S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7416--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                May 1, 2019
                                ___________
 
 Introduced  by  M.  of  A.  LUPARDO, LENTOL, SCHIMMINGER, D'URSO, ORTIZ,
   DICKENS, REYES, CROUCH,  MAGNARELLI,  GLICK,  SIMON,  GUNTHER,  BLAKE,
   GOTTFRIED,  ASHBY  -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, COOK,
   ENGLEBRIGHT, GIGLIO, SIMOTAS -- read once and referred to the  Commit-
   tee  on  Consumer Affairs and 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  and  providing  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 "digital 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) "AUTHORIZED REPAIR PROVIDER" MEANS AN INDIVIDUAL OR  BUSINESS  WHO
 IS  UNAFFILIATED  WITH AN ORIGINAL EQUIPMENT MANUFACTURER AND WHO HAS AN
 ARRANGEMENT WITH THE ORIGINAL EQUIPMENT MANUFACTURER, FOR A DEFINITE  OR
 INDEFINITE  PERIOD,  UNDER  WHICH  THE  ORIGINAL  EQUIPMENT MANUFACTURER
 GRANTS TO THE INDIVIDUAL OR BUSINESS A LICENSE  TO  USE  A  TRADE  NAME,
 SERVICE MARK, OR OTHER PROPRIETARY IDENTIFIER FOR THE PURPOSES OF OFFER-
 ING  THE  SERVICES OF DIAGNOSIS, MAINTENANCE, OR REPAIR OF DIGITAL ELEC-
 TRONIC EQUIPMENT UNDER THE NAME OF THE ORIGINAL EQUIPMENT  MANUFACTURER,
 OR  OTHER  ARRANGEMENT WITH THE ORIGINAL EQUIPMENT MANUFACTURER TO OFFER
 SUCH SERVICES ON BEHALF  OF  THE  ORIGINAL  EQUIPMENT  MANUFACTURER.  AN
 ORIGINAL  EQUIPMENT  MANUFACTURER  WHO OFFERS THE SERVICES OF DIAGNOSIS,
 MAINTENANCE, OR REPAIR OF ITS OWN DIGITAL ELECTRONIC EQUIPMENT, AND  WHO
 DOES NOT HAVE AN ARRANGEMENT DESCRIBED IN THIS SUBDIVISION WITH AN UNAF-
 FILIATED  INDIVIDUAL  OR  BUSINESS,  SHALL  BE  CONSIDERED AN AUTHORIZED
 REPAIR PROVIDER WITH RESPECT TO SUCH EQUIPMENT.
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11026-02-9

