A06068 Summary:

COSPNSRStirpe, Woerner, Skoufis, Colton, Benedetto, Gottfried, Gunther, Fahy, Lavine, Barrett, Dilan
MLTSPNSRBraunstein, Galef, Lentol, Lupardo, Raia, Simanowitz, Simon, Skartados, Weinstein
Add §399-nn, Gen Bus L
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.
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A06068 Actions:

03/11/2015referred to consumer affairs and protection
01/06/2016referred to consumer affairs and protection
03/29/2016amend (t) and recommit to consumer affairs and protection
03/29/2016print number 6068a
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A06068 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                     March 11, 2015
        Introduced  by M. of A. MORELLE, STIRPE, WOERNER, SKOUFIS, COLTON, BENE-
          DETTO, GOTTFRIED, GUNTHER, FAHY, LAVINE -- Multi-Sponsored by -- M. of
          WEINSTEIN  --  read  once  and  referred  to the Committee on Consumer
          Affairs and Protection -- recommitted to  the  Committee  on  Consumer
          Affairs  and  Protection in accordance with Assembly Rule 3, sec. 2 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
        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.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 6068--A                          2
     1    (c) "Independent repair provider" means a person or business operating
     2  in the state of New York that is not affiliated with an OEM or an  OEM's
     3  authorized  repair provider, which is engaged in the diagnosis, service,
     4  maintenance or repair of equipment; provided,  however,  that,  for  the
     5  purposes  of  this  section,  an  OEM shall be considered an independent
     6  repair provider for the  purposes  of  those  instances  when  such  OEM
     7  engages  in  the  diagnosis,  service,  maintenance or repair of digital
     8  equipment that is not affiliated with the OEM.
     9    (d) "Owner" means a person or business who owns or  leases  a  digital
    10  electronic product purchased or used in the state of New York.
    11    (e)  "Documentation" means any manuals, diagrams, reporting output, or
    12  service code descriptions provided to the authorized repair provider for
    13  the purposes of effecting repair.
    14    (f) "Digital electronic equipment" or  "equipment"  means  a  part  or
    15  equipment  originally  manufactured  for  distribution  and  sale in the
    16  United States.
    17    (g) "Embedded software" means any programmable  instructions  provided
    18  on  firmware  delivered  with  the equipment or part for the purposes of
    19  equipment operation, including all relevant patches and  fixes  made  by
    20  the  manufacturer  for this purpose, including, but not limited to syno-
    21  nyms "basic internal operating  system",  "internal  operating  system",
    22  "machine code", "assembly code", "root code", and "microcode".
    23    (h)  "Remote  diagnostics"  means  any  remote  data transfer function
    24  between equipment and the provider  of  repair  services  including  for
    25  purposes  of remote diagnostics, setting controls, or location identifi-
    26  cation.
    27    (i) "Service parts" or "parts" means any replacement parts, either new
    28  or used, made available by the OEM to the authorized repair provider for
    29  the purposes of effecting repair.
    30    (j) "Fair and reasonable terms" means an equitable price in  light  of
    31  relevant factors, including, but not limited to, the following:
    32    (i)  the net cost to the authorized repair provider for similar infor-
    33  mation obtained from an OEM,  less  any  discounts,  rebates,  or  other
    34  incentive programs;
    35    (ii)  the  cost to the OEM for preparing and distributing the informa-
    36  tion, excluding any research and development costs incurred in designing
    37  and implementing, upgrading or altering the product, but including amor-
    38  tized capital costs for the preparation and distribution of the informa-
    39  tion;
    40    (iii) the price charged by other OEMs for similar information;
    41    (iv) the price charged by OEMs for similar information  prior  to  the
    42  launch of OEM web sites;
    43    (v)  the  ability  of  aftermarket  technicians or shops to afford the
    44  information;
    45    (vi) the means by which the information is distributed;
    46    (vii) the extent to which the information is used, which includes  the
    47  number of users, and frequency, duration, and volume of use; and
    48    (viii) inflation.
    49    (k)  "Trade secret" means anything tangible or intangible or electron-
    50  ically stored  or  kept  which  constitutes,  represents,  evidences  or
    51  records  intellectual  property  including secret or confidentially held
    52  designs, processes, procedures, formulas, inventions or improvements, or
    53  secret or  confidentially  held  scientific,  technical,  merchandising,
    54  production,  financial,  business or management information, or anything
    55  within the definition of paragraph three of section 1839 of title  eigh-
    56  teen of the United States Code.

        A. 6068--A                          3
     1    (l)  "Motor vehicle" means any vehicle that is designed for transport-
     2  ing persons or property on a street or highway and that is certified  by
     3  the manufacturer under all applicable federal safety and emissions stan-
     4  dards  and  requirements for distribution and sale in the United States,
     5  but  excluding  (i)  a  motorcycle; or (ii) a recreational vehicle or an
     6  auto home equipped for habitation.
     7    (m) "Motor vehicle manufacturer" means any person or business  engaged
     8  in the business of manufacturing or assembling new motor vehicles.
     9    (n)  "Motor  vehicle  dealer" means any person or business who, in the
    10  ordinary course of its business, is engaged in the business  of  selling
    11  or  leasing  new  motor  vehicles  to a person or business pursuant to a
    12  franchise agreement and who has obtained a license,  as  required  under
    13  applicable law, and is engaged in the diagnosis, service, maintenance or
    14  repair of motor vehicles or motor vehicle engines pursuant to said fran-
    15  chise agreement.
    16    2. (a) For equipment and parts sold or used in this state, the OEMs of
    17  such  equipment and parts shall (i) make available to independent repair
    18  providers or owners of products manufactured by such OEM diagnostic  and
    19  repair  information,  including  repair  technical  updates, updates and
    20  corrections to embedded software for no charge or  in  the  same  manner
    21  such OEM makes available to its authorized repair provider; and
    22    (ii)  make  available  for purchase by the equipment owner, his or her
    23  authorized agent or independent repair provider, parts, inclusive of any
    24  updates to the embedded software of the parts, upon fair and  reasonable
    25  terms.  Nothing  in this subdivision shall require the OEM to sell parts
    26  if the parts are no longer available to the OEM or the authorized repair
    27  provider of the OEM.
    28    (b) Any OEM that sells any diagnostic, service, or repair  information
    29  to  any  independent repair provider or to any owner in a format that is
    30  standardized with other OEMs, and on terms and conditions more favorable
    31  than the manner and the terms  and  conditions  pursuant  to  which  the
    32  authorized  repair  provider  obtains  the  same  diagnostic, service or
    33  repair information, shall be prohibited from  requiring  any  authorized
    34  repair  provider  to  continue purchasing diagnostic, service, or repair
    35  information in a proprietary  format,  unless  such  proprietary  format
    36  includes  diagnostic, service, or repair operations information or func-
    37  tionality that is not available in such standardized format.
    38    (c) Each OEM of equipment sold or used in the state of New York  shall
    39  make  available for purchase by owners and independent repair facilities
    40  all diagnostic repair tools incorporating the  same  diagnostic,  repair
    41  and  remote communications capabilities that such OEM makes available to
    42  its own repair or engineering staff or any authorized  repair  provider.
    43  Each  OEM  shall  offer such tools for sale to owners and to independent
    44  repair facilities upon fair and reasonable terms.
    45    Each OEM that provides diagnostic repair  information  to  aftermarket
    46  tool,  diagnostics,  or third party service information publications and
    47  systems shall have fully satisfied its obligations  under  this  section
    48  and  thereafter  not be responsible for the content and functionality of
    49  aftermarket diagnostic tools or service information systems.
    50    (d) OEM equipment or parts sold or used in the state of New  York  for
    51  the  purpose  of  providing  security-related  functions may not exclude
    52  diagnostic, service and repair information necessary to reset a  securi-
    53  ty-related  electronic  function from information provided to owners and
    54  independent repair facilities.  If excluded under  this  paragraph,  the
    55  information necessary to reset an immobilizer system or security-related

        A. 6068--A                          4
     1  electronic  module  shall  be  obtained by owners and independent repair
     2  facilities through the appropriate secure data release systems.
     3    3.  Nothing  in  this  section shall be construed to require an OEM to
     4  divulge a trade secret.
     5    4. Notwithstanding any law, rule or regulation  to  the  contrary,  no
     6  provision  in  this  section  shall be read, interpreted or construed to
     7  abrogate, interfere with, contradict or alter the terms of any agreement
     8  executed and in force between an authorized repair provider and  an  OEM
     9  including,  but not limited to, the performance or provision of warranty
    10  or recall repair work by an authorized repair provider on behalf  of  an
    11  OEM  pursuant  to  such  authorized repair agreement; provided, however,
    12  that any provision in such an authorized repair agreement that  purports
    13  to waive, avoid, restrict or limit an OEM's compliance with this section
    14  shall be void and unenforceable.
    15    5.  Nothing  in  this  section  shall  be construed to require OEMs or
    16  authorized repair providers to provide an owner  or  independent  repair
    17  provider  access to non-diagnostic and repair information provided by an
    18  OEM to an authorized repair provider pursuant to the terms of an author-
    19  izing agreement.
    20    6. Nothing in this section shall apply to motor vehicle manufacturers,
    21  any product or service of a motor vehicle manufacturer or motor  vehicle
    22  dealers as defined in this section.
    23    7. Any independent repair provider that purchases or acquires embedded
    24  software  or  service  parts  shall, prior to performing any services on
    25  digital electronic equipment, notify the  owner  of  such  equipment  in
    26  writing that:
    27    (a)  consumers  should review the terms and conditions of the warranty
    28  for such digital electronic equipment as repairs  not  performed  by  an
    29  authorized  repair provider could affect the terms and conditions of the
    30  warranty;
    31    (b) warrantors cannot require that only branded parts be used with the
    32  product in order to retain the warranty;
    33    (c) warrantors shall demonstrate that a defect or damage was caused by
    34  independent repair to affect the warranty;
    35    (d) warranties are governed by the federal Magnuson-Moss Warranty Act;
    36  and
    37    (e) such independent repair  provider  is  not  an  authorized  repair
    38  provider for such digital electronic equipment.
    39    8.  The  consumer  protection  division  shall  develop, establish and
    40  implement a public  outreach  program  directed  at  independent  repair
    41  providers,  consumers and digital electronic original equipment manufac-
    42  turers to inform them of their rights and responsibilities  pursuant  to
    43  this  section.  Such  public  outreach shall include brochures, consumer
    44  guides, posters or any combination thereof and made available to consum-
    45  ers and other stakeholders by any means deemed appropriate by such divi-
    46  sion and may include internet, radio, and print advertising. The  public
    47  outreach  may  also  identify and recruit individuals or trade organiza-
    48  tions to assist in distributing  this  information  and  materials.  The
    49  public  outreach  shall  begin no later than the thirtieth day after the
    50  effective date of this section.
    51    9. (a) Whenever the  attorney  general  shall  believe  from  evidence
    52  satisfactory to him that any person, firm, corporation or association or
    53  agent or employee thereof has engaged in or is about to engage in any of
    54  the  acts  or  practices  in  violation  of this section he may bring an
    55  action in the name and on behalf of the people of the state of New  York
    56  to  enjoin  such unlawful acts or practices and to obtain restitution of

        A. 6068--A                          5
     1  any moneys or property obtained directly or indirectly by any such  acts
     2  or  practices  in  violation of this section. In such action preliminary
     3  relief may be granted under article sixty-three of  the  civil  practice
     4  law and rules.
     5    (b) Before any violation of this section is sought to be enjoined, the
     6  attorney  general shall be required to give the person against whom such
     7  proceeding is contemplated notice by certified mail and  an  opportunity
     8  to show in writing within five business days after receipt of notice why
     9  proceedings  should  not  be instituted against him, unless the attorney
    10  general shall find, in any case in which he  seeks  preliminary  relief,
    11  that to give such notice and opportunity is not in the public interest.
    12    (c) In connection with any proposed proceeding under this section, the
    13  attorney general is authorized to take proof and make a determination of
    14  the  relevant facts, and to issue subpoenas in accordance with the civil
    15  practice law and rules.
    16    (d) This subdivision shall apply to all acts or practices declared  to
    17  be in violation of this section, whether or not subject to any other law
    18  of this state, and shall not supersede, amend or repeal any other law of
    19  this  state  under  which the attorney general is authorized to take any
    20  action or conduct any inquiry.
    21    (e) Any person, firm, corporation or association or agent or  employee
    22  thereof  who  engages in any of the acts or practices to be in violation
    23  of this section shall be liable to a civil penalty of not more than five
    24  hundred dollars for each violation, which shall accrue to the  state  of
    25  New  York and may be recovered in a civil action brought by the attorney
    26  general.
    27    (f) Except in the instance of a dispute arising  between  an  original
    28  equipment  manufacturer  and  its  authorized repair provider related to
    29  either party's compliance with an existing authorized repair  agreement,
    30  an  authorized  repair  provider  shall have all the rights and remedies
    31  provided in this section.
    32    § 3. This act shall take effect on the sixtieth  day  after  it  shall
    33  have  become  a  law;  provided,  however, that subdivision 7 of section
    34  399-nn of the general business law, as added by section two of this  act
    35  shall take effect on the ninetieth day after it shall have become a law.
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