Bill Text: NY S03998 | 2015-2016 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Requires manufacturers of digital electronic parts to offer for sale diagnostic and repair information in the same manner as such manufacturer provides such diagnostic and repair information to such manufacturer's repair channel; section does not apply to motor vehicles.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2016-06-06 - COMMITTEE DISCHARGED AND COMMITTED TO RULES [S03998 Detail]

Download: New_York-2015-S03998-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3998
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   February 25, 2015
                                      ___________
       Introduced  by  Sen.  BOYLE  -- 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
         certain diagnostic and repair information systems
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The general business law is amended by adding a new section
    2  399-nn to read as follows:
    3    S 399-NN. SALE OF DIAGNOSTIC AND REPAIR INFORMATION SYSTEMS. 1.  DEFI-
    4  NITIONS. AS USED IN THIS SECTION, THE FOLLOWING  TERMS  SHALL  HAVE  THE
    5  SIGNIFICANCE  HEREIN  DEFINED UNLESS ANOTHER MEANING IS CLEARLY APPARENT
    6  IN LANGUAGE OR CONTEXT:
    7    (A) "ORIGINAL EQUIPMENT MANUFACTURER" MEANS  ANY  PERSON  OR  BUSINESS
    8  WHO,  IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS
    9  OF SELLING OR LEASING  NEW  DIGITAL  ELECTRONIC  PARTS  OF  MACHINES  TO
   10  CONSUMERS  OR  OTHER END USERS AND IS ENGAGED IN THE DIAGNOSIS, SERVICE,
   11  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT TO SUCH  PARTS  OR
   12  MACHINES.
   13    (B)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
   14  ON FIRMWARE DELIVERED WITH THE MACHINE  OR  PART  FOR  THE  PURPOSES  OF
   15  MACHINE  OPERATION, INCLUDING ALL RELEVANT PATCHES AND FIXES MADE BY THE
   16  MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT  LIMITED  TO  SYNONYMS
   17  "BASIC INTERNAL OPERATING SYSTEM", "INTERNAL OPERATING SYSTEM", "MACHINE
   18  CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
   19    (C)  "AUTHORIZED REPAIR PROVIDER" MEANS AN ORAL OR WRITTEN ARRANGEMENT
   20  FOR A DEFINITE OR INDEFINITE PERIOD IN WHICH A MANUFACTURER OR DISTRIBU-
   21  TOR GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE  TO
   22  USE  A  TRADE  NAME,  SERVICE  MARK  OR  RELATED  CHARACTERISTIC FOR THE
   23  PURPOSES OF OFFERING REPAIR SERVICES UNDER THE NAME OF THE MANUFACTURER.
   24    (D) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN  LIGHT  OF
   25  RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07386-03-5
       S. 3998                             2
    1    (I)  THE  NET  COST TO THE AUTHORIZED REPAIR ORGANIZATIONS FOR SIMILAR
    2  INFORMATION OBTAINED FROM MANUFACTURERS, LESS ANY DISCOUNTS, REBATES, OR
    3  OTHER INCENTIVE PROGRAMS;
    4    (II)  THE  COST TO THE MANUFACTURER FOR PREPARING AND DISTRIBUTING THE
    5  INFORMATION, EXCLUDING ANY RESEARCH AND DEVELOPMENT  COSTS  INCURRED  IN
    6  DESIGNING  AND  IMPLEMENTING,  UPGRADING  OR  ALTERING  THE PRODUCT, BUT
    7  INCLUDING AMORTIZED CAPITAL COSTS FOR THE PREPARATION  AND  DISTRIBUTION
    8  OF THE INFORMATION;
    9    (III)  THE  PRICE  CHARGED BY OTHER MANUFACTURERS FOR SIMILAR INFORMA-
   10  TION;
   11    (IV) THE PRICE CHARGED BY MANUFACTURERS FOR SIMILAR INFORMATION  PRIOR
   12  TO THE LAUNCH OF MANUFACTURER WEB SITES;
   13    (V)  THE  ABILITY  OF  AFTERMARKET  TECHNICIANS OR SHOPS TO AFFORD THE
   14  INFORMATION;
   15    (VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
   16    (VII) THE EXTENT TO WHICH THE INFORMATION IS USED, WHICH INCLUDES  THE
   17  NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
   18    (VIII) INFLATION.