 A. 7416--A                          2
 
   (B) "DIGITAL ELECTRONIC EQUIPMENT" OR "EQUIPMENT"  MEANS  ANY  PRODUCT
 THAT  DEPENDS FOR ITS FUNCTIONING, IN WHOLE OR IN PART, ON DIGITAL ELEC-
 TRONICS EMBEDDED IN OR ATTACHED TO THE PRODUCT.
   (C)  "DOCUMENTATION"  MEANS  ANY  MANUAL,  DIAGRAM,  REPORTING OUTPUT,
 SERVICE CODE DESCRIPTION, SCHEMATIC DIAGRAM, OR SIMILAR KINDS OF  INFOR-
 MATION  PROVIDED  TO  AN  AUTHORIZED REPAIR PROVIDER FOR PURPOSES OF ITS
 EFFECTING THE SERVICES OF DIAGNOSIS, MAINTENANCE, OR REPAIR  OF  DIGITAL
 ELECTRONIC EQUIPMENT.
   (D)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
 ON FIRMWARE DELIVERED WITH DIGITAL ELECTRONIC EQUIPMENT, OR WITH A  PART
 FOR  SUCH  EQUIPMENT, FOR PURPOSES OF EQUIPMENT OPERATION, INCLUDING ALL
 RELEVANT PATCHES AND FIXES MADE BY THE MANUFACTURER OF SUCH EQUIPMENT OR
 PART FOR THESE PURPOSES.
   (E) "FAIR AND REASONABLE TERMS"  FOR  OBTAINING  A  PART  OR  TOOL  OR
 DOCUMENTATION  MEANS AT COSTS AND TERMS, INCLUDING CONVENIENCE OF DELIV-
 ERY, AND INCLUDING RIGHTS OF USE, EQUIVALENT TO WHAT IS OFFERED  BY  THE
 ORIGINAL  EQUIPMENT MANUFACTURER TO AN AUTHORIZED REPAIR PROVIDER, USING
 THE NET COSTS THAT WOULD BE INCURRED BY AN AUTHORIZED REPAIR PROVIDER IN
 OBTAINING AN EQUIVALENT PART OR TOOL OR DOCUMENTATION FROM THE  ORIGINAL
 EQUIPMENT  MANUFACTURER, ACCOUNTING FOR ANY DISCOUNTS, REBATES, OR OTHER
 INCENTIVE PROGRAMS IN ARRIVING AT THE ACTUAL NET COSTS.  FOR  DOCUMENTA-
 TION,  INCLUDING ANY RELEVANT UPDATES, "FAIR AND REASONABLE TERMS" MEANS
 AT NO CHARGE, EXCEPT THAT, WHEN THE DOCUMENTATION IS REQUESTED IN  PHYS-
 ICAL  PRINTED  FORM,  A CHARGE MAY BE INCLUDED FOR THE REASONABLE ACTUAL
 COSTS OF PREPARING AND SENDING THE COPY.
   (F) "FIRMWARE"  MEANS  A  SOFTWARE  PROGRAM  OR  SET  OF  INSTRUCTIONS
 PROGRAMMED ON DIGITAL ELECTRONIC EQUIPMENT, OR ON A PART FOR SUCH EQUIP-
 MENT,  TO ALLOW THE EQUIPMENT OR PART TO COMMUNICATE WITH OTHER COMPUTER
 HARDWARE.
   (G) "INDEPENDENT REPAIR PROVIDER"  MEANS  AN  INDIVIDUAL  OR  BUSINESS
 OPERATING  IN  THIS STATE, WHO DOES NOT HAVE AN ARRANGEMENT DESCRIBED IN
 PARAGRAPH (A) OF THIS SUBDIVISION WITH AN ORIGINAL EQUIPMENT MANUFACTUR-
 ER, AND WHO IS NOT AFFILIATED WITH ANY INDIVIDUAL OR  BUSINESS  WHO  HAS
 SUCH  AN  ARRANGEMENT,  AND WHO IS ENGAGED IN THE SERVICES OF DIAGNOSIS,
 MAINTENANCE, OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT, EXCEPT  THAT  AN
 ORIGINAL EQUIPMENT MANUFACTURER OR, WITH RESPECT TO THAT ORIGINAL EQUIP-
 MENT MANUFACTURER, AN INDIVIDUAL OR BUSINESS WHO HAS SUCH AN ARRANGEMENT
 WITH  THAT ORIGINAL EQUIPMENT MANUFACTURER, OR WHO IS AFFILIATED WITH AN
 INDIVIDUAL OR BUSINESS WHO HAS SUCH AN ARRANGEMENT  WITH  THAT  ORIGINAL
 EQUIPMENT  MANUFACTURER,  SHALL  BE  CONSIDERED  AN  INDEPENDENT  REPAIR
 PROVIDER FOR PURPOSES OF THOSE INSTANCES IN  WHICH  IT  ENGAGES  IN  THE
 SERVICES  OF DIAGNOSIS, MAINTENANCE, OR REPAIR OF THE DIGITAL ELECTRONIC
 EQUIPMENT THAT IS NOT MANUFACTURED BY OR SOLD UNDER  THE  NAME  OF  THAT
 ORIGINAL EQUIPMENT MANUFACTURER.
   (H) "MANUFACTURER OF MOTOR VEHICLE EQUIPMENT" MEANS A BUSINESS ENGAGED
 IN  THE  BUSINESS OF MANUFACTURING OR SUPPLYING COMPONENTS THAT ARE USED
 IN THE MANUFACTURE, MAINTENANCE, OR REPAIR OF A MOTOR VEHICLE.
   (I)  "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.
   (J) "MOTOR VEHICLE" MEANS A VEHICLE THAT IS DESIGNED FOR  TRANSPORTING
 PERSONS  OR  PROPERTY  ON  A  STREET  OR HIGHWAY AND IS CERTIFIED BY THE

