Bill Text: NY S03998 | 2015-2016 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2016-06-06 - COMMITTEE DISCHARGED AND COMMITTED TO RULES [S03998 Detail]

Download: New_York-2015-S03998-Amended.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        3998--A
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   February 25, 2015
                                      ___________
       Introduced  by  Sens.  BOYLE,  ADDABBO,  AVELLA, CROCI, PERALTA, ROBACH,
         SAMPSON -- read twice and ordered printed,  and  when  printed  to  be
         committed  to  the  Committee  on  Consumer  Protection  --  committee
         discharged, bill amended, ordered reprinted as amended and recommitted
         to said committee
       AN ACT to amend the general business law, in relation  to  the  sale  of
         digital electronic equipment diagnostic and repair information
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Short title. This act shall be known and may  be  cited  as
    2  the "fair repair act".
    3    S  2. The general business law is amended by adding a new section 399-
    4  nn to read as follows:
    5    S 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC  AND  REPAIR
    6  INFORMATION.  1.  DEFINITIONS.    FOR  THE PURPOSES OF THIS SECTION, THE
    7  FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
    8    (A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM"  MEANS  ANY  PERSON  OR
    9  BUSINESS  WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
   10  BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
   11  OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE  DIAGNOSIS,
   12  SERVICE,  MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
   13  OF SUCH EQUIPMENT.
   14    (B) "AUTHORIZED REPAIR PROVIDER" MEANS A PERSON OR BUSINESS  THAT  HAS
   15  AN  ARRANGEMENT  FOR  A  DEFINITE  OR  INDEFINITE PERIOD IN WHICH AN OEM
   16  GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE TO  USE
   17  A TRADE NAME, SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF
   18  OFFERING REPAIR SERVICES UNDER THE NAME OF THE OEM.
   19    (C) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
   20  IN  THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH AN OEM OR AN OEM'S
   21  AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS,  SERVICE,
   22  MAINTENANCE  OR  REPAIR  OF  EQUIPMENT; PROVIDED, HOWEVER, THAT, FOR THE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07386-05-5
       S. 3998--A                          2
    1  PURPOSES OF THIS SECTION, AN OEM  SHALL  BE  CONSIDERED  AN  INDEPENDENT
    2  REPAIR  PROVIDER  FOR  THE  PURPOSES  OF  THOSE  INSTANCES WHEN SUCH OEM
    3  ENGAGES IN THE DIAGNOSIS, SERVICE,  MAINTENANCE  OR  REPAIR  OF  DIGITAL
    4  EQUIPMENT THAT IS NOT AFFILIATED WITH THE OEM.
    5    (D)  "OWNER"  MEANS  A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
    6  ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
    7    (E) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT,  OR
    8  SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
    9  THE PURPOSES OF EFFECTING REPAIR.
   10    (F)  "DIGITAL  ELECTRONIC  EQUIPMENT"  OR  "EQUIPMENT" MEANS A PART OR
   11  EQUIPMENT ORIGINALLY MANUFACTURED  FOR  DISTRIBUTION  AND  SALE  IN  THE
   12  UNITED STATES.
   13    (G)  "EMBEDDED  SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
   14  ON FIRMWARE DELIVERED WITH THE EQUIPMENT OR PART  FOR  THE  PURPOSES  OF
   15  EQUIPMENT  OPERATION,  INCLUDING  ALL RELEVANT PATCHES AND FIXES MADE BY
   16  THE MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED  TO  SYNO-
   17  NYMS  "BASIC  INTERNAL  OPERATING  SYSTEM", "INTERNAL OPERATING SYSTEM",
   18  "MACHINE CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
   19    (H) "DATA SECURITY FEATURE" MEANS ANY FEATURE  OF  EQUIPMENT  DESIGNED
   20  FOR  THE  SOLE PURPOSE OF PREVENTING THE USE OF EQUIPMENT IN WHICH IT IS
   21  INSTALLED FROM STARTING WITHOUT THE CORRECT ACTIVATION OR  AUTHORIZATION
   22  CODE.
   23    (I)  "REMOTE  DIAGNOSTICS"  MEANS  ANY  REMOTE  DATA TRANSFER FUNCTION
   24  BETWEEN EQUIPMENT AND THE PROVIDER  OF  REPAIR  SERVICES  INCLUDING  FOR
   25  PURPOSES  OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR LOCATION IDENTIFI-
   26  CATION.
   27    (J) "SERVICE PARTS" OR "PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW
   28  OR USED, MADE AVAILABLE BY THE OEM TO THE AUTHORIZED REPAIR PROVIDER FOR
   29  THE PURPOSES OF EFFECTING REPAIR.
   30    (K) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN  LIGHT  OF
   31  RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
   32    (I)  THE NET COST TO THE AUTHORIZED REPAIR PROVIDER FOR SIMILAR INFOR-
   33  MATION OBTAINED FROM AN OEM,  LESS  ANY  DISCOUNTS,  REBATES,  OR  OTHER
   34  INCENTIVE PROGRAMS;
   35    (II)  THE  COST TO THE OEM FOR PREPARING AND DISTRIBUTING THE INFORMA-
   36  TION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN DESIGNING
   37  AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT INCLUDING AMOR-
   38  TIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION OF THE INFORMA-
   39  TION;
   40    (III) THE PRICE CHARGED BY OTHER OEMS FOR SIMILAR INFORMATION;
   41    (IV) THE PRICE CHARGED BY OEMS FOR SIMILAR INFORMATION  PRIOR  TO  THE
   42  LAUNCH OF OEM WEB SITES;
   43    (V)  THE  ABILITY  OF  AFTERMARKET  TECHNICIANS OR SHOPS TO AFFORD THE
   44  INFORMATION;
   45    (VI) THE MEANS BY WHICH THE INFORMATION IS DISTRIBUTED;
   46    (VII) THE EXTENT TO WHICH THE INFORMATION IS USED, WHICH INCLUDES  THE
   47  NUMBER OF USERS, AND FREQUENCY, DURATION, AND VOLUME OF USE; AND
   48    (VIII) INFLATION.