   19    (E)  "DATA SECURITY FEATURE" MEANS ANY FEATURE OF AN ELECTRONIC DEVICE
   20  DESIGNED FOR THE SOLE PURPOSE OF PREVENTING THE  USE  OF  AN  ELECTRONIC
   21  DEVICE  IN WHICH IT IS INSTALLED FROM STARTING WITHOUT THE CORRECT ACTI-
   22  VATION OR AUTHORIZATION CODE.
   23    (F) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT,  OR
   24  SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
   25  THE PURPOSES OF EFFECTING REPAIR.
   26    (G)  "SERVICE  PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW OR USED,
   27  MADE AVAILABLE BY THE MANUFACTURER TO THE AUTHORIZED REPAIR PROVIDER FOR
   28  THE PURPOSES OF EFFECTING REPAIR.
   29    (H) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
   30  IN THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH A  MANUFACTURER  OR
   31  MANUFACTURER'S AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAG-
   32  NOSIS,  SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT;
   33  PROVIDED, HOWEVER, THAT, FOR THE PURPOSES OF THIS SECTION, A MANUFACTUR-
   34  ER SHALL BE CONSIDERED AN INDEPENDENT REPAIR PROVIDER FOR  THE  PURPOSES
   35  OF  THOSE  INSTANCES  WHEN  SUCH  MANUFACTURER ENGAGES IN THE DIAGNOSIS,
   36  SERVICE, MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT THAT  ARE
   37  NOT AFFILIATED WITH THE MANUFACTURER.
   38    (I)  "DIGITAL ELECTRONIC EQUIPMENT" MEANS A PART OR MACHINE ORIGINALLY
   39  MANUFACTURED FOR DISTRIBUTION AND SALE IN THE UNITED STATES.
   40    (J) "OWNER" MEANS A PERSON OR BUSINESS WHO OWNS OR  LEASES  A  DIGITAL
   41  ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
   42    (K)  "REMOTE  DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA TRANSFER FUNCTION
