Bill Text: NY S00618 | 2017-2018 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Requires manufacturers of digital electronic parts to offer for sale documentation, diagnostic and repair information in the same manner as such manufacturer provides such diagnostic and repair information to such manufacturer's repair provider; section does not apply to motor vehicles.
Spectrum: Slight Partisan Bill (Democrat 9-5)
Status: (Introduced - Dead) 2018-01-31 - PRINT NUMBER 618C [S00618 Detail]
Download: New_York-2017-S00618-Introduced.html
Bill Title: Requires manufacturers of digital electronic parts to offer for sale documentation, diagnostic and repair information in the same manner as such manufacturer provides such diagnostic and repair information to such manufacturer's repair provider; section does not apply to motor vehicles.
Spectrum: Slight Partisan Bill (Democrat 9-5)
Status: (Introduced - Dead) 2018-01-31 - PRINT NUMBER 618C [S00618 Detail]
Download: New_York-2017-S00618-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 618 2017-2018 Regular Sessions IN SENATE January 4, 2017 ___________ Introduced by Sens. BOYLE, ADDABBO, AKSHAR, AVELLA, CARLUCCI, CROCI, DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection AN ACT to amend the general business law, in relation to the sale of digital electronic equipment diagnostic and repair information 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 "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) "Original equipment manufacturer" or "OEM" means any person or 9 business who, in the ordinary course of its business, is engaged in the 10 business of selling or leasing new digital electronic equipment or parts 11 of equipment to any person or business and is engaged in the diagnosis, 12 service, maintenance or repair of digital electronic equipment or parts 13 of such equipment. 14 (b) "Authorized repair provider" means a person or business that has 15 an arrangement for a definite or indefinite period in which an OEM 16 grants to a separate business organization or individual license to use 17 a trade name, service mark or related characteristic for the purposes of 18 offering repair services under the name of the OEM. 19 (c) "Independent repair provider" means a person or business operating 20 in the state of New York that is not affiliated with an OEM or an OEM's 21 authorized repair provider, which is engaged in the diagnosis, service, 22 maintenance or repair of equipment; provided, however, that, for the 23 purposes of this section, an OEM shall be considered an independent EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05441-01-7S. 618 2 1 repair provider for the purposes of those instances when such OEM 2 engages in the diagnosis, service, maintenance or repair of digital 3 equipment that is not affiliated with the OEM. 4 (d) "Owner" means a person or business who owns or leases a digital 5 electronic product purchased or used in the state of New York. 6 (e) "Documentation" means any manuals, diagrams, reporting output, or 7 service code descriptions provided to the authorized repair provider for 8 the purposes of effecting repair. 9 (f) "Digital electronic equipment" or "equipment" means a part or 10 equipment originally manufactured for distribution and sale in the 11 United States. 12 (g) "Embedded software" means any programmable instructions provided 13 on firmware delivered with the equipment or part for the purposes of 14 equipment operation, including all relevant patches and fixes made by 15 the manufacturer for this purpose, including, but not limited to syno- 16 nyms "basic internal operating system", "internal operating system", 17 "machine code", "assembly code", "root code", and "microcode". 18 (h) "Remote diagnostics" means any remote data transfer function 19 between equipment and the provider of repair services including for 20 purposes of remote diagnostics, setting controls, or location identifi- 21 cation. 22 (i) "Service parts" or "parts" means any replacement parts, either new 23 or used, made available by the OEM to the authorized repair provider for 24 the purposes of effecting repair. 25 (j) "Fair and reasonable terms" means an equitable price in light of 26 relevant factors, including, but not limited to, the following: 27 (i) the net cost to the authorized repair provider for similar infor- 28 mation obtained from an OEM, less any discounts, rebates, or other 29 incentive programs; 30 (ii) the cost to the OEM for preparing and distributing the informa- 31 tion, excluding any research and development costs incurred in designing 32 and implementing, upgrading or altering the product, but including amor- 33 tized capital costs for the preparation and distribution of the informa- 34 tion; 35 (iii) the price charged by other OEMs for similar information; 36 (iv) the price charged by OEMs for similar information prior to the 37 launch of OEM web sites; 38 (v) the ability of aftermarket technicians or shops to afford the 39 information; 40 (vi) the means by which the information is distributed; 41 (vii) the extent to which the information is used, which includes the 42 number of users, and frequency, duration, and volume of use; and 43 (viii) inflation. 