NY State Senate Bill 2015-S3998B

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 06, 2016	committee discharged and committed to rules
Mar 04, 2016	print number 3998b
Mar 04, 2016	amend and recommit to consumer protection
Jan 06, 2016	referred to consumer protection
Jun 16, 2015	committee discharged and committed to rules
Apr 23, 2015	print number 3998a
Apr 23, 2015	amend (t) and recommit to consumer protection
Feb 25, 2015	referred to consumer protection

co-Sponsors

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2015-S3998 - Details

See Assembly Version of this Bill:: A6068
Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in 2017-2018 Legislative Session:: S618

2015-S3998 - Summary

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.

2015-S3998 - Sponsor Memo

                                BILL NUMBER:S3998

TITLE OF BILL:

An act to amend the general business law, in relation to the sale of
certain diagnostic and repair information systems

PURPOSE OR GENERAL IDEA OF BILL:

This bill will require manufacturers who operate and sell in New York
State to make available diagnostic and repair information for digital
electronic parts and machines.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Creation of a new section 399-nn

Sub-Section 1 Definitions

Sub-Section 2. This section requires manufacturers of digital parts
sold or used in New York to make available manufacturer diagnostic and
repair information and tools for purchase by independent repair
facilities. This section prohibits manufacturers from requiring
independent repair providers to purchase diagnostic information in a
propriety format unless such information is not available in a
standard format. Manufacturers would not be responsible for the

content and functionality of aftermarket diagnostic tools or service.
Service/spare parts also must be made available.

Sub-Section 3. This legislation does not require the disclosure of
trade secrets.

Sub-Section 4. This legislation does not affect agreements between
manufacturers and authorized repair providers.

Sub-Section 5. This legislation does not require access to
non-diagnostic and non-repair information.

Sub-Section 6. Excludes motor vehicle manufacturers and motor vehicle
dealers Sub-Section 7. Violations of this section are deemed an
unlawful "Deceptive Act and Practice." This section limits the amount
of damages to actual damages.

Section 2.

Effective Date

JUSTIFICATION:

This bill will protect consumers from the monopolistic practices of
digital electronics manufacturers. Manufacturers' current practices
prohibit the repair services marketplace from thriving. Nothing
prevents third party repairers from being technically competent to
complete digital repairs other than the lack of information being
withheld by manufacturers. This legislation will require manufacturers
to make their non-trade secret diagnostic and repair information
available for sale to third party repairers. It will also require


manufacturers to produce clear contracts on what firmware is legally
owned by the consumer and is retained by the manufacturer.  This
distinction is necessary for third party repairers and consumers to
stay properly informed of their ownership rights.

Currently, repair of digital items are intentionally limited by the
manufacturer. Manufacturers will require consumers to pay for repair
services through their repair division or manufacturer-authorized
repairers. The practices by manufacturers essentially create a
monopoly on these repair services, These limited authorized channels
result in inflated, high repair prices and high overturn of electronic
items. Another concern is the large amount of electronic waste created
by the inability to affordably repair broken electronics. Lack of
competition in the digital repair industry creates high costs to
consumers, businesses and government operations. This bill will open
the market of digital repair to competition.

PRIOR LEGISLATIVE HISTORY:

New Bill.

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

The 60th day after it becomes law.

2015-S3998 - Bill Text download pdf

                            
                    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:

  Section 1. The general business law is amended by adding a new section
399-nn to read as follows:
  S 399-NN. SALE OF DIAGNOSTIC AND REPAIR INFORMATION SYSTEMS. 1.  DEFI-
NITIONS. AS USED IN THIS SECTION, THE FOLLOWING  TERMS  SHALL  HAVE  THE
SIGNIFICANCE  HEREIN  DEFINED UNLESS ANOTHER MEANING IS CLEARLY APPARENT
IN LANGUAGE OR CONTEXT:
  (A) "ORIGINAL EQUIPMENT MANUFACTURER" MEANS  ANY  PERSON  OR  BUSINESS
WHO,  IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS
OF SELLING OR LEASING  NEW  DIGITAL  ELECTRONIC  PARTS  OF  MACHINES  TO
CONSUMERS  OR  OTHER END USERS AND IS ENGAGED IN THE DIAGNOSIS, SERVICE,
MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT TO SUCH  PARTS  OR
MACHINES.
  (B)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
ON FIRMWARE DELIVERED WITH THE MACHINE  OR  PART  FOR  THE  PURPOSES  OF
MACHINE  OPERATION, INCLUDING ALL RELEVANT PATCHES AND FIXES MADE BY THE
MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT  LIMITED  TO  SYNONYMS
"BASIC INTERNAL OPERATING SYSTEM", "INTERNAL OPERATING SYSTEM", "MACHINE
CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
  (C)  "AUTHORIZED REPAIR PROVIDER" MEANS AN ORAL OR WRITTEN ARRANGEMENT
FOR A DEFINITE OR INDEFINITE PERIOD IN WHICH A MANUFACTURER OR DISTRIBU-
TOR GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE  TO
USE  A  TRADE  NAME,  SERVICE  MARK  OR  RELATED  CHARACTERISTIC FOR THE
PURPOSES OF OFFERING REPAIR SERVICES UNDER THE NAME OF THE MANUFACTURER.
  (D) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN  LIGHT  OF
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