   43  BETWEEN A DIGITAL ELECTRONIC MACHINE AND THE PROVIDER OF REPAIR SERVICES
   44  INCLUDING FOR PURPOSES  OF  REMOTE  DIAGNOSTICS,  SETTING  CONTROLS,  OR
   45  LOCATION IDENTIFICATION.
   46    (L)  "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR ELECTRON-
   47  ICALLY STORED  OR  KEPT  WHICH  CONSTITUTES,  REPRESENTS,  EVIDENCES  OR
   48  RECORDS  INTELLECTUAL  PROPERTY  INCLUDING SECRET OR CONFIDENTIALLY HELD
   49  DESIGNS, PROCESSES, PROCEDURES, FORMULAS, INVENTIONS OR IMPROVEMENTS, OR
   50  SECRET OR  CONFIDENTIALLY  HELD  SCIENTIFIC,  TECHNICAL,  MERCHANDISING,
   51  PRODUCTION,  FINANCIAL,  BUSINESS OR MANAGEMENT INFORMATION, OR ANYTHING
   52  WITHIN THE DEFINITION OF PARAGRAPH THREE OF SECTION 1839 OF TITLE  EIGH-
   53  TEEN OF THE UNITED STATES CODE.
   54    (M)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
   55  ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED  BY
   56  THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
       S. 3998                             3
    1  DARDS  AND  REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
    2  BUT EXCLUDING (I) A MOTORCYCLE; (II) A  VEHICLE  WITH  A  GROSS  VEHICLE
    3  WEIGHT  OVER  14,000  POUNDS; OR (III) A RECREATIONAL VEHICLE OR AN AUTO
    4  HOME EQUIPPED FOR HABITATION.
    5    (N)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
    6  IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
    7    (O) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
    8  ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
    9  OR LEASING NEW MOTOR VEHICLES TO CONSUMERS OR OTHER END  USERS  PURSUANT
   10  TO  A  FRANCHISE  AGREEMENT  AND WHO HAS OBTAINED A LICENSE, AS REQUIRED
   11  UNDER APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE,  MAINTE-
   12  NANCE  OR  REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO
   13  SAID FRANCHISE AGREEMENT.
   14    2. (A) MANUFACTURERS OF DIGITAL ELECTRONIC PARTS AND MACHINES SOLD  OR
   15  USED  IN THE STATE OF NEW YORK SHALL: I.  MAKE AVAILABLE FOR PURCHASE BY
   16  INDEPENDENT REPAIR FACILITIES OR OTHER OWNERS OF  PRODUCTS  MANUFACTURED
   17  BY SUCH MANUFACTURER DIAGNOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR
   18  TECHNICAL  UPDATES,  UPDATES  AND  CORRECTIONS  TO FIRMWARE, AND RELATED
   19  DOCUMENTATION, IN THE SAME MANNER SUCH MANUFACTURER MAKES  AVAILABLE  TO
   20  ITS AUTHORIZED REPAIR CHANNEL. EACH MANUFACTURER SHALL PROVIDE ACCESS TO
   21  SUCH   MANUFACTURER'S  DIAGNOSTIC  AND  REPAIR  INFORMATION  SYSTEM  FOR
   22  PURCHASE BY OWNERS AND  INDEPENDENT  REPAIR  FACILITIES  UPON  FAIR  AND
   23  REASONABLE TERMS; AND
   24    II.  MAKE  AVAILABLE FOR PURCHASE BY THE PRODUCT OWNER, OR THE AUTHOR-
   25  IZED AGENT OF THE OWNER, SUCH SERVICE PARTS, INCLUSIVE OF ANY UPDATES TO
   26  THE FIRMWARE OF THE PARTS, FOR PURCHASE UPON FAIR AND REASONABLE  TERMS.
   27  NOTHING  IN  THIS  SUBDIVISION  SHALL  REQUIRE  THE  ORIGINAL  EQUIPMENT
   28  MANUFACTURER TO SELL SERVICE PARTS IF THE SERVICE PARTS  ARE  NO  LONGER
   29  AVAILABLE  TO  THE  ORIGINAL  EQUIPMENT  MANUFACTURER  OR THE AUTHORIZED
   30  REPAIR PROVIDER OF THE ORIGINAL EQUIPMENT MANUFACTURER.
   31    (B) ANY MANUFACTURER THAT SELLS ANY  DIAGNOSTIC,  SERVICE,  OR  REPAIR
   32  INFORMATION  TO  ANY  INDEPENDENT  REPAIR  PROVIDER OR OTHER THIRD PARTY
   33  PROVIDER IN A FORMAT THAT IS STANDARDIZED WITH OTHER MANUFACTURERS,  AND
   34  ON TERMS AND CONDITIONS MORE FAVORABLE THAN THE MANNER AND THE TERMS AND
   35  CONDITIONS  PURSUANT TO WHICH THE AUTHORIZED REPAIR PROVIDER OBTAINS THE
   36  SAME DIAGNOSTIC, SERVICE OR REPAIR INFORMATION, SHALL BE PROHIBITED FROM
   37  REQUIRING ANY AUTHORIZED REPAIR PROVIDER TO CONTINUE PURCHASING DIAGNOS-
   38  TIC, SERVICE, OR REPAIR INFORMATION IN A PROPRIETARY FORMAT, UNLESS SUCH
   39  PROPRIETARY FORMAT INCLUDES DIAGNOSTIC, SERVICE,  OR  REPAIR  OPERATIONS
   40  INFORMATION  OR FUNCTIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED
   41  FORMAT.
   42    (C) EACH MANUFACTURER OF DIGITAL ELECTRONIC PRODUCTS SOLD OR  USED  IN
   43  THE  STATE  OF  NEW YORK SHALL MAKE AVAILABLE FOR PURCHASE BY OWNERS AND
   44  INDEPENDENT REPAIR FACILITIES ALL DIAGNOSTIC REPAIR TOOLS  INCORPORATING
   45  THE  SAME DIAGNOSTIC, REPAIR AND REMOTE COMMUNICATIONS CAPABILITIES THAT
   46  SUCH MANUFACTURER MAKES AVAILABLE TO ITS OWN REPAIR OR ENGINEERING STAFF
   47  OR ANY AUTHORIZED REPAIR CHANNELS. EACH MANUFACTURER  SHALL  OFFER  SUCH
   48  TOOLS  FOR SALE TO OWNERS AND TO INDEPENDENT REPAIR FACILITIES UPON FAIR
   49  AND REASONABLE TERMS.
   50    EACH MANUFACTURER  THAT  PROVIDES  DIAGNOSTIC  REPAIR  INFORMATION  TO
   51  AFTERMARKET TOOL, DIAGNOSTICS, OR THIRD PARTY SERVICE INFORMATION PUBLI-
   52  CATIONS  AND  SYSTEMS  SHALL  HAVE FULLY SATISFIED ITS OBLIGATIONS UNDER
   53  THIS SECTION AND THEREAFTER NOT BE RESPONSIBLE FOR THE CONTENT AND FUNC-
   54  TIONALITY  OF  AFTERMARKET  DIAGNOSTIC  TOOLS  OR  SERVICE   INFORMATION
   55  SYSTEMS.
       S. 3998                             4
    1    (D)  MANUFACTURERS  OF  DIGITAL  ELECTRONIC EQUIPMENT OR PARTS SOLD OR
    2  USED IN THE STATE OF NEW  YORK FOR THE PURPOSE OF PROVIDING SECURITY-RE-
    3  LATED FUNCTIONS MAY NOT EXCLUDE DIAGNOSTIC, SERVICE AND REPAIR  INFORMA-
    4  TION  NECESSARY  TO  RESET  A  SECURITY-RELATED ELECTRONIC FUNCTION FROM
    5  INFORMATION  PROVIDED  TO  OWNERS AND INDEPENDENT REPAIR FACILITIES.  IF
    6  EXCLUDED UNDER THIS PARAGRAPH, THE INFORMATION  NECESSARY  TO  RESET  AN
    7  IMMOBILIZER  SYSTEM  OR  SECURITY-RELATED  ELECTRONIC  MODULE  SHALL  BE
    8  OBTAINED BY OWNERS AND INDEPENDENT REPAIR FACILITIES THROUGH THE  APPRO-
    9  PRIATE SECURE DATA RELEASE SYSTEMS.
   10    3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE A MANUFACTUR-
   11  ER TO DIVULGE A TRADE SECRET.
   12    4.  NOTWITHSTANDING  ANY  LAW,  RULE OR REGULATION TO THE CONTRARY, NO
   13  PROVISION IN THIS SECTION SHALL BE READ,  INTERPRETED  OR  CONSTRUED  TO
   14  ABROGATE, INTERFERE WITH, CONTRADICT OR ALTER THE TERMS OF ANY AGREEMENT
   15  EXECUTED  AND  IN  FORCE  BETWEEN  AN  AUTHORIZED  REPAIR PROVIDER AND A
   16  MANUFACTURER INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION
   17  OF WARRANTY OR RECALL REPAIR WORK BY AN AUTHORIZED  REPAIR  PROVIDER  ON
   18  BEHALF  OF  A MANUFACTURER PURSUANT TO SUCH AUTHORIZED REPAIR AGREEMENT;
   19  PROVIDED, HOWEVER, THAT ANY  PROVISION  IN  SUCH  AN  AUTHORIZED  REPAIR
   20  PROVIDER  THAT PURPORTS TO WAIVE, AVOID, RESTRICT OR LIMIT A MANUFACTUR-
   21  ER'S COMPLIANCE WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.
   22    5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE MANUFACTURERS
   23  OR AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER OR INDEPENDENT REPAIR
   24  PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED  BY  A
   25  MANUFACTURER  TO  AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF
   26  AN AUTHORIZING AGREEMENT.
   27    6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE  MANUFACTURERS
   28  OR MOTOR VEHICLE DEALERS AS DEFINED IN THIS SECTION.
   29    7. (A) IN ADDITION TO ANY OTHER REMEDIES THAT MAY BE AVAILABLE AT LAW,
   30  A  VIOLATION  OF  THIS SECTION SHALL BE DEEMED TO BE AN UNFAIR METHOD OF
   31  COMPETITION AND AN UNFAIR OR DECEPTIVE ACT OR PRACTICE IN THE CONDUCT OF
   32  TRADE OR COMMERCE IN VIOLATION OF SECTION THREE  HUNDRED  FORTY-NINE  OF
   33  THIS CHAPTER.
   34    (B)  AN  INDEPENDENT  REPAIR  PROVIDER  OR  OWNER  WHO BELIEVES THAT A
   35  MANUFACTURER HAS FAILED TO PROVIDE INFORMATION, INCLUDING DOCUMENTATION,
   36  UPDATES TO  FIRMWARE,  SAFETY  AND  SECURITY  CORRECTIONS,  DIAGNOSTICS,
   37  DOCUMENTATION,  OR  A  TOOL  REQUIRED  BY  THIS  SECTION MUST NOTIFY THE
   38  MANUFACTURER IN WRITING AND GIVE THE MANUFACTURER THIRTY DAYS  FROM  THE
   39  TIME THE MANUFACTURER RECEIVES THE COMPLAINT TO CURE THE FAILURE. IF THE
   40  MANUFACTURER  CURES SUCH COMPLAINT WITHIN THE CURE PERIOD, DAMAGES SHALL
   41  BE LIMITED TO ACTUAL DAMAGES IN ANY SUBSEQUENT LITIGATION.
   42    (C) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING  BETWEEN  AN  ORIGINAL
   43  EQUIPMENT  MANUFACTURER  AND  ITS  AUTHORIZED REPAIR PROVIDER RELATED TO
   44  EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR  AGREEMENT,
   45  AN  AUTHORIZED  REPAIR  PROVIDER  SHALL HAVE ALL THE RIGHTS AND REMEDIES
   46  PROVIDED IN THIS SECTION.
   47    S 2. This act shall take effect on the sixtieth  day  after  it  shall
   48  have become a law.