   49    (L)  "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR ELECTRON-
   50  ICALLY STORED  OR  KEPT  WHICH  CONSTITUTES,  REPRESENTS,  EVIDENCES  OR
   51  RECORDS  INTELLECTUAL  PROPERTY  INCLUDING SECRET OR CONFIDENTIALLY HELD
   52  DESIGNS, PROCESSES, PROCEDURES, FORMULAS, INVENTIONS OR IMPROVEMENTS, OR
   53  SECRET OR  CONFIDENTIALLY  HELD  SCIENTIFIC,  TECHNICAL,  MERCHANDISING,
   54  PRODUCTION,  FINANCIAL,  BUSINESS OR MANAGEMENT INFORMATION, OR ANYTHING
   55  WITHIN THE DEFINITION OF PARAGRAPH THREE OF SECTION 1839 OF TITLE  EIGH-
   56  TEEN OF THE UNITED STATES CODE.
       S. 3998--A                          3
    1    (M)  "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
    2  ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED  BY
    3  THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
    4  DARDS  AND  REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
    5  BUT  EXCLUDING  (I)  A  MOTORCYCLE;  (II) A VEHICLE WITH A GROSS VEHICLE
    6  WEIGHT OVER 14,000 POUNDS; OR (III) A RECREATIONAL VEHICLE  OR  AN  AUTO
    7  HOME EQUIPPED FOR HABITATION.
    8    (N)  "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
    9  IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
   10    (O) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS  WHO,  IN  THE
   11  ORDINARY  COURSE  OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
   12  OR LEASING NEW MOTOR VEHICLES TO A PERSON  OR  BUSINESS  PURSUANT  TO  A
   13  FRANCHISE  AGREEMENT  AND  WHO HAS OBTAINED A LICENSE, AS REQUIRED UNDER
   14  APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
   15  REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
   16  CHISE AGREEMENT.
   17    2. (A) FOR EQUIPMENT AND PARTS SOLD AND USED IN THIS STATE,  THE  OEMS
   18  OF  SUCH  EQUIPMENT  AND  PARTS (I) MAKE AVAILABLE TO INDEPENDENT REPAIR
   19  PROVIDERS OR OWNERS OF PRODUCTS MANUFACTURED BY SUCH OEM DIAGNOSTIC  AND
   20  REPAIR  INFORMATION,  INCLUDING  REPAIR  TECHNICAL  UPDATES, UPDATES AND
   21  CORRECTIONS TO EMBEDDED SOFTWARE FOR NO CHARGE OR  IN  THE  SAME  MANNER
   22  SUCH OEM MAKES AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
   23    (II)  MAKE  AVAILABLE  FOR PURCHASE BY THE EQUIPMENT OWNER, HIS OR HER
   24  AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
   25  UPDATES TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND  REASONABLE
   26  TERMS.  NOTHING  IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO SELL PARTS
   27  IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
   28  PROVIDER OF THE OEM.
   29    (B) ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR  INFORMATION
   30  TO  ANY  INDEPENDENT REPAIR PROVIDER OR TO ANY OWNER IN A FORMAT THAT IS
   31  STANDARDIZED WITH OTHER OEMS, AND ON TERMS AND CONDITIONS MORE FAVORABLE
   32  THAN THE MANNER AND THE TERMS  AND  CONDITIONS  PURSUANT  TO  WHICH  THE
   33  AUTHORIZED  REPAIR  PROVIDER  OBTAINS  THE  SAME  DIAGNOSTIC, SERVICE OR
   34  REPAIR INFORMATION, SHALL BE PROHIBITED FROM  REQUIRING  ANY  AUTHORIZED
   35  REPAIR  PROVIDER  TO  CONTINUE PURCHASING DIAGNOSTIC, SERVICE, OR REPAIR
   36  INFORMATION IN A PROPRIETARY  FORMAT,  UNLESS  SUCH  PROPRIETARY  FORMAT
   37  INCLUDES  DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS INFORMATION OR FUNC-
   38  TIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED FORMAT.
   39    (C) EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK  SHALL
   40  MAKE  AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES
   41  ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE  SAME  DIAGNOSTIC,  REPAIR
   42  AND  REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE TO
   43  ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED  REPAIR  PROVIDER.
   44  EACH  OEM  SHALL  OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT
   45  REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
   46    EACH OEM THAT PROVIDES DIAGNOSTIC REPAIR  INFORMATION  TO  AFTERMARKET
   47  TOOL,  DIAGNOSTICS,  OR THIRD PARTY SERVICE INFORMATION PUBLICATIONS AND
   48  SYSTEMS SHALL HAVE FULLY SATISFIED ITS OBLIGATIONS  UNDER  THIS  SECTION
   49  AND  THEREAFTER  NOT BE RESPONSