair provider to provide to an
    55  owner or independent repair provider access to information,  other  than
    56  documentation,  that  is provided by the original equipment manufacturer

        A. 7416--A                          4

     1  to an authorized repair provider pursuant to the terms of an arrangement
     2  described in paragraph (a) of subdivision one of this section.
     3    4. Exclusions. Nothing in this section shall apply to:
     4    (a) a motor vehicle manufacturer, manufacturer of motor vehicle equip-
     5  ment, or motor vehicle dealer acting in such capacity, or to any product
     6  or  service of a motor vehicle manufacturer, manufacturer of motor vehi-
     7  cle equipment, or motor vehicle dealer acting in such capacity.
     8    (b) a medical device, as defined in this section, or a  digital  elec-
     9  tronic product or embedded software found in a medical setting including
    10  diagnostic,  monitoring,  or control equipment or any product or service
    11  that they offer.
    12    5. Enforcement by attorney general. (a) Whenever the attorney  general
    13  shall  believe from evidence satisfactory to him or her that any person,
    14  firm, corporation or  association  or  agent  or  employee  thereof  has
    15  engaged  in  or  is  about  to engage in any of the acts or practices in
    16  violation of this section he or she may bring a proceeding in  the  name
    17  and  on  behalf  of  the  people of the state of New York to enjoin such
    18  unlawful acts or practices and to obtain restitution of  any  moneys  or
    19  property  obtained  directly or indirectly by any such acts or practices
    20  in violation of this section. In such proceeding preliminary relief  may
    21  be  granted  under  article  sixty-three  of  the civil practice law and
    22  rules.
    23    (b) Except as provided herein, before any violation of this section is
    24  sought to be enjoined,  the  attorney  general  shall  give  the  person
    25  against  whom  such proceeding is contemplated notice and an opportunity
    26  to show in writing, within five business days after the delivery of such
    27  notice, why a proceeding should not be instituted against  such  person.
    28  Such notice by the attorney general shall be delivered by certified mail
    29  and  by first-class mail with proof of mailing. In a proceeding in which
    30  the attorney general seeks preliminary relief, such notice shall not  be
    31  required  upon a finding by the attorney general that such notice is not
    32  in the public interest.
    33    (c) In connection with any proposed proceeding under this section, the
    34  attorney general is authorized to take proof and make a determination of
    35  the relevant facts, and to issue subpoenas in accordance with the  civil
    36  practice law and rules.
    37    (d)  This subdivision shall apply to all acts or practices declared to
    38  be in violation of this section, whether or not subject to any other law
    39  of this state, and shall not supersede, amend or repeal any other law of
    40  this state under which the attorney general is authorized  to  take  any
    41  action or conduct any inquiry.
    42    (e)  Any person, firm, corporation or association or agent or employee
    43  thereof who engages in any of the acts or practices in violation of this
    44  section shall be liable to a civil penalty of not more than five hundred
    45  dollars for each violation, which shall accrue to the state of New  York
    46  and may be recovered in a civil action brought by the attorney general.
    47    (f)  Except  in  the instance of a dispute arising between an original
    48  equipment manufacturer and its authorized  repair  provider  related  to
    49  either  party's compliance with an existing authorized repair agreement,
    50  an authorized repair provider shall have all  the  rights  and  remedies
    51  provided in this section.
    52    § 3. This act shall take effect on the one hundred twentieth day after
    53  it  shall  have  become  a law and shall apply with respect to equipment
    54  sold or in use on or after such date.