  (I)  THE  NET  COST TO THE AUTHORIZED REPAIR ORGANIZATIONS FOR SIMILAR
INFORMATION OBTAINED FROM MANUFACTURERS, LESS ANY DISCOUNTS, REBATES, OR
OTHER INCENTIVE PROGRAMS;
  (II)  THE  COST TO THE MANUFACTURER FOR PREPARING AND DISTRIBUTING THE
INFORMATION, EXCLUDING ANY RESEARCH AND DEVELOPMENT  COSTS  INCURRED  IN
DESIGNING  AND  IMPLEMENTING,  UPGRADING  OR  ALTERING  THE PRODUCT, BUT
INCLUDING AMORTIZED CAPITAL COSTS FOR THE PREPARATION  AND  DISTRIBUTION
OF THE INFORMATION;
  (III)  THE  PRICE  CHARGED BY OTHER MANUFACTURERS FOR SIMILAR INFORMA-
TION;
  (IV) THE PRICE CHARGED BY MANUFACTURERS FOR SIMILAR INFORMATION  PRIOR
TO THE LAUNCH OF MANUFACTURER WEB SITES;
  (V)  THE  ABILITY  OF  AFTERMARKET  TECHNICIANS OR SHOPS TO AFFORD THE
INFORMATION;
  (VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
  (VII) THE EXTENT TO WHICH THE INFORMATION IS USED, WHICH INCLUDES  THE
NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
  (VIII) INFLATION.
  (E)  "DATA SECURITY FEATURE" MEANS ANY FEATURE OF AN ELECTRONIC DEVICE
DESIGNED FOR THE SOLE PURPOSE OF PREVENTING THE  USE  OF  AN  ELECTRONIC
DEVICE  IN WHICH IT IS INSTALLED FROM STARTING WITHOUT THE CORRECT ACTI-
VATION OR AUTHORIZATION CODE.
  (F) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT,  OR
SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
  (G)  "SERVICE  PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW OR USED,
MADE AVAILABLE BY THE MANUFACTURER TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
  (H) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
IN THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH A  MANUFACTURER  OR
MANUFACTURER'S AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAG-
NOSIS,  SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT;
PROVIDED, HOWEVER, THAT, FOR THE PURPOSES OF THIS SECTION, A MANUFACTUR-
ER SHALL BE CONSIDERED AN INDEPENDENT REPAIR PROVIDER FOR  THE  PURPOSES
OF  THOSE  INSTANCES  WHEN  SUCH  MANUFACTURER ENGAGES IN THE DIAGNOSIS,
SERVICE, MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT THAT  ARE
NOT AFFILIATED WITH THE MANUFACTURER.
  (I)  "DIGITAL ELECTRONIC EQUIPMENT" MEANS A PART OR MACHINE ORIGINALLY
MANUFACTURED FOR DISTRIBUTION AND SALE IN THE UNITED STATES.
  (J) "OWNER" MEANS A PERSON OR BUSINESS WHO OWNS OR  LEASES  A  DIGITAL
ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
  (K)  "REMOTE  DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA TRANSFER FUNCTION
BETWEEN A DIGITAL ELECTRONIC MACHINE AND THE PROVIDER OF REPAIR SERVICES
INCLUDING FOR PURPOSES  OF  REMOTE  DIAGNOSTICS,  SETTING  CONTROLS,  OR
LOCATION IDENTIFICATION.
  (L)  "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR ELECTRON-
ICALLY STORED  OR  KEPT  WHICH  CONSTITUTES,  REPRESENTS,  EVIDENCES  OR
RECORDS  INTELLECTUAL  PROPERTY  INCLUDING SECRET OR CONFIDENTIALLY HELD
DESIGNS, PROCESSES, PROCEDURES, FORMULAS, INVENTIONS OR IMPROVEMENTS, OR
SECRET OR  CONFIDENTIALLY  HELD  SCIENTIFIC,  TECHNICAL,  MERCHANDISING,
PRODUCTION,  FINANCIAL,  BUSINESS OR MANAGEMENT INFORMATION, OR ANYTHING
WITHIN THE DEFINITION OF PARAGRAPH THREE OF SECTION 1839 OF TITLE  EIGH-
TEEN OF THE UNITED STATES CODE.
  (M)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED  BY
THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-

S. 3998                             3

DARDS  AND  REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
BUT EXCLUDING (I) A MOTORCYCLE; (II) A  VEHICLE  WITH  A  GROSS  VEHICLE
WEIGHT  OVER  14,000  POUNDS; OR (III) A RECREATIONAL VEHICLE OR AN AUTO
HOME EQUIPPED FOR HABITATION.
  (N)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
  (O) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
OR LEASING NEW MOTOR VEHICLES TO CONSUMERS OR OTHER END  USERS  PURSUANT
TO  A  FRANCHISE  AGREEMENT  AND WHO HAS OBTAINED A LICENSE, AS REQUIRED
UNDER APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE,  MAINTE-
NANCE  OR  REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO
SAID FRANCHISE AGREEMENT.
  2. (A) MANUFACTURERS OF DIGITAL ELECTRONIC PARTS AND MACHINES SOLD  OR
USED  IN THE STATE OF NEW YORK SHALL: I.  MAKE AVAILABLE FOR PURCHASE BY
INDEPENDENT REPAIR FACILITIES OR OTHER OWNERS OF  PRODUCTS  MANUFACTURED
BY SUCH MANUFACTURER DIAGNOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR
TECHNICAL  UPDATES,  UPDATES  AND  CORRECTIONS  TO FIRMWARE, AND RELATED
DOCUMENTATION, IN THE SAME MANNER SUCH MANUFACTURER MAKES  AVAILABLE  TO
ITS AUTHORIZED REPAIR CHANNEL. EACH MANUFACTURER SHALL PROVIDE ACCESS TO
SUCH   MANUFACTURER'S  DIAGNOSTIC  AND  REPAIR  INFORMATION  SYSTEM  FOR
PURCHASE BY OWNERS AND  INDEPENDENT  REPAIR  FACILITIES  UPON  FAIR  AND
REASONABLE TERMS; AND
  II.  MAKE  AVAILABLE FOR PURCHASE BY THE PRODUCT OWNER, OR THE AUTHOR-
IZED AGENT OF THE OWNER, SUCH SERVICE PARTS, INCLUSIVE OF ANY UPDATES TO
THE FIRMWARE OF THE PARTS, FOR PURCHASE UPON FAIR AND REASONABLE  TERMS.
NOTHING  IN  THIS  SUBDIVISION  SHALL  REQUIRE  THE  ORIGINAL  EQUIPMENT
MANUFACTURER TO SELL SERVICE PARTS IF THE SERVICE PARTS  ARE  NO  LONGER
AVAILABLE  TO  THE  ORIGINAL  EQUIPMENT  MANUFACTURER  OR THE AUTHORIZED
REPAIR PROVIDER OF THE ORIGINAL EQUIPMENT MANUFACTURER.
  (B) ANY MANUFACTURER THAT SELLS ANY  DIAGNOSTIC,  SERVICE,  OR  REPAIR
INFORMATION  TO  ANY  INDEPENDENT  REPAIR  PROVIDER OR OTHER THIRD PARTY
PROVIDER IN A FORMAT THAT IS STANDARDIZED WITH OTHER MANUFACTURERS,  AND
ON TERMS AND CONDITIONS MORE FAVORABLE THAN THE MANNER AND THE TERMS AND
CONDITIONS  PURSUANT TO WHICH THE AUTHORIZED REPAIR PROVIDER OBTAINS THE
SAME DIAGNOSTIC, SERVICE OR REPAIR INFORMATION, SHALL BE PROHIBITED FROM
REQUIRING ANY AUTHORIZED REPAIR PROVIDER TO CONTINUE PURCHASING DIAGNOS-
TIC, SERVICE, OR REPAIR INFORMATION IN A PROPRIETARY FORMAT, UNLESS SUCH
PROPRIETARY FORMAT INCLUDES DIAGNOSTIC, SERVICE,  OR  REPAIR  OPERATIONS
INFORMATION  OR FUNCTIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED
FORMAT.
  (C) EACH MANUFACTURER OF DIGITAL ELECTRONIC PRODUCTS SOLD OR  USED  IN
THE  STATE  OF  NEW YORK SHALL MAKE AVAILABLE FOR PURCHASE BY OWNERS AND
INDEPENDENT REPAIR FACILITIES ALL DIAGNOSTIC REPAIR TOOLS  INCORPORATING
THE  SAME DIAGNOSTIC, REPAIR AND REMOTE COMMUNICATIONS CAPABILITIES THAT
SUCH MANUFACTURER MAKES AVAILABLE TO ITS OWN REPAIR OR ENGINEERING STAFF
OR ANY AUTHORIZED REPAIR CHANNELS. EACH MANUFACTURER  SHALL  OFFER  SUCH
TOOLS  FOR SALE TO OWNERS AND TO INDEPENDENT REPAIR FACILITIES UPON FAIR
AND REASONABLE TERMS.
  EACH MANUFACTURER  THAT  PROVIDES  DIAGNOSTIC  REPAIR  INFORMATION  TO
AFTERMARKET TOOL, DIAGNOSTICS, OR THIRD PARTY SERVICE INFORMATION PUBLI-
CATIONS  AND  SYSTEMS  SHALL  HAVE FULLY SATISFIED ITS OBLIGATIONS UNDER
THIS SECTION AND THEREAFTER NOT BE RESPONSIBLE FOR THE CONTENT AND FUNC-
TIONALITY  OF  AFTERMARKET  DIAGNOSTIC  TOOLS  OR  SERVICE   INFORMATION
SYSTEMS.

