NY State Senate Bill 2017-S618C

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 31, 2018	print number 618c
Jan 31, 2018	amend and recommit to consumer protection
Jan 03, 2018	referred to consumer protection
Jun 05, 2017	print number 618b
Jun 05, 2017	amend and recommit to consumer protection
Apr 18, 2017	print number 618a
Apr 18, 2017	amend and recommit to consumer protection
Jan 04, 2017	referred to consumer protection

co-Sponsors

View additional co-sponsors

2017-S618 - Details

See Assembly Version of this Bill:: A8192
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S3998
2019-2020: A7535
2021-2022: A6315

2017-S618 - Summary

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

2017-S618 - Sponsor Memo

                                 BILL NUMBER:  S618

 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 :

2015-16: S.3998B Died in Rules.

 FISCAL IMPLICATIONS :

None to the State.

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

2017-S618 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    618
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE,  ADDABBO, AKSHAR, AVELLA, CARLUCCI, CROCI,
   DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, ROBACH -- read  twice  and
   ordered  printed, and when printed to be committed to the Committee on
   Consumer Protection
 
 AN ACT to amend the general business law, in relation  to  the  sale  of
   digital electronic equipment diagnostic and repair information
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "fair repair act".
   §  2. The general business law is amended by adding a new section 399-
 nn to read as follows:
   § 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
 PURPOSES OF THIS SECTION, AN OEM  SHALL  BE  CONSIDERED  AN  INDEPENDENT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05441-01-7

 S. 618                              2
 
 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.
   (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,

 S. 618                              3
 
 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
 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.

 S. 618                              4
 
   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
 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.

 S. 618                              5

   (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.
   § 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.

co-Sponsors

View additional co-sponsors

2017-S618A - Details

See Assembly Version of this Bill:: A8192
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S3998
2019-2020: A7535
2021-2022: A6315

2017-S618A - Summary

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

2017-S618A - Sponsor Memo

                                 BILL NUMBER:  S618A

 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. Titled "Fair Repair Act"

Section 2. 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. Excludes medical devices covered by federal law.
Sub-Section 8. Requires notification by independent repair providers.
Sub-Section 9. Applies this legislation to any equipment and parts
manufactured in 2012 or after
Sub-section 10. Creates a public outreach program about this
legislation. Violations of this section are deemed an unlawful
"Deceptive Act and Practice."
Sub-section 11. This section allows the attorney general to take civil
action against a company violating this section. Limits the civil
penalty to $500 dollars.

Section 3. 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 :

2015-16: S.3998B Died in Rules.

 FISCAL IMPLICATIONS :

None to the State.

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

2017-S618A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  618--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE,  ADDABBO, AKSHAR, AVELLA, CARLUCCI, CROCI,
   DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, PERSAUD,  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 commit-
   tee
 
 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".
   §  2. The general business law is amended by adding a new section 399-
 nn to read as follows:
   § 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 (I) A PERSON OR  BUSINESS  THAT
 HAS  AN  ARRANGEMENT  WITH AN OEM FOR A DEFINITE OR INDEFINITE PERIOD IN
 WHICH THE OEM GRANTS TO A PERSON OR BUSINESS  LICENSE  TO  USE  A  TRADE
 NAME,  SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF OFFER-
 ING REPAIR SERVICES UNDER THE NAME OF THE OEM, OR (II) A PERSON OR BUSI-
 NESS RETAINED BY THE OEM TO PROVIDE REFURBISHING SERVICES FOR THE  OEM'S
 PRODUCT OR PRODUCTS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05441-04-7

 S. 618--A                           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)  "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.
   (L)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.

 S. 618--A                           3
 
   (M) "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.
   (N)  "MANUFACTURER OF MOTOR VEHICLE EQUIPMENT" MEANS A PERSON OR BUSI-
 NESS ENGAGED IN THE BUSINESS OF MANUFACTURING  OR  SUPPLYING  COMPONENTS
 THAT  ARE  USED IN THE MANUFACTURE, SERVICING OR REPAIR OF A MOTOR VEHI-
 CLE.
   (O)  "MEDICAL  DEVICE"  MEANS  AN  INSTRUMENT,  APPARATUS,  IMPLEMENT,
 MACHINE,  CONTRIVANCE,  IMPLANT,  OR  OTHER  SIMILAR OR RELATED ARTICLE,
 INCLUDING A COMPONENT PART, OR ACCESSORY,  AS  DEFINED  IN  THE  FEDERAL
 FOOD,  DRUG  AND  COSMETIC  ACT, 21 USC, SECTION 321 (H) AS AMENDED FROM
 TIME TO TIME, WHICH IS INTENDED FOR USE IN THE DIAGNOSIS OF  DISEASE  OR
 OTHER  CONDITIONS,  OR IN THE CURE, MITIGATION, TREATMENT, OR PREVENTION
 OF DISEASE, IN MAN OR OTHER ANIMALS.
   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,   SCHEMATIC
 DIAGRAMS, UPDATES, CORRECTIONS TO EMBEDDED SOFTWARE AND SAFETY AND SECU-
 RITY PATCHES TIMELY, AND FOR NO CHARGE OR FOR THE SAME CHARGE AND 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

 S. 618--A                           4
 
 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
 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, MANUFACTURER OF
 MOTOR VEHICLE EQUIPMENT, OR MOTOR VEHICLE DEALERS  AS  DEFINED  IN  THIS
 SECTION.
   7.  NOTHING  IN THIS SECTION SHALL REQUIRE A MANUFACTURER OF A MEDICAL
 DEVICE AS DEFINED IN THIS SECTION TO IMPLEMENT  ANY  PROVISION  OF  THIS
 SECTION  THAT IS NOT PERMITTED UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
 ACT OR ANY OTHER FEDERAL LAW, RULE OR REGULATION  THAT  SUPERSEDES  THIS
 SECTION.
   8. 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.
   9.  THE  PROVISIONS  OF SUBDIVISION TWO OF THIS SECTION SHALL APPLY TO
 ANY EQUIPMENT AND PARTS MANUFACTURED IN THE YEAR TWO THOUSAND TWELVE AND
 THEREAFTER.
   10. 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

 S. 618--A                           5
 
 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.
   11. (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
 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.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have  become  a  law;  provided,  however, that subdivision 8 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.

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2017-S618B - Details

See Assembly Version of this Bill:: A8192
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S3998
2019-2020: A7535
2021-2022: A6315

2017-S618B - Summary

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

2017-S618B - Sponsor Memo

                                 BILL NUMBER:  S618B

 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 to independent repair providers.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1. Titled "Fair Repair Act"

Section 2. Adds a new § 399-nn of the General Business Law.

1. Definitions

2. 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. Make available
for purchase parts, including embedded software updates by independent
repair facilities. 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.
Provides that manufacturers will not be responsible for the content
and functionality of aftermarket diagnostic tools or service.

3. Does not require the disclosure of trade secrets.

4. Does not affect agreements between manufacturers and authorized
repair providers

5. Does not require access to non-diagnostic and non-repair
information.

6. Excludes motor vehicle manufacturers and motor vehicle dealers

7. Excludes medical devices covered by federal law.

8. Requires notification by independent repair providers.

9. Provides that this section to apply to equipment and parts sold or
used in this state for not less than five years beginning with
equipment and parts sold or used not earlier than 2012.

10. Creates a public outreach and education program about this
legislation.

11. This section allows the attorney general to take civil action
against a company violating this section. Limits the civil penalty to
$500 dollars.

Section 3. 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 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, repairs 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 :

2015-16: Died in Consumer Protection.

 FISCAL IMPLICATIONS :

None to the State.

 EFFECTIVE DATE :
The 60th day after it becomes law, except for subdivision 8 of §
399-nn of the general business law shall take effect on the 90th day
after it shall become law.

2017-S618B - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  618--B
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE, ADDABBO, AKSHAR, AVELLA, BAILEY, CARLUCCI,
   CROCI, DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, PERSAUD, 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 commit-
   tee --  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".
   § 2. The general business law is amended by adding a new section  399-
 nn to read as follows:
   §  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 (I) A PERSON OR BUSINESS THAT
 HAS AN ARRANGEMENT WITH AN OEM FOR A DEFINITE OR  INDEFINITE  PERIOD  IN
 WHICH  THE  OEM  GRANTS  TO  A PERSON OR BUSINESS LICENSE TO USE A TRADE
 NAME, SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF  OFFER-
 ING REPAIR SERVICES UNDER THE NAME OF THE OEM, OR (II) A PERSON OR BUSI-
 NESS  RETAINED BY THE OEM TO PROVIDE REFURBISHING SERVICES FOR THE OEM'S
 PRODUCT OR PRODUCTS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05441-05-7

 S. 618--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)  "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.
   (L)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.

 S. 618--B                           3
 
   (M) "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.
   (N)  "MANUFACTURER OF MOTOR VEHICLE EQUIPMENT" MEANS A PERSON OR BUSI-
 NESS ENGAGED IN THE BUSINESS OF MANUFACTURING  OR  SUPPLYING  COMPONENTS
 THAT  ARE  USED IN THE MANUFACTURE, SERVICING OR REPAIR OF A MOTOR VEHI-
 CLE.
   (O)  "MEDICAL  DEVICE"  MEANS  AN  INSTRUMENT,  APPARATUS,  IMPLEMENT,
 MACHINE,  CONTRIVANCE,  IMPLANT,  OR  OTHER  SIMILAR OR RELATED ARTICLE,
 INCLUDING A COMPONENT PART, OR ACCESSORY,  AS  DEFINED  IN  THE  FEDERAL
 FOOD,  DRUG  AND  COSMETIC  ACT, 21 USC, SECTION 321 (H) AS AMENDED FROM
 TIME TO TIME, WHICH IS INTENDED FOR USE IN THE DIAGNOSIS OF  DISEASE  OR
 OTHER  CONDITIONS,  OR IN THE CURE, MITIGATION, TREATMENT, OR PREVENTION
 OF DISEASE, IN MAN OR OTHER ANIMALS.
   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,   SCHEMATIC
 DIAGRAMS, UPDATES, CORRECTIONS TO EMBEDDED SOFTWARE AND SAFETY AND SECU-
 RITY PATCHES TIMELY, AND FOR NO CHARGE OR FOR THE SAME CHARGE AND IN THE
 SAME  FORMAT 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  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 FUNCTIONALITY 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

 S. 618--B                           4
 
 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
 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, MANUFACTURER OF
 MOTOR VEHICLE EQUIPMENT, OR MOTOR VEHICLE DEALERS  AS  DEFINED  IN  THIS
 SECTION.
   7.  NOTHING  IN THIS SECTION SHALL REQUIRE A MANUFACTURER OF A MEDICAL
 DEVICE AS DEFINED IN THIS SECTION TO IMPLEMENT  ANY  PROVISION  OF  THIS
 SECTION  THAT IS NOT PERMITTED UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
 ACT OR ANY OTHER FEDERAL LAW, RULE OR REGULATION  THAT  SUPERSEDES  THIS
 SECTION.
   8. 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.
   9.  BEGINNING  IN CALENDAR YEAR TWO THOUSAND TWELVE, AND UNLESS OTHER-
 WISE SPECIFIED, THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION  SHALL
 APPLY TO ANY EQUIPMENT AND PARTS SOLD OR USED IN THIS STATE FOR NOT LESS
 THAN  FIVE  YEARS  FOLLOWING THE LAST DATE SUCH EQUIPMENT AND PARTS WERE
 MANUFACTURED.
   10. 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-

 S. 618--B                           5
 
 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.
   11.  (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
 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.
   §  3.  This  act  shall take effect on the sixtieth day after it shall
 have become a law; provided, however,  that  subdivision  8  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.

co-Sponsors

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2017-S618C (ACTIVE) - Details

See Assembly Version of this Bill:: A8192
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S3998
2019-2020: A7535
2021-2022: A6315

2017-S618C (ACTIVE) - Summary

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

2017-S618C (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S618C

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

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill will require original equipment manufacturers (OEM) to make
diagnostic and repair information for digital electronic parts and
equipment available to independent repair providers if such parts and
equipment are or were sold in New York State in or after 2012.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Titled "Fair Repair Act"

Section 2. Adds a new § 399-nn of the General Business Law.

1. Definitions

2. Requires OEMs of digital equipment and parts sold or used in New York
in or after 2012 to make diagnostic and repair information and tools
available for purchase by equipment owners and independent repair facil-
ities. This subdivision also prohibits OEMs from requiring that author-
ized repair providers purchase diagnostic repair if such information is
sold or made available to any independent repair provider or equipment
owner in a format that is standardized with other OEMs. Provides that
manufacturers will not be responsible for the content and functionality
of aftermarket diagnostic tools or service.

3. Does not require the disclosure of trade secrets.

4. Does not affect agreements between manufacturers and authorized
repair providers, unless such an agreement, executed after the effective
date of this bill, attempts to waive, avoid, restrict or limit an OEM's
compliance with the provisions of this section.

5. Does not require access to non-diagnostic and non-repair information.

6. Excludes motor vehicle manufacturers and motor vehicle dealers

7. Excludes medical devices covered by federal law.

8. Requires independent repair providers to notify equipment owners in
writing that such owner should review the terms of his or her equipment
warranty and that repairs performed by other than an OEM's authorized
repair provider could affect the terms and conditions of the warranty.

9. This section allows the attorney general to take civil action against
a company violating this section. Limits the civil penalty to $500
dollars.

Section 3. Effective Date

 
JUSTIFICATION:


This bill will protect consumers from the monopolistic practices of
digital electronics manufacturers. Nothing prevents third party repair-
ers 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 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, repairs 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 repair
providers. 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 significant amount of electronic waste created by
the inability to affordably repair broken electronics. Lack of competi-
tion in the digital repair industry creates high costs for consumers,
businesses, and government operations and the early retirement of equip-
ment with a remaining useful life. This bill will open the digital
repair market to competition and its benefits.

 
PRIOR LEGISLATIVE HISTORY:

2015-16: A.6068-A Died in Consumer Affairs and Protection.

 
FISCAL IMPLICATIONS:

None to the State.

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

2017-S618C (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  618--C
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  BOYLE, ADDABBO, AKSHAR, AVELLA, BAILEY, CARLUCCI,
   CROCI, DILAN, HAMILTON, KAMINSKY, MURPHY, PERALTA, PERSAUD, 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 commit-
   tee --  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".
   §  2. The general business law is amended by adding a new section 399-
 nn to read as follows:
   § 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 (I) A PERSON OR  BUSINESS  THAT
 HAS  AN  ARRANGEMENT  WITH AN OEM FOR A DEFINITE OR INDEFINITE PERIOD IN
 WHICH THE OEM GRANTS TO A PERSON OR BUSINESS  LICENSE  TO  USE  A  TRADE
 NAME,  SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF OFFER-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05441-12-8

 S. 618--C                           2
 
 ING REPAIR SERVICES UNDER THE NAME OF THE OEM, OR (II) A PERSON OR BUSI-
 NESS RETAINED BY THE OEM TO PROVIDE REFURBISHING SERVICES FOR THE  OEM'S
 PRODUCT OR PRODUCTS.
   (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) "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,

 S. 618--C                           3
 
 BUT  EXCLUDING  (I)  A  MOTORCYCLE; OR (II) A RECREATIONAL VEHICLE OR AN
 AUTO HOME EQUIPPED FOR HABITATION.
   (L)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
 IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
   (M) "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.
   (N) "MANUFACTURER OF MOTOR VEHICLE EQUIPMENT" MEANS A PERSON OR  BUSI-
 NESS  ENGAGED  IN  THE BUSINESS OF MANUFACTURING OR SUPPLYING COMPONENTS
 THAT ARE USED IN THE MANUFACTURE, SERVICING OR REPAIR OF A  MOTOR  VEHI-
 CLE.
   (O)  "MEDICAL  DEVICE"  MEANS  AN  INSTRUMENT,  APPARATUS,  IMPLEMENT,
 MACHINE, CONTRIVANCE, IMPLANT, OR  OTHER  SIMILAR  OR  RELATED  ARTICLE,
 INCLUDING  A  COMPONENT  PART,  OR  ACCESSORY, AS DEFINED IN THE FEDERAL
 FOOD, DRUG AND COSMETIC ACT, 21 USC, SECTION 321  (H)  AS  AMENDED  FROM
 TIME  TO  TIME, WHICH IS INTENDED FOR USE IN THE DIAGNOSIS OF DISEASE OR
 OTHER CONDITIONS, OR IN THE CURE, MITIGATION, TREATMENT,  OR  PREVENTION
 OF DISEASE, IN MAN OR OTHER ANIMALS.
   (P) "AFTERMARKET" MEANS ANY ENTITY THAT PROVIDES SERVICE PARTS, ACCES-
 SORIES, SECOND-HAND EQUIPMENT, TOOLS, OR DIAGNOSTIC SUPPORT FOR THE CARE
 OR ENHANCEMENT OF ORIGINAL EQUIPMENT.
   2.  FOR  EQUIPMENT  AND  PARTS  SOLD OR USED IN THIS STATE IN OR AFTER
 CALENDAR YEAR TWO THOUSAND TWELVE, THE OEMS OF SUCH EQUIPMENT AND  PARTS
 SHALL  MAKE  AVAILABLE  TO  INDEPENDENT  REPAIR  PROVIDERS  OR OWNERS OF
 PRODUCTS MANUFACTURED BY SUCH OEM IN A TIMELY MANNER:
   (A) (1) DOCUMENTATION, DIAGNOSTIC AND  REPAIR  INFORMATION,  INCLUDING
 REPAIR  TECHNICAL  UPDATES,  SCHEMATIC DIAGRAMS, UPDATES, CORRECTIONS TO
 EMBEDDED SOFTWARE AND SAFETY AND SECURITY PATCHES AT NO COST OR FOR  THE
 SAME  COST  AND  IN  THE SAME FORMAT SUCH OEM MAKES SUCH INFORMATION AND
 MATERIAL AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
   (2) 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
 SHALL NOT REQUIRE AN AUTHORIZED REPAIR PROVIDER TO  PURCHASE  DOCUMENTA-
 TION,  DIAGNOSTIC,  SERVICE, OR REPAIR INFORMATION IN PROPRIETARY FORMAT
 IF SUCH INFORMATION IS  SOLD  OR  PROVIDED  TO  ANY  INDEPENDENT  REPAIR
 PROVIDER  OR  TO  ANY  OWNER IN A FORMAT THAT IS STANDARDIZED WITH OTHER
 OEMS, ON TERMS AND CONDITIONS MORE FAVORABLE THAN THE TERMS  AND  CONDI-
 TIONS  PURSUANT TO WHICH THE AUTHORIZED REPAIR PROVIDER OBTAINS THE SAME
 DIAGNOSTIC, SERVICE  OR  REPAIR  INFORMATION,  UNLESS  SUCH  PROPRIETARY
 FORMAT INCLUDES DOCUMENTATION, DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS
 INFORMATION  OR FUNCTIONALITY 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.

 S. 618--C                           4
 
 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 UNLESS THE INFORMATION NECESSARY TO RESET
 AN IMMOBILIZER SYSTEM OR SECURITY-RELATED  ELECTRONIC  MODULE  SHALL  BE
 MADE  AVAILABLE  TO 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 IF SUCH AUTHORIZED REPAIR  AGREEMENT  IS
 EXECUTED OR EXTENDED ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION.
   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, MANUFACTURER  OF
 MOTOR  VEHICLE  EQUIPMENT,  OR  MOTOR VEHICLE DEALERS AS DEFINED IN THIS
 SECTION.
   7. NOTHING IN THIS SECTION SHALL REQUIRE A MANUFACTURER OF  A  MEDICAL
 DEVICE  AS  DEFINED  IN  THIS SECTION TO IMPLEMENT ANY PROVISION OF THIS
 SECTION THAT IS NOT PERMITTED UNDER THE FEDERAL FOOD, DRUG AND  COSMETIC
 ACT  OR  ANY  OTHER FEDERAL LAW, RULE OR REGULATION THAT SUPERSEDES THIS
 SECTION.
   8. 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

 S. 618--C                           5
 
   (E)  SUCH  INDEPENDENT  REPAIR  PROVIDER  IS  NOT AN AUTHORIZED REPAIR
 PROVIDER FOR SUCH DIGITAL ELECTRONIC EQUIPMENT.
   9.  (A)  WHENEVER  THE  ATTORNEY  GENERAL  SHALL BELIEVE FROM EVIDENCE
 SATISFACTORY TO HIM OR HER THAT ANY PERSON, FIRM, CORPORATION OR ASSOCI-
 ATION 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 OR SHE
 MAY BRING A PROCEEDING 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  INDI-
 RECTLY  BY  ANY  SUCH ACTS OR PRACTICES IN VIOLATION OF THIS SECTION. IN
 SUCH PROCEEDING PRELIMINARY RELIEF MAY BE GRANTED UNDER  ARTICLE  SIXTY-
 THREE OF THE CIVIL PRACTICE LAW AND RULES.
   (B) EXCEPT AS PROVIDED HEREIN, BEFORE ANY VIOLATION OF THIS SECTION IS
 SOUGHT  TO  BE  ENJOINED,  THE  ATTORNEY  GENERAL  SHALL GIVE THE PERSON
 AGAINST WHOM SUCH PROCEEDING IS CONTEMPLATED NOTICE AND  AN  OPPORTUNITY
 TO SHOW IN WRITING, WITHIN FIVE BUSINESS DAYS AFTER THE DELIVERY OF SUCH
 NOTICE,  WHY  A PROCEEDING SHOULD NOT BE INSTITUTED AGAINST SUCH PERSON.
 SUCH NOTICE BY THE ATTORNEY GENERAL SHALL BE DELIVERED BY CERTIFIED MAIL
 AND BY FIRST-CLASS MAIL WITH PROOF OF MAILING. IN A PROCEEDING IN  WHICH
 THE  ATTORNEY GENERAL SEEKS PRELIMINARY RELIEF, SUCH NOTICE SHALL NOT BE
 REQUIRED UPON A FINDING BY THE ATTORNEY GENERAL THAT SUCH NOTICE 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.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

Senate Bill S618C

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

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2017-S618 - Details

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Senate Bill S618C

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Sponsored By

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Bill Amendments

co-Sponsors

2017-S618 - Details

2017-S618 - Summary

2017-S618 - Sponsor Memo

2017-S618 - Bill Text download pdf

co-Sponsors

2017-S618A - Details

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2017-S618B - Details

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2017-S618C (ACTIVE) - Details

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2017-S618C (ACTIVE) - Sponsor Memo

2017-S618C (ACTIVE) - Bill Text download pdf

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