 A. 7416--A                          3
 
 MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STANDARDS
 AND REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED  STATES.  MOTOR
 VEHICLE  DOES NOT INCLUDE: (1) A MOTORCYCLE; OR (2) A RECREATIONAL VEHI-
 CLE OR AN AUTO HOME EQUIPPED FOR HABITATION.
   (K) "MOTOR VEHICLE DEALER" MEANS AN INDIVIDUAL OR BUSINESS WHO, IN THE
 ORDINARY  COURSE  OF  BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING OR
 LEASING NEW MOTOR VEHICLES TO AN INDIVIDUAL OR BUSINESS  PURSUANT  TO  A
 FRANCHISE  AGREEMENT, HAS OBTAINED A LICENSE UNDER THE VEHICLE AND TRAF-
 FIC LAW, AND IS ENGAGED IN THE SERVICES OF  DIAGNOSIS,  MAINTENANCE,  OR
 REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SUCH FRAN-
 CHISE AGREEMENT.
   (L) "MOTOR VEHICLE MANUFACTURER" MEANS A BUSINESS ENGAGED IN THE MANU-
 FACTURING OR ASSEMBLING OF NEW MOTOR VEHICLES.
   (M)  "ORIGINAL EQUIPMENT MANUFACTURER" MEANS A BUSINESS ENGAGED IN THE
 BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT MANUFAC-
 TURED BY OR ON BEHALF OF ITSELF, TO ANY INDIVIDUAL OR BUSINESS.
   (N) "OWNER" MEANS AN INDIVIDUAL OR BUSINESS WHO OWNS OR LEASES DIGITAL
 ELECTRONIC EQUIPMENT PURCHASED OR USED IN THIS STATE.
   (O) "PART" MEANS ANY REPLACEMENT PART, EITHER NEW OR USED, MADE AVAIL-
 ABLE BY AN ORIGINAL EQUIPMENT MANUFACTURER FOR PURPOSES OF EFFECTING THE
 SERVICES OF MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT  MANU-
 FACTURED OR SOLD BY THE ORIGINAL EQUIPMENT MANUFACTURER.
   2.  REQUIREMENTS.  (A) FOR DIGITAL ELECTRONIC EQUIPMENT, AND PARTS FOR
 SUCH EQUIPMENT, SOLD OR  USED  IN  THIS  STATE,  AN  ORIGINAL  EQUIPMENT
 MANUFACTURER  SHALL  MAKE  AVAILABLE, FOR PURPOSES OF DIAGNOSIS, MAINTE-
 NANCE, OR REPAIR, TO ANY INDEPENDENT REPAIR PROVIDER, OR TO THE OWNER OF
 DIGITAL ELECTRONIC EQUIPMENT MANUFACTURED BY OR ON BEHALF  OF,  OR  SOLD
 BY,  THE  ORIGINAL EQUIPMENT MANUFACTURER, ON FAIR AND REASONABLE TERMS,
 DOCUMENTATION, PARTS, AND TOOLS, INCLUSIVE OF ANY UPDATES TO INFORMATION
 OR EMBEDDED SOFTWARE. NOTHING  IN  THIS  SECTION  REQUIRES  AN  ORIGINAL
 EQUIPMENT MANUFACTURER TO MAKE AVAILABLE A PART IF THE PART IS NO LONGER
 AVAILABLE TO THE ORIGINAL EQUIPMENT MANUFACTURER.
   (B)  FOR  EQUIPMENT THAT CONTAINS AN ELECTRONIC SECURITY LOCK OR OTHER
 SECURITY-RELATED FUNCTION, THE  ORIGINAL  EQUIPMENT  MANUFACTURER  SHALL
 MAKE AVAILABLE TO THE OWNER AND TO INDEPENDENT REPAIR PROVIDERS, ON FAIR
 AND REASONABLE TERMS, ANY SPECIAL DOCUMENTATION, TOOLS, AND PARTS NEEDED
 TO  RESET THE LOCK OR FUNCTION WHEN DISABLED IN THE COURSE OF DIAGNOSIS,
 MAINTENANCE, OR REPAIR OF THE EQUIPMENT.  SUCH DOCUMENTATION, TOOLS, AND
 PARTS MAY BE MADE AVAILABLE THROUGH APPROPRIATE SECURE RELEASE SYSTEMS.
   3. LIMITATIONS. (A) NOTHING IN THIS  SECTION  SHALL  BE  CONSTRUED  TO
 REQUIRE  AN ORIGINAL EQUIPMENT MANUFACTURER TO DIVULGE A TRADE SECRET TO
 AN OWNER OR AN INDEPENDENT SERVICE PROVIDER.
   (B) NO PROVISION IN THIS SECTION SHALL BE CONSTRUED TO ALTER THE TERMS
 OF ANY ARRANGEMENT DESCRIBED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS
 SECTION IN FORCE BETWEEN AN AUTHORIZED REPAIR PROVIDER AND  AN  ORIGINAL
 EQUIPMENT  MANUFACTURER,  INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE
 OR PROVISION OF WARRANTY OR RECALL REPAIR WORK BY AN  AUTHORIZED  REPAIR
 PROVIDER  ON  BEHALF  OF  AN ORIGINAL EQUIPMENT MANUFACTURER PURSUANT TO
 SUCH ARRANGEMENT, EXCEPT THAT ANY PROVISION IN SUCH TERMS THAT  PURPORTS
 TO  WAIVE,  AVOID, RESTRICT, OR LIMIT THE ORIGINAL EQUIPMENT MANUFACTUR-
 ER'S OBLIGATIONS TO COMPLY WITH THIS SECTION SHALL  BE  VOID  AND  UNEN-
 FORCEABLE.
   (C)  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE AN ORIGINAL
 EQUIPMENT MANUFACTURER OR AN AUTHORIZED REPAIR PROVIDER TO PROVIDE TO AN
 OWNER OR INDEPENDENT REPAIR PROVIDER ACCESS TO INFORMATION,  OTHER  THAN
 DOCUMENTATION,  THAT  IS PROVIDED BY THE ORIGINAL EQUIPMENT MANUFACTURER

 A. 7416--A                          4
 
 TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN ARRANGEMENT
 DESCRIBED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION.
   4. EXCLUSIONS. NOTHING IN THIS SECTION SHALL APPLY TO:
   (A) A MOTOR VEHICLE MANUFACTURER, MANUFACTURER OF MOTOR VEHICLE EQUIP-
 MENT, OR MOTOR VEHICLE DEALER ACTING IN SUCH CAPACITY, OR TO ANY PRODUCT
 OR  SERVICE OF A MOTOR VEHICLE MANUFACTURER, MANUFACTURER OF MOTOR VEHI-
 CLE EQUIPMENT, OR MOTOR VEHICLE DEALER ACTING IN SUCH CAPACITY.
   (B) A MEDICAL DEVICE, AS DEFINED IN THIS SECTION, OR A  DIGITAL  ELEC-
 TRONIC PRODUCT OR EMBEDDED SOFTWARE FOUND IN A MEDICAL SETTING INCLUDING
 DIAGNOSTIC,  MONITORING,  OR CONTROL EQUIPMENT OR ANY PRODUCT OR SERVICE
 THAT THEY OFFER.
   5. ENFORCEMENT BY ATTORNEY GENERAL. (A) WHENEVER THE ATTORNEY  GENERAL
 SHALL  BELIEVE FROM EVIDENCE SATISFACTORY TO HIM OR HER 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 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 INDIRECTLY 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 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 one hundred twentieth day after
 it  shall  have  become  a law and shall apply with respect to equipment
 sold or in use on or after such date.