Bill Text: NY S09058 | 2017-2018 | General Assembly | Introduced


Bill Title: Relates to the sale of mobile devices and computers; requires original equipment manufacturers to provide diagnostic and repair information.

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Introduced - Dead) 2018-06-15 - REFERRED TO RULES [S09058 Detail]

Download: New_York-2017-S09058-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          9058
                    IN SENATE
                                      June 15, 2018
                                       ___________
        Introduced  by  Sen.  BOYLE  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
        AN ACT to amend the general business law, in relation  to  the  sale  of
          mobile  devices  and  computers  and  providing  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 "mobile device and computer 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  and repair of mobile devices and computers. 1. Defi-
     6  nitions. For the purposes of this section,  the  following  terms  shall
     7  have the following meanings:
     8    (a)  "Mobile  device"  means  any hand-held mobile telephone, personal
     9  digital assistant (PDA),  hand-held  device  with  mobile  data  access,
    10  laptop computer, pager, broadband personal communication device, two-way
    11  messaging device, or portable computing device.
    12    (b)  "Computer"  means an electronic, magnetic, optical, electrochemi-
    13  cal, or other high-speed  data  processing  device  performing  logical,
    14  arithmetic, or storage functions, and includes any data storage facility
    15  or  communications facility directly related to or operating in conjunc-
    16  tion with such device, but such term does not include an automated type-
    17  writer or typesetter, a portable handheld calculator, or  other  similar
    18  device.
    19    (c)  "Authorized  repair provider" means an individual or business who
    20  is unaffiliated with an original equipment manufacturer and who  has  an
    21  arrangement  with the original equipment manufacturer, for a definite or
    22  indefinite period,  under  which  the  original  equipment  manufacturer
    23  grants  to  the  individual  or  business a license to use a trade name,
    24  service mark, or other proprietary identifier for the purposes of offer-
    25  ing the services of diagnosis, maintenance, or repair of mobile  devices
    26  or  computers  under the name of the original equipment manufacturer, or
    27  other arrangement with the original equipment manufacturer to offer such
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16299-01-8

        S. 9058                             2
     1  services on behalf of the original equipment manufacturer.  An  original
     2  equipment  manufacturer  who  offers  the services of diagnosis, mainte-
     3  nance, or repair of its own mobile device or computer, and who does  not
     4  have  an  arrangement described in this subdivision with an unaffiliated
     5  individual or business, shall be considered an authorized repair provid-
     6  er with respect to such mobile devices or computers.
     7    (d) "Documentation"  means  any  manual,  diagram,  reporting  output,
     8  service  code description, schematic diagram, or similar kinds of infor-
     9  mation provided to an authorized repair provider  for  purposes  of  its
    10  effecting  the  services  of  diagnosis,  maintenance,  or repair of the
    11  mobile device or computer.
    12    (e) "Embedded software" means any programmable  instructions  provided
    13  on firmware delivered with the mobile device or computer, or with a part
    14  for  such  mobile  device  or computer, for purposes of mobile device or
    15  computer operation, including all relevant patches and fixes made by the
    16  manufacturer of such  mobile  device  or  computer  or  part  for  these
    17  purposes.
    18    (f)  "Fair  and  reasonable  terms"  for  obtaining  a part or tool or
    19  documentation means at costs and terms, including convenience of  deliv-
    20  ery,  and  including rights of use, equivalent to what is offered by the
    21  original equipment manufacturer to an authorized repair provider,  using
    22  the net costs that would be incurred by an authorized repair provider in
    23  obtaining  an equivalent part or tool or documentation from the original
    24  equipment manufacturer, accounting for any discounts, rebates, or  other
    25  incentive  programs  in arriving at the actual net costs. For documenta-
    26  tion, including any relevant updates, "fair and reasonable terms"  means
    27  at  no charge, except that, when the documentation is requested in phys-
    28  ical printed form, a charge may be included for  the  reasonable  actual
    29  costs of preparing and sending the copy.
    30    (g)  "Firmware"  means  a  software  program  or  set  of instructions
    31  programmed on the mobile device or computer,  or  on  a  part  for  such
    32  mobile  devices  or computers, to allow the mobile device or computer or
    33  part to communicate with  other  components  of  the  mobile  device  or
    34  computer.
    35    (h)  "Independent  repair  provider"  means  an individual or business
    36  operating in this state, who does not have an arrangement  described  in
    37  paragraph (c) of this subdivision with an original equipment manufactur-
    38  er,  and  who  is not affiliated with any individual or business who has
    39  such an arrangement, and who is engaged in the  services  of  diagnosis,
    40  maintenance,  or  repair  of  mobile  device or computer, except that an
    41  original equipment manufacturer or, with respect to that original equip-
    42  ment manufacturer, an individual or business who has such an arrangement
    43  with that original equipment manufacturer, or who is affiliated with  an
    44  individual  or  business  who has such an arrangement with that original
    45  equipment  manufacturer,  shall  be  considered  an  independent  repair
    46  provider  for  purposes  of  those  instances in which it engages in the
    47  services of diagnosis, maintenance, or repair of the  mobile  device  or
    48  computer  that  is  not  manufactured  by or sold under the name of that
    49  original equipment manufacturer.
    50    (i) "Original equipment manufacturer" means a business engaged in  the
    51  business  of selling or leasing new mobile devices or computers manufac-
    52  tured by or on behalf of itself, to any individual or business.
    53    (j) "Owner" means an individual or business who owns or leases  mobile
    54  devices or computers purchased or used in this state.
    55    (k) "Part" means any replacement part, either new or used, made avail-
    56  able by an original equipment manufacturer for purposes of effecting the