S. 3998                             4

  (D)  MANUFACTURERS  OF  DIGITAL  ELECTRONIC EQUIPMENT OR PARTS SOLD OR
USED IN THE STATE OF NEW  YORK FOR THE PURPOSE OF PROVIDING SECURITY-RE-
LATED FUNCTIONS MAY NOT EXCLUDE DIAGNOSTIC, SERVICE AND REPAIR  INFORMA-
TION  NECESSARY  TO  RESET  A  SECURITY-RELATED ELECTRONIC FUNCTION FROM
INFORMATION  PROVIDED  TO  OWNERS AND INDEPENDENT REPAIR FACILITIES.  IF
EXCLUDED UNDER THIS PARAGRAPH, THE INFORMATION  NECESSARY  TO  RESET  AN
IMMOBILIZER  SYSTEM  OR  SECURITY-RELATED  ELECTRONIC  MODULE  SHALL  BE
OBTAINED BY OWNERS AND INDEPENDENT REPAIR FACILITIES THROUGH THE  APPRO-
PRIATE SECURE DATA RELEASE SYSTEMS.
  3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE A MANUFACTUR-
ER TO DIVULGE A TRADE SECRET.
  4.  NOTWITHSTANDING  ANY  LAW,  RULE OR REGULATION TO THE CONTRARY, NO
PROVISION IN THIS SECTION SHALL BE READ,  INTERPRETED  OR  CONSTRUED  TO
ABROGATE, INTERFERE WITH, CONTRADICT OR ALTER THE TERMS OF ANY AGREEMENT
EXECUTED  AND  IN  FORCE  BETWEEN  AN  AUTHORIZED  REPAIR PROVIDER AND A
MANUFACTURER INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION
OF WARRANTY OR RECALL REPAIR WORK BY AN AUTHORIZED  REPAIR  PROVIDER  ON
BEHALF  OF  A MANUFACTURER PURSUANT TO SUCH AUTHORIZED REPAIR AGREEMENT;
PROVIDED, HOWEVER, THAT ANY  PROVISION  IN  SUCH  AN  AUTHORIZED  REPAIR
PROVIDER  THAT PURPORTS TO WAIVE, AVOID, RESTRICT OR LIMIT A MANUFACTUR-
ER'S COMPLIANCE WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.
  5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE MANUFACTURERS
OR AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER OR INDEPENDENT REPAIR
PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED  BY  A
MANUFACTURER  TO  AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF
AN AUTHORIZING AGREEMENT.
  6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE  MANUFACTURERS
OR MOTOR VEHICLE DEALERS AS DEFINED IN THIS SECTION.
  7. (A) IN ADDITION TO ANY OTHER REMEDIES THAT MAY BE AVAILABLE AT LAW,
A  VIOLATION  OF  THIS SECTION SHALL BE DEEMED TO BE AN UNFAIR METHOD OF
COMPETITION AND AN UNFAIR OR DECEPTIVE ACT OR PRACTICE IN THE CONDUCT OF
TRADE OR COMMERCE IN VIOLATION OF SECTION THREE  HUNDRED  FORTY-NINE  OF
THIS CHAPTER.
  (B)  AN  INDEPENDENT  REPAIR  PROVIDER  OR  OWNER  WHO BELIEVES THAT A
MANUFACTURER HAS FAILED TO PROVIDE INFORMATION, INCLUDING DOCUMENTATION,
UPDATES TO  FIRMWARE,  SAFETY  AND  SECURITY  CORRECTIONS,  DIAGNOSTICS,
DOCUMENTATION,  OR  A  TOOL  REQUIRED  BY  THIS  SECTION MUST NOTIFY THE
MANUFACTURER IN WRITING AND GIVE THE MANUFACTURER THIRTY DAYS  FROM  THE
TIME THE MANUFACTURER RECEIVES THE COMPLAINT TO CURE THE FAILURE. IF THE
MANUFACTURER  CURES SUCH COMPLAINT WITHIN THE CURE PERIOD, DAMAGES SHALL
BE LIMITED TO ACTUAL DAMAGES IN ANY SUBSEQUENT LITIGATION.
  (C) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING  BETWEEN  AN  ORIGINAL
EQUIPMENT  MANUFACTURER  AND  ITS  AUTHORIZED REPAIR PROVIDER RELATED TO
EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR  AGREEMENT,
AN  AUTHORIZED  REPAIR  PROVIDER  SHALL HAVE ALL THE RIGHTS AND REMEDIES
PROVIDED IN THIS SECTION.
  S 2. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

co-Sponsors

View additional co-sponsors

2015-S3998A - Details

See Assembly Version of this Bill:: A6068
Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in 2017-2018 Legislative Session:: S618

2015-S3998A - Summary

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.

2015-S3998A - Sponsor Memo

                                BILL NUMBER:S3998A

TITLE OF BILL:  An act to amend the general business law, in relation to
the sale of digital electronic equipment diagnostic and repair informa-
tion

PURPOSE OR GENERAL IDEA OF BILL: This bill will require manufacturers
who operate and sell in New York State to make available diagnostic and
repair information for digital electronic parts and machines.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Creation of a new section 399-nn of the General Business Law

Sub-Section 1. Definitions

Sub-Section 2. This section requires manufacturers of digital parts sold
or used in New York to make available manufacturer diagnostic and repair
information and tools for purchase by independent repair facilities.
This section prohibits manufacturers from requiring independent repair
providers to purchase diagnostic information in a propriety format
unless such information is not available in a standard format. Manufac-
turers would not be responsible for the content and functionality of
aftermarket diagnostic tools or service.  Service/spare parts also must
be made available

Sub-Section 3. This legislation does not require the disclosure of trade
secrets.

Sub-Section 4. This legislation does not affect agreements between
manufacturers and authorized repair providers.

Sub-Section 5. This legislation does not require access to non-diagnos-
tic and non-repair information.

Sub-Section 6. Excludes motor vehicle manufacturers and motor vehicle
dealers

Sub-Section 7. Violations of this section are deemed an unlawful "Decep-
tive Act and Practice." This section allows the attorney general to take
civil action against a company violating this section. Limits the civil
penalty to $500 dollars.

Section 2. Effective Date

JUSTIFICATION:  This bill will protect consumers from the monopolistic
practices of digital electronics manufacturers. Manufacturers' current
practices prohibit the repair services marketplace from thriving. Noth-
ing prevents third party repairers from being technically competent to
complete digital repairs other than the lack of information being with-
held by manufacturers. This legislation will require manufacturers to
make their non-trade secret diagnostic and repair information available

for sale to third party repairers. It will also require manufacturers to
produce clear contracts on what firmware is legally owned by the consum-
er and is retained by the manufacturer. This distinction is necessary
for third party repairers and consumers to stay properly informed of
their ownership rights.

Currently, repair of digital items are intentionally limited by the
manufacturer. Manufacturers will require consumers to pay for repair
services through their repair division or manufacturer-authorized
repairers. The practices by manufacturers essentially create a monopoly
on these repair services. These limited authorized channels result in
inflated, high repair prices and high overturn of electronic items.
Another concern is the large amount of electronic waste created by the
inability to affordably repair broken electronics. Lack of competition
in the digital repair industry creates high costs to consumers, busi-
nesses and government operations. This bill will open the market of
digital repair to competition.

PRIOR LEGISLATIVE HISTORY: New Bill.

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE: The 60th day after it becomes law.

2015-S3998A - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3998--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 25, 2015
                               ___________

Introduced  by  Sens.  BOYLE,  ADDABBO,  AVELLA, CROCI, PERALTA, ROBACH,
  SAMPSON -- read twice and ordered printed,  and  when  printed  to  be
  committed  to  the  Committee  on  Consumer  Protection  --  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:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "fair repair act".
  S  2. The general business law is amended by adding a new section 399-
nn to read as follows:
  S 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC  AND  REPAIR
INFORMATION.  1.  DEFINITIONS.    FOR  THE PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM"  MEANS  ANY  PERSON  OR
BUSINESS  WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE  DIAGNOSIS,
SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
OF SUCH EQUIPMENT.
  (B) "AUTHORIZED REPAIR PROVIDER" MEANS A PERSON OR BUSINESS  THAT  HAS
AN  ARRANGEMENT  FOR  A  DEFINITE  OR  INDEFINITE PERIOD IN WHICH AN OEM
GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE TO  USE
A TRADE NAME, SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF
OFFERING REPAIR SERVICES UNDER THE NAME OF THE OEM.
  (C) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
IN  THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH AN OEM OR AN OEM'S
AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS,  SERVICE,
MAINTENANCE  OR  REPAIR  OF  EQUIPMENT; PROVIDED, HOWEVER, THAT, FOR THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07386-05-5

S. 3998--A                          2

PURPOSES OF THIS SECTION, AN OEM  SHALL  BE  CONSIDERED  AN  INDEPENDENT
REPAIR  PROVIDER  FOR  THE  PURPOSES  OF  THOSE  INSTANCES WHEN SUCH OEM
ENGAGES IN THE DIAGNOSIS, SERVICE,  MAINTENANCE  OR  REPAIR  OF  DIGITAL
EQUIPMENT THAT IS NOT AFFILIATED WITH THE OEM.
  (D)  "OWNER"  MEANS  A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
  (E) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT,  OR
SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
  (F)  "DIGITAL  ELECTRONIC  EQUIPMENT"  OR  "EQUIPMENT" MEANS A PART OR
EQUIPMENT ORIGINALLY MANUFACTURED  FOR  DISTRIBUTION  AND  SALE  IN  THE
UNITED STATES.
  (G)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
ON FIRMWARE DELIVERED WITH THE EQUIPMENT OR PART  FOR  THE  PURPOSES  OF
EQUIPMENT  OPERATION,  INCLUDING  ALL RELEVANT PATCHES AND FIXES MADE BY
THE MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED  TO  SYNO-
NYMS  "BASIC  INTERNAL  OPERATING  SYSTEM", "INTERNAL OPERATING SYSTEM",
"MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
  (H) "DATA SECURITY FEATURE" MEANS ANY FEATURE  OF  EQUIPMENT  DESIGNED
FOR  THE  SOLE PURPOSE OF PREVENTING THE USE OF EQUIPMENT IN WHICH IT IS
INSTALLED FROM STARTING WITHOUT THE CORRECT ACTIVATION OR  AUTHORIZATION
CODE.
  (I)  "REMOTE  DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA TRANSFER FUNCTION
BETWEEN EQUIPMENT AND THE PROVIDER  OF  REPAIR  SERVICES  INCLUDING  FOR
PURPOSES  OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR LOCATION IDENTIFI-
CATION.
  (J) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW
OR USED, MADE AVAILABLE BY THE OEM TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
  (K) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN  LIGHT  OF
RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
  (I)  THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR INFOR-
MATION OBTAINED FROM AN OEM,  LESS  ANY  DISCOUNTS,  REBATES,  OR  OTHER
INCENTIVE PROGRAMS;
  (II)  THE  COST TO THE OEM FOR PREPARING AND DISTRIBUTING THE INFORMA-
TION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN DESIGNING
AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT INCLUDING AMOR-
TIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION OF THE INFORMA-
TION;
  (III) THE PRICE CHARGED BY OTHER OEMS FOR SIMILAR INFORMATION;
  (IV) THE PRICE CHARGED BY OEMS FOR SIMILAR INFORMATION  PRIOR  TO  THE
LAUNCH OF OEM WEB SITES;
  (V)  THE  ABILITY  OF  AFTERMARKET  TECHNICIANS OR SHOPS TO AFFORD THE
INFORMATION;
  (VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
  (VII) THE EXTENT TO WHICH THE INFORMATION IS USED, WHICH INCLUDES  THE
NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
  (VIII) INFLATION.
  (L)  "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR ELECTRON-
ICALLY STORED  OR  KEPT  WHICH  CONSTITUTES,  REPRESENTS,  EVIDENCES  OR
RECORDS  INTELLECTUAL  PROPERTY  INCLUDING SECRET OR CONFIDENTIALLY HELD
DESIGNS, PROCESSES, PROCEDURES, FORMULAS, INVENTIONS OR IMPROVEMENTS, OR
SECRET OR  CONFIDENTIALLY  HELD  SCIENTIFIC,  TECHNICAL,  MERCHANDISING,
PRODUCTION,  FINANCIAL,  BUSINESS OR MANAGEMENT INFORMATION, OR ANYTHING
WITHIN THE DEFINITION OF PARAGRAPH THREE OF SECTION 1839 OF TITLE  EIGH-
TEEN OF THE UNITED STATES CODE.