44 (k) "Trade secret" means anything tangible or intangible or electron- 45 ically stored or kept which constitutes, represents, evidences or 46 records intellectual property including secret or confidentially held 47 designs, processes, procedures, formulas, inventions or improvements, or 48 secret or confidentially held scientific, technical, merchandising, 49 production, financial, business or management information, or anything 50 within the definition of paragraph three of section 1839 of title eigh- 51 teen of the United States Code. 52 (l) "Motor vehicle" means any vehicle that is designed for transport- 53 ing persons or property on a street or highway and that is certified by 54 the manufacturer under all applicable federal safety and emissions stan- 55 dards and requirements for distribution and sale in the United States,S. 618 3 1 but excluding (i) a motorcycle; or (ii) a recreational vehicle or an 2 auto home equipped for habitation. 3 (m) "Motor vehicle manufacturer" means any person or business engaged 4 in the business of manufacturing or assembling new motor vehicles. 5 (n) "Motor vehicle dealer" means any person or business who, in the 6 ordinary course of its business, is engaged in the business of selling 7 or leasing new motor vehicles to a person or business pursuant to a 8 franchise agreement and who has obtained a license, as required under 9 applicable law, and is engaged in the diagnosis, service, maintenance or 10 repair of motor vehicles or motor vehicle engines pursuant to said fran- 11 chise agreement. 12 2. (a) For equipment and parts sold or used in this state, the OEMs of 13 such equipment and parts shall (i) make available to independent repair 14 providers or owners of products manufactured by such OEM diagnostic and 15 repair information, including repair technical updates, updates and 16 corrections to embedded software for no charge or in the same manner 17 such OEM makes available to its authorized repair provider; and 18 (ii) make available for purchase by the equipment owner, his or her 19 authorized agent or independent repair provider, parts, inclusive of any 20 updates to the embedded software of the parts, upon fair and reasonable 21 terms. Nothing in this subdivision shall require the OEM to sell parts 22 if the parts are no longer available to the OEM or the authorized repair 23 provider of the OEM. 24 (b) Any OEM that sells any diagnostic, service, or repair information 25 to any independent repair provider or to any owner in a format that is 26 standardized with other OEMs, and on terms and conditions more favorable 27 than the manner and the terms and conditions pursuant to which the 28 authorized repair provider obtains the same diagnostic, service or 29 repair information, shall be prohibited from requiring any authorized 30 repair provider to continue purchasing diagnostic, service, or repair 31 information in a proprietary format, unless such proprietary format 32 includes diagnostic, service, or repair operations information or func- 33 tionality that is not available in such standardized format. 34 (c) Each OEM of equipment sold or used in the state of New York shall 35 make available for purchase by owners and independent repair facilities 36 all diagnostic repair tools incorporating the same diagnostic, repair 37 and remote communications capabilities that such OEM makes available to 38 its own repair or engineering staff or any authorized repair provider. 39 Each OEM shall offer such tools for sale to owners and to independent 40 repair facilities upon fair and reasonable terms. 41 Each OEM that provides diagnostic repair information to aftermarket 42 tool, diagnostics, or third party service information publications and 43 systems shall have fully satisfied its obligations under this section 44 and thereafter not be responsible for the content and functionality of 45 aftermarket diagnostic tools or service information systems. 46 (d) OEM equipment or parts sold or used in the state of New York for 47 the purpose of providing security-related functions may not exclude 48 diagnostic, service and repair information necessary to reset a securi- 49 ty-related electronic function from information provided to owners and 50 independent repair facilities. If excluded under this paragraph, the 51 information necessary to reset an immobilizer system or security-related 52 electronic module shall be obtained by owners and independent repair 53 facilities through the appropriate secure data release systems. 54 3. Nothing in this section shall be construed to require an OEM to 55 divulge a trade secret.S. 618 4 1 4. Notwithstanding any law, rule or regulation to the contrary, no 2 provision in this section shall be read, interpreted or construed to 3 abrogate, interfere with, contradict or alter the terms of any agreement 4 executed and in force between an authorized repair provider and an OEM 5 including, but not limited to, the performance or provision of warranty 6 or recall repair work by an authorized repair provider on behalf of an 7 OEM pursuant to such authorized repair agreement; provided, however, 8 that any provision in such an authorized repair agreement that purports 9 to waive, avoid, restrict or limit an OEM's compliance with this section 10 shall be void and unenforceable. 11 5. Nothing in this section shall be construed to require OEMs or 12 authorized repair providers to provide an owner or independent repair 13 provider access to non-diagnostic and repair information provided by an 14 OEM to an authorized repair provider pursuant to the terms of an author- 15 izing agreement. 16 6. Nothing in this section shall apply to motor vehicle manufacturers, 17 any product or service of a motor vehicle manufacturer or motor vehicle 18 dealers as defined in this section. 19 7. Any independent repair provider that purchases or acquires embedded 20 software or service parts shall, prior to performing any services on 21 digital electronic equipment, notify the owner of such equipment in 22 writing that: 23 (a) consumers should review the terms and conditions of the warranty 24 for such digital electronic equipment as repairs not performed by an 25 authorized repair provider could affect the terms and conditions of the 26 warranty; 27 (b) warrantors cannot require that only branded parts be used with the 28 product in order to retain the warranty; 29 (c) warrantors shall demonstrate that a defect or damage was caused by 30 independent repair to affect the warranty; 31 (d) warranties are governed by the federal Magnuson-Moss Warranty Act; 32 and 33 (e) such independent repair provider is not an authorized repair 34 provider for such digital electronic equipment. 35 8. The consumer protection division shall develop, establish and 36 implement a public outreach program directed at independent repair 37 providers, consumers and digital electronic original equipment manufac- 38 turers to inform them of their rights and responsibilities pursuant to 39 this section. Such public outreach shall include brochures, consumer 40 guides, posters or any combination thereof and made available to consum- 41 ers and other stakeholders by any means deemed appropriate by such divi- 42 sion and may include internet, radio, and print advertising. The public 43 outreach may also identify and recruit individuals or trade organiza- 44 tions to assist in distributing this information and materials. The 45 public outreach shall begin no later than the thirtieth day after the 46 effective date of this section. 47 9. (a) Whenever the attorney general shall believe from evidence 48 satisfactory to him that any person, firm, corporation or association or 49 agent or employee thereof has engaged in or is about to engage in any of 50 the acts or practices in violation of this section he may bring an 51 action in the name and on behalf of the people of the state of New York 52 to enjoin such unlawful acts or practices and to obtain restitution of 53 any moneys or property obtained directly or indirectly by any such acts 54 or practices in violation of this section. In such action preliminary 55 relief may be granted under article sixty-three of the civil practice 56 law and rules.S. 618 5 1 (b) Before any violation of this section is sought to be enjoined, the 2 attorney general shall be required to give the person against whom such 3 proceeding is contemplated notice by certified mail and an opportunity 4 to show in writing within five business days after receipt of notice why 5 proceedings should not be instituted against him, unless the attorney 6 general shall find, in any case in which he seeks preliminary relief, 7 that to give such notice and opportunity is not in the public interest. 8 (c) In connection with any proposed proceeding under this section, the 9 attorney general is authorized to take proof and make a determination of 10 the relevant facts, and to issue subpoenas in accordance with the civil 11 practice law and rules. 12 (d) This subdivision shall apply to all acts or practices declared to 13 be in violation of this section, whether or not subject to any other law 14 of this state, and shall not supersede, amend or repeal any other law of 15 this state under which the attorney general is authorized to take any 16 action or conduct any inquiry. 17 (e) Any person, firm, corporation or association or agent or employee 18 thereof who engages in any of the acts or practices to be in violation 19 of this section shall be liable to a civil penalty of not more than five 20 hundred dollars for each violation, which shall accrue to the state of 21 New York and may be recovered in a civil action brought by the attorney 22 general. 23 (f) Except in the instance of a dispute arising between an original 24 equipment manufacturer and its authorized repair provider related to 25 either party's compliance with an existing authorized repair agreement, 26 an authorized repair provider shall have all the rights and remedies 27 provided in this section. 28 § 3. This act shall take effect on the sixtieth day after it shall 29 have become a law; provided, however, that subdivision 7 of section 30 399-nn of the general business law, as added by section two of this act 31 shall take effect on the ninetieth day after it shall have become a law.