        S. 9058                             3
     1  services  of  maintenance or repair of mobile devices or computers manu-
     2  factured or sold by the original equipment manufacturer.
     3    2.  Requirements.  (a)  For mobile devices or computers, and parts for
     4  such mobile devices or  computers,  sold  or  used  in  this  state,  an
     5  original  equipment  manufacturer  shall make available, for purposes of
     6  diagnosis, maintenance, or repair, to any independent  repair  provider,
     7  or  to  the owner of the mobile device or computer manufactured by or on
     8  behalf of, or sold by, the original equipment manufacturer, on fair  and
     9  reasonable  terms,  documentation,  parts,  and  tools, inclusive of any
    10  updates to information or embedded software.  Nothing  in  this  section
    11  requires  an original equipment manufacturer to make available a part if
    12  the part is no longer available to the original equipment manufacturer.
    13    (b) For mobile devices or computers that contain an electronic securi-
    14  ty lock or  other  security-related  function,  the  original  equipment
    15  manufacturer shall make available to the owner and to independent repair
    16  providers,  on  fair  and  reasonable  terms, any special documentation,
    17  tools, and parts needed to reset the lock or function when  disabled  in
    18  the  course of diagnosis, maintenance, or repair of the mobile device or
    19  computer. Such documentation, tools, and parts  may  be  made  available
    20  through appropriate secure release systems.
    21    3.  Enforcement  by  attorney  general.  Whenever  there  shall  be  a
    22  violation of this section, an application may be made  by  the  attorney
    23  general in the name of the people of the state of New York to a court or
    24  justice  having jurisdiction by a special proceeding to issue an injunc-
    25  tion, and upon notice to the defendant of not less than  five  days,  to
    26  enjoin  and  restrain the continuance of such violation; and if it shall
    27  appear to the satisfaction of the court or justice  that  the  defendant
    28  has, in fact, violated this section, an injunction may be issued by such
    29  court or justice, enjoining and restraining any further violation, with-
    30  out  requiring  proof  that  any  person  has,  in fact, been injured or
    31  damaged thereby. In any such proceeding, the court may  make  allowances
    32  to  the attorney general as provided in paragraph six of subdivision (a)
    33  of section eighty-three hundred three of  the  civil  practice  law  and
    34  rules,  and direct restitution.  Whenever the court shall determine that
    35  a violation of this section has occurred, the court may impose  a  civil
    36  penalty of not more than five hundred dollars for each violation result-
    37  ing  from a single act or incident. In connection with any such proposed
    38  application, the attorney general is authorized to take proof and make a
    39  determination of the relevant facts and to issue subpoena in  accordance
    40  with the civil practice law and rules.
    41    4.  Limitations.  (a)  Nothing  in  this section shall be construed to
    42  require an original equipment manufacturer to divulge a trade secret  to
    43  an owner or an independent service provider.
    44    (b) No provision in this section shall be construed to alter the terms
    45  of any arrangement described in paragraph (c) of subdivision one of this
    46  section  in  force between an authorized repair provider and an original
    47  equipment manufacturer, including, but not limited to,  the  performance
    48  or  provision  of warranty or recall repair work by an authorized repair
    49  provider on behalf of an original  equipment  manufacturer  pursuant  to
    50  such  arrangement, except that any provision in such terms that purports
    51  to waive, avoid, restrict, or limit the original  equipment  manufactur-
    52  er's  obligations  to  comply  with this section shall be void and unen-
    53  forceable.
    54    (c) Nothing in this section shall be construed to require an  original
    55  equipment manufacturer or an authorized repair provider to provide to an
    56  owner  or  independent repair provider access to information, other than

        S. 9058                             4
     1  documentation, that is provided by the original  equipment  manufacturer
     2  to an authorized repair provider pursuant to the terms of an arrangement
     3  described in paragraph (c) of subdivision one of this section.
     4    5.  Applicability. This section applies with respect to mobile devices
     5  or computers sold or in use on or  after  the  effective  date  of  this
     6  section.
     7    § 3. This act shall take effect January 1, 2019.
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