S. 3998--A                          3

  (M)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED  BY
THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
DARDS  AND  REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
BUT  EXCLUDING  (I)  A  MOTORCYCLE;  (II) A VEHICLE WITH A GROSS VEHICLE
WEIGHT OVER 14,000 POUNDS; OR (III) A RECREATIONAL VEHICLE  OR  AN  AUTO
HOME EQUIPPED FOR HABITATION.
  (N)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
  (O) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
OR LEASING NEW MOTOR VEHICLES TO A PERSON  OR  BUSINESS  PURSUANT  TO  A
FRANCHISE  AGREEMENT  AND  WHO HAS OBTAINED A LICENSE, AS REQUIRED UNDER
APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
CHISE AGREEMENT.
  2. (A) FOR EQUIPMENT AND PARTS SOLD AND USED IN THIS STATE,  THE  OEMS
OF  SUCH  EQUIPMENT  AND  PARTS (I) MAKE AVAILABLE TO INDEPENDENT REPAIR
PROVIDERS OR OWNERS OF PRODUCTS MANUFACTURED BY SUCH OEM DIAGNOSTIC  AND
REPAIR  INFORMATION,  INCLUDING  REPAIR  TECHNICAL  UPDATES, UPDATES AND
CORRECTIONS TO EMBEDDED SOFTWARE FOR NO CHARGE OR  IN  THE  SAME  MANNER
SUCH OEM MAKES AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
  (II)  MAKE  AVAILABLE  FOR PURCHASE BY THE EQUIPMENT OWNER, HIS OR HER
AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
UPDATES TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND  REASONABLE
TERMS.  NOTHING  IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO SELL PARTS
IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
PROVIDER OF THE OEM.
  (B) ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR  INFORMATION
TO  ANY  INDEPENDENT REPAIR PROVIDER OR TO ANY OWNER IN A FORMAT THAT IS
STANDARDIZED WITH OTHER OEMS, AND ON TERMS AND CONDITIONS MORE FAVORABLE
THAN THE MANNER AND THE TERMS  AND  CONDITIONS  PURSUANT  TO  WHICH  THE
AUTHORIZED  REPAIR  PROVIDER  OBTAINS  THE  SAME  DIAGNOSTIC, SERVICE OR
REPAIR INFORMATION, SHALL BE PROHIBITED FROM  REQUIRING  ANY  AUTHORIZED
REPAIR  PROVIDER  TO  CONTINUE PURCHASING DIAGNOSTIC, SERVICE, OR REPAIR
INFORMATION IN A PROPRIETARY  FORMAT,  UNLESS  SUCH  PROPRIETARY  FORMAT
INCLUDES  DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS INFORMATION OR FUNC-
TIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED FORMAT.
  (C) EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK  SHALL
MAKE  AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES
ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE  SAME  DIAGNOSTIC,  REPAIR
AND  REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE TO
ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED  REPAIR  PROVIDER.
EACH  OEM  SHALL  OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT
REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
  EACH OEM THAT PROVIDES DIAGNOSTIC REPAIR  INFORMATION  TO  AFTERMARKET
TOOL,  DIAGNOSTICS,  OR THIRD PARTY SERVICE INFORMATION PUBLICATIONS AND
SYSTEMS SHALL HAVE FULLY SATISFIED ITS OBLIGATIONS  UNDER  THIS  SECTION
AND  THEREAFTER  NOT BE RESPONSIBLE FOR THE CONTENT AND FUNCTIONALITY OF
AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
  (D) OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW  YORK  FOR
THE  PURPOSE  OF  PROVIDING  SECURITY-RELATED  FUNCTIONS MAY NOT EXCLUDE
DIAGNOSTIC, SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A  SECURI-
TY-RELATED  ELECTRONIC  FUNCTION FROM INFORMATION PROVIDED TO OWNERS AND
INDEPENDENT REPAIR FACILITIES.  IF EXCLUDED UNDER  THIS  PARAGRAPH,  THE
INFORMATION NECESSARY TO RESET AN IMMOBILIZER SYSTEM OR SECURITY-RELATED

S. 3998--A                          4

ELECTRONIC  MODULE  SHALL  BE  OBTAINED BY OWNERS AND INDEPENDENT REPAIR
FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE SYSTEMS.
  3.  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO REQUIRE AN OEM TO
DIVULGE A TRADE SECRET.
  4. NOTWITHSTANDING ANY LAW, RULE OR REGULATION  TO  THE  CONTRARY,  NO
PROVISION  IN  THIS  SECTION  SHALL BE READ, INTERPRETED OR CONSTRUED TO
ABROGATE, INTERFERE WITH, CONTRADICT OR ALTER THE TERMS OF ANY AGREEMENT
EXECUTED AND IN FORCE BETWEEN AN AUTHORIZED REPAIR PROVIDER AND  AN  OEM
INCLUDING,  BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF WARRANTY
OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF  OF  AN
OEM  PURSUANT  TO  SUCH  AUTHORIZED REPAIR AGREEMENT; PROVIDED, HOWEVER,
THAT ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT  PURPORTS
TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
SHALL BE VOID AND UNENFORCEABLE.
  5.  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO REQUIRE OEMS OR
AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER  OR  INDEPENDENT  REPAIR
PROVIDER  ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY AN
OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
IZING AGREEMENT.
  6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
ANY PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER OR MOTOR  VEHICLE
DEALERS AS DEFINED IN THIS SECTION.
  7.  (A)  WHENEVER  THE  ATTORNEY  GENERAL  SHALL BELIEVE FROM EVIDENCE
SATISFACTORY TO HIM THAT ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR
AGENT OR EMPLOYEE THEREOF HAS ENGAGED IN OR IS ABOUT TO ENGAGE IN ANY OF
THE ACTS OR PRACTICES IN VIOLATION OF  THIS  SECTION  HE  MAY  BRING  AN
ACTION  IN THE NAME AND ON BEHALF OF THE PEOPLE OF THE STATE OF NEW YORK
TO ENJOIN SUCH UNLAWFUL ACTS OR PRACTICES AND TO OBTAIN  RESTITUTION  OF
ANY  MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH ACTS
OR PRACTICES IN VIOLATION OF THIS SECTION. IN  SUCH  ACTION  PRELIMINARY
RELIEF  MAY  BE  GRANTED UNDER ARTICLE SIXTY-THREE OF THE CIVIL PRACTICE
LAW AND RULES.
  (B) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
ATTORNEY GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM  SUCH
PROCEEDING  IS  CONTEMPLATED NOTICE BY CERTIFIED MAIL AND AN OPPORTUNITY
TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
PROCEEDINGS SHOULD NOT BE INSTITUTED AGAINST HIM,  UNLESS  THE  ATTORNEY
GENERAL  SHALL  FIND,  IN ANY CASE IN WHICH HE SEEKS PRELIMINARY RELIEF,
THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
  (C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
THE RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE  CIVIL
PRACTICE LAW AND RULES.
  (D)  THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED TO
BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
THIS STATE UNDER WHICH THE ATTORNEY GENERAL IS AUTHORIZED  TO  TAKE  ANY
ACTION OR CONDUCT ANY INQUIRY.
  (E)  ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR EMPLOYEE
THEREOF WHO ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE  IN  VIOLATION
OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
HUNDRED  DOLLARS  FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE STATE OF
NEW YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE  ATTORNEY
GENERAL.
  (F)  EXCEPT  IN  THE INSTANCE OF A DISPUTE ARISING BETWEEN AN ORIGINAL
EQUIPMENT MANUFACTURER AND ITS AUTHORIZED  REPAIR  PROVIDER  RELATED  TO

S. 3998--A                          5

EITHER  PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR AGREEMENT,
AN AUTHORIZED REPAIR PROVIDER SHALL HAVE ALL  THE  RIGHTS  AND  REMEDIES
PROVIDED IN THIS SECTION.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

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2015-S3998B (ACTIVE) - Details

See Assembly Version of this Bill:: A6068
Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in 2017-2018 Legislative Session:: S618

2015-S3998B (ACTIVE) - Summary

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.

2015-S3998B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3998B        REVISED MEMO 03/04/2016

 TITLE OF BILL :  An act to amend the general business law, in
relation to the sale of digital electronic equipment diagnostic and
repair information

 PURPOSE OR GENERAL IDEA OF BILL :

This bill will require manufacturers who operate and sell in New York
State to make available diagnostic and repair information for digital
electronic parts and machines.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1. Creation of a new section 399-nn of the General Business
Law

Sub-Section 1. Definitions
Sub-Section 2. This section requires manufacturers of digital parts
sold or used in New York to make available manufacturer diagnostic and
repair information and tools for purchase by independent repair
facilities. This section prohibits manufacturers from requiring
independent repair providers to purchase diagnostic information in a
propriety format unless such information is not available in a
standard format. Manufacturers would not be responsible for the
content and functionality of aftermarket diagnostic tools or service.

Service/spare parts also must be made available
Sub-Section 3. This legislation does not require the disclosure of
trade secrets.
Sub-Section 4. This legislation does not affect agreements between
manufacturers and authorized repair providers.
Sub-Section 5. This legislation does not require access to
non-diagnostic and non-repair information.
Sub-Section 6. Excludes motor vehicle manufacturers and motor vehicle
dealers
Sub-Section 7. Requires notification by independent repair providers.
Sub-Section 8. Creates a public outreach program about this
legislation.
Sub-Section 9. Violations of this section are deemed an unlawful
"Deceptive Act and Practice." This section allows the attorney general
to take civil action against a company violating this section. Limits
the civil penalty to $500 dollars.

Section 2. Effective Date

 JUSTIFICATION :

This bill will protect consumers from the monopolistic practices of
digital electronics manufacturers. Manufacturers' current practices
prohibit the repair services marketplace from thriving. Nothing
prevents third party repairers from being technically competent to
complete digital repairs other than the lack of information being
withheld by manufacturers. This legislation will require manufacturers
to make their non-trade secret diagnostic and repair information
available for sale to third party repairers. It will also require
manufacturers to produce clear contracts on what firmware is legally
owned by the consumer and is retained by the manufacturer. This
distinction is necessary for third party repairers and consumers to
stay properly informed of their ownership rights.

Currently, repair of digital items are intentionally limited by the
manufacturer. Manufacturers will require consumers to pay for repair
services through their repair division or manufacturer-authorized
repairers. The practices by manufacturers essentially create a
monopoly on these repair services. These limited authorized channels
result in inflated, high repair prices and high overturn of electronic
items. Another concern is the large amount of electronic waste created
by the inability to affordably repair broken electronics. Lack of
competition in the digital repair industry creates high costs to
consumers, businesses and government operations. This bill will open
the market of digital repair to competition.

 PRIOR LEGISLATIVE HISTORY :

New Bill.

 FISCAL IMPLICATIONS :

None to the State.

 EFFECTIVE DATE :
The 60th day after it becomes law.

2015-S3998B (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3998--B

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 25, 2015
                               ___________

Introduced  by  Sens.  BOYLE,  ADDABBO,  AVELLA, CARLUCCI, CROCI, DILAN,
  HAMILTON, PERALTA, ROBACH -- read twice and ordered printed, and  when
  printed  to  be  committed  to the Committee on Consumer Protection --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said  committee  --  recommitted  to the Committee on
  Consumer Protection in accordance  with  Senate  Rule  6,  sec.  8  --
  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:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "fair repair act".
  S  2. The general business law is amended by adding a new section 399-
nn to read as follows:
  S 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC  AND  REPAIR
INFORMATION.  1.  DEFINITIONS.    FOR  THE PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM"  MEANS  ANY  PERSON  OR
BUSINESS  WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE  DIAGNOSIS,
SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
OF SUCH EQUIPMENT.
  (B) "AUTHORIZED REPAIR PROVIDER" MEANS A PERSON OR BUSINESS  THAT  HAS
AN  ARRANGEMENT  FOR  A  DEFINITE  OR  INDEFINITE PERIOD IN WHICH AN OEM
GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE TO  USE
A TRADE NAME, SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF
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.
                                                           LBD07386-10-6

S. 3998--B                          2

  (C) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
IN  THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH AN OEM OR AN OEM'S
AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS,  SERVICE,
MAINTENANCE  OR  REPAIR  OF  EQUIPMENT; PROVIDED, HOWEVER, THAT, FOR THE
PURPOSES  OF  THIS  SECTION,  AN  OEM SHALL BE CONSIDERED AN INDEPENDENT
REPAIR PROVIDER FOR THE  PURPOSES  OF  THOSE  INSTANCES  WHEN  SUCH  OEM
ENGAGES  IN  THE  DIAGNOSIS,  SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL
EQUIPMENT THAT IS NOT AFFILIATED WITH THE OEM.
  (D) "OWNER" MEANS A PERSON OR BUSINESS WHO OWNS OR  LEASES  A  DIGITAL
ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
  (E)  "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT, OR
SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
  (F) "DIGITAL ELECTRONIC EQUIPMENT" OR  "EQUIPMENT"  MEANS  A  PART  OR
EQUIPMENT  ORIGINALLY  MANUFACTURED  FOR  DISTRIBUTION  AND  SALE IN THE
UNITED STATES.
  (G) "EMBEDDED SOFTWARE" MEANS ANY PROGRAMMABLE  INSTRUCTIONS  PROVIDED
ON  FIRMWARE  DELIVERED  WITH  THE EQUIPMENT OR PART FOR THE PURPOSES OF
EQUIPMENT OPERATION, INCLUDING ALL RELEVANT PATCHES AND  FIXES  MADE  BY
THE  MANUFACTURER  FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED TO SYNO-
NYMS "BASIC INTERNAL OPERATING  SYSTEM",  "INTERNAL  OPERATING  SYSTEM",
"MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
  (H)  "REMOTE  DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA TRANSFER FUNCTION
BETWEEN EQUIPMENT AND THE PROVIDER  OF  REPAIR  SERVICES  INCLUDING  FOR
PURPOSES  OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR LOCATION IDENTIFI-
CATION.
  (I) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW
OR USED, MADE AVAILABLE BY THE OEM TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
  (J) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN  LIGHT  OF
RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
  (I)  THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR INFOR-
MATION OBTAINED FROM AN OEM,  LESS  ANY  DISCOUNTS,  REBATES,  OR  OTHER
INCENTIVE PROGRAMS;
  (II)  THE  COST TO THE OEM FOR PREPARING AND DISTRIBUTING THE INFORMA-
TION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN DESIGNING
AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT INCLUDING AMOR-
TIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION OF THE INFORMA-
TION;
  (III) THE PRICE CHARGED BY OTHER OEMS FOR SIMILAR INFORMATION;
  (IV) THE PRICE CHARGED BY OEMS FOR SIMILAR INFORMATION  PRIOR  TO  THE
LAUNCH OF OEM WEB SITES;
  (V)  THE  ABILITY  OF  AFTERMARKET  TECHNICIANS OR SHOPS TO AFFORD THE
INFORMATION;
  (VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
  (VII) THE EXTENT TO WHICH THE INFORMATION IS USED, WHICH INCLUDES  THE
NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
  (VIII) INFLATION.
  (K)  "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR ELECTRON-
ICALLY STORED  OR  KEPT  WHICH  CONSTITUTES,  REPRESENTS,  EVIDENCES  OR
RECORDS  INTELLECTUAL  PROPERTY  INCLUDING SECRET OR CONFIDENTIALLY HELD
DESIGNS, PROCESSES, PROCEDURES, FORMULAS, INVENTIONS OR IMPROVEMENTS, OR
SECRET OR  CONFIDENTIALLY  HELD  SCIENTIFIC,  TECHNICAL,  MERCHANDISING,
PRODUCTION,  FINANCIAL,  BUSINESS OR MANAGEMENT INFORMATION, OR ANYTHING
WITHIN THE DEFINITION OF PARAGRAPH THREE OF SECTION 1839 OF TITLE  EIGH-
TEEN OF THE UNITED STATES CODE.

S. 3998--B                          3

  (L)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED  BY
THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
DARDS  AND  REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
BUT  EXCLUDING  (I)  A  MOTORCYCLE; OR (II) A RECREATIONAL VEHICLE OR AN
AUTO HOME EQUIPPED FOR HABITATION.
  (M) "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS  ENGAGED
IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
  (N)  "MOTOR  VEHICLE  DEALER" MEANS ANY PERSON OR BUSINESS WHO, IN THE
ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS  OF  SELLING
OR  LEASING  NEW  MOTOR  VEHICLES  TO A PERSON OR BUSINESS PURSUANT TO A
FRANCHISE AGREEMENT AND WHO HAS OBTAINED A LICENSE,  AS  REQUIRED  UNDER
APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
CHISE AGREEMENT.
  2. (A) FOR EQUIPMENT AND PARTS SOLD OR USED IN THIS STATE, THE OEMS OF
SUCH  EQUIPMENT AND PARTS SHALL (I) MAKE AVAILABLE TO INDEPENDENT REPAIR
PROVIDERS OR OWNERS OF PRODUCTS MANUFACTURED BY SUCH OEM DIAGNOSTIC  AND
REPAIR  INFORMATION,  INCLUDING  REPAIR  TECHNICAL  UPDATES, UPDATES AND
CORRECTIONS TO EMBEDDED SOFTWARE FOR NO CHARGE OR  IN  THE  SAME  MANNER
SUCH OEM MAKES AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
  (II)  MAKE  AVAILABLE  FOR PURCHASE BY THE EQUIPMENT OWNER, HIS OR HER
AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
UPDATES TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND  REASONABLE
TERMS.  NOTHING  IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO SELL PARTS
IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
PROVIDER OF THE OEM.
  (B) ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR  INFORMATION
TO  ANY  INDEPENDENT REPAIR PROVIDER OR TO ANY OWNER IN A FORMAT THAT IS
STANDARDIZED WITH OTHER OEMS, AND ON TERMS AND CONDITIONS MORE FAVORABLE
THAN THE MANNER AND THE TERMS  AND  CONDITIONS  PURSUANT  TO  WHICH  THE
AUTHORIZED  REPAIR  PROVIDER  OBTAINS  THE  SAME  DIAGNOSTIC, SERVICE OR
REPAIR INFORMATION, SHALL BE PROHIBITED FROM  REQUIRING  ANY  AUTHORIZED
REPAIR  PROVIDER  TO  CONTINUE PURCHASING DIAGNOSTIC, SERVICE, OR REPAIR
INFORMATION IN A PROPRIETARY  FORMAT,  UNLESS  SUCH  PROPRIETARY  FORMAT
INCLUDES  DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS INFORMATION OR FUNC-
TIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED FORMAT.
  (C) EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK  SHALL
MAKE  AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES
ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE  SAME  DIAGNOSTIC,  REPAIR
AND  REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE TO
ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED  REPAIR  PROVIDER.
EACH  OEM  SHALL  OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT
REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
  EACH OEM THAT PROVIDES DIAGNOSTIC REPAIR  INFORMATION  TO  AFTERMARKET
TOOL,  DIAGNOSTICS,  OR THIRD PARTY SERVICE INFORMATION PUBLICATIONS AND
SYSTEMS SHALL HAVE FULLY SATISFIED ITS OBLIGATIONS  UNDER  THIS  SECTION
AND  THEREAFTER  NOT BE RESPONSIBLE FOR THE CONTENT AND FUNCTIONALITY OF
AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
  (D) OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW  YORK  FOR
THE  PURPOSE  OF  PROVIDING  SECURITY-RELATED  FUNCTIONS MAY NOT EXCLUDE
DIAGNOSTIC, SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A  SECURI-
TY-RELATED  ELECTRONIC  FUNCTION FROM INFORMATION PROVIDED TO OWNERS AND
INDEPENDENT REPAIR FACILITIES.  IF EXCLUDED UNDER  THIS  PARAGRAPH,  THE
INFORMATION NECESSARY TO RESET AN IMMOBILIZER SYSTEM OR SECURITY-RELATED

S. 3998--B                          4

ELECTRONIC  MODULE  SHALL  BE  OBTAINED BY OWNERS AND INDEPENDENT REPAIR
FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE SYSTEMS.
  3.  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO REQUIRE AN OEM TO
DIVULGE A TRADE SECRET.
  4. NOTWITHSTANDING ANY LAW, RULE OR REGULATION  TO  THE  CONTRARY,  NO
PROVISION  IN  THIS  SECTION  SHALL BE READ, INTERPRETED OR CONSTRUED TO
ABROGATE, INTERFERE WITH, CONTRADICT OR ALTER THE TERMS OF ANY AGREEMENT
EXECUTED AND IN FORCE BETWEEN AN AUTHORIZED REPAIR PROVIDER AND  AN  OEM
INCLUDING,  BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF WARRANTY
OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF  OF  AN
OEM  PURSUANT  TO  SUCH  AUTHORIZED REPAIR AGREEMENT; PROVIDED, HOWEVER,
THAT ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT  PURPORTS
TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
SHALL BE VOID AND UNENFORCEABLE.
  5.  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO REQUIRE OEMS OR
AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER  OR  INDEPENDENT  REPAIR
PROVIDER  ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY AN
OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
IZING AGREEMENT.
  6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
ANY PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER OR MOTOR  VEHICLE
DEALERS AS DEFINED IN THIS SECTION.
  7. ANY INDEPENDENT REPAIR PROVIDER THAT PURCHASES OR ACQUIRES EMBEDDED
SOFTWARE  OR  SERVICE  PARTS  SHALL, PRIOR TO PERFORMING ANY SERVICES ON
DIGITAL ELECTRONIC EQUIPMENT, NOTIFY THE  OWNER  OF  SUCH  EQUIPMENT  IN
WRITING THAT:
  (A)  CONSUMERS  SHOULD REVIEW THE TERMS AND CONDITIONS OF THE WARRANTY
FOR SUCH DIGITAL ELECTRONIC EQUIPMENT AS REPAIRS  NOT  PERFORMED  BY  AN
AUTHORIZED  REPAIR PROVIDER COULD AFFECT THE TERMS AND CONDITIONS OF THE
WARRANTY;
  (B) WARRANTORS CANNOT REQUIRE THAT ONLY BRANDED PARTS BE USED WITH THE
PRODUCT IN ORDER TO RETAIN THE WARRANTY;
  (C) WARRANTORS SHALL DEMONSTRATE THAT A DEFECT OR DAMAGE WAS CAUSED BY
INDEPENDENT REPAIR TO AFFECT THE WARRANTY;
  (D) WARRANTIES ARE GOVERNED BY THE FEDERAL MAGNUSON-MOSS WARRANTY ACT;
AND
  (E) SUCH INDEPENDENT REPAIR  PROVIDER  IS  NOT  AN  AUTHORIZED  REPAIR
PROVIDER FOR SUCH DIGITAL ELECTRONIC EQUIPMENT.
  8.  THE  CONSUMER  PROTECTION  DIVISION  SHALL  DEVELOP, ESTABLISH AND
IMPLEMENT A PUBLIC  OUTREACH  PROGRAM  DIRECTED  AT  INDEPENDENT  REPAIR
PROVIDERS,  CONSUMERS AND DIGITAL ELECTRONIC ORIGINAL EQUIPMENT MANUFAC-
TURERS TO INFORM THEM OF THEIR RIGHTS AND RESPONSIBILITIES  PURSUANT  TO
THIS  SECTION.  SUCH  PUBLIC  OUTREACH SHALL INCLUDE BROCHURES, CONSUMER
GUIDES, POSTERS OR ANY COMBINATION THEREOF AND MADE AVAILABLE TO CONSUM-
ERS AND OTHER STAKEHOLDERS BY ANY MEANS DEEMED APPROPRIATE BY SUCH DIVI-
SION AND MAY INCLUDE INTERNET, RADIO, AND PRINT ADVERTISING. THE  PUBLIC
OUTREACH  MAY  ALSO  IDENTIFY AND RECRUIT INDIVIDUALS OR TRADE ORGANIZA-
TIONS TO ASSIST IN DISTRIBUTING  THIS  INFORMATION  AND  MATERIALS.  THE
PUBLIC  OUTREACH  SHALL  BEGIN NO LATER THAN THE THIRTIETH DAY AFTER THE
EFFECTIVE DATE OF THIS SECTION.
  9. (A) WHENEVER THE  ATTORNEY  GENERAL  SHALL  BELIEVE  FROM  EVIDENCE
SATISFACTORY TO HIM THAT ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR
AGENT OR EMPLOYEE THEREOF HAS ENGAGED IN OR IS ABOUT TO ENGAGE IN ANY OF
THE  ACTS  OR  PRACTICES  IN  VIOLATION  OF THIS SECTION HE MAY BRING AN
ACTION IN THE NAME AND ON BEHALF OF THE PEOPLE OF THE STATE OF NEW  YORK
TO  ENJOIN  SUCH UNLAWFUL ACTS OR PRACTICES AND TO OBTAIN RESTITUTION OF

S. 3998--B                          5

ANY MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH  ACTS
OR  PRACTICES  IN  VIOLATION OF THIS SECTION. IN SUCH ACTION PRELIMINARY
RELIEF MAY BE GRANTED UNDER ARTICLE SIXTY-THREE OF  THE  CIVIL  PRACTICE
LAW AND RULES.
  (B) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
ATTORNEY  GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM SUCH
PROCEEDING IS CONTEMPLATED NOTICE BY CERTIFIED MAIL AND  AN  OPPORTUNITY
TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
PROCEEDINGS  SHOULD  NOT  BE INSTITUTED AGAINST HIM, UNLESS THE ATTORNEY
GENERAL SHALL FIND, IN ANY CASE IN WHICH HE  SEEKS  PRELIMINARY  RELIEF,
THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
  (C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
THE  RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL
PRACTICE LAW AND RULES.
  (D) THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED  TO
BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
THIS  STATE  UNDER  WHICH THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY
ACTION OR CONDUCT ANY INQUIRY.
  (E) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR  EMPLOYEE
THEREOF  WHO  ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE IN VIOLATION
OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
HUNDRED DOLLARS FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE  STATE  OF
NEW  YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
GENERAL.
  (F) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING  BETWEEN  AN  ORIGINAL
EQUIPMENT  MANUFACTURER  AND  ITS  AUTHORIZED REPAIR PROVIDER RELATED TO
EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR  AGREEMENT,
AN  AUTHORIZED  REPAIR  PROVIDER  SHALL HAVE ALL THE RIGHTS AND REMEDIES
PROVIDED IN THIS SECTION.
  S 3. This act shall take effect on the sixtieth  day  after  it  shall
have  become  a  law;  provided,  however, that subdivision 7 of section
399-nn of the general business law, as added by section two of this  act
shall take effect on the ninetieth day after it shall have become a law.

Senate Bill S3998B

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Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

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2015-S3998 - Details

2015-S3998 - Summary

2015-S3998 - Sponsor Memo

2015-S3998 - Bill Text download pdf

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2015-S3998A - Details

2015-S3998A - Summary

2015-S3998A - Sponsor Memo

2015-S3998A - Bill Text download pdf

co-Sponsors

2015-S3998B (ACTIVE) - Details

2015-S3998B (ACTIVE) - Summary

2015-S3998B (ACTIVE) - Sponsor Memo

2015-S3998B (ACTIVE) - Bill Text download pdf

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Senate Bill S3998B

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Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

2015-S3998 - Details

2015-S3998 - Summary

2015-S3998 - Sponsor Memo

2015-S3998 - Bill Text download pdf

co-Sponsors

2015-S3998A - Details

2015-S3998A - Summary

2015-S3998A - Sponsor Memo

2015-S3998A - Bill Text download pdf

co-Sponsors

2015-S3998B (ACTIVE) - Details

2015-S3998B (ACTIVE) - Summary

2015-S3998B (ACTIVE) - Sponsor Memo

2015-S3998B (ACTIVE) - Bill Text download pdf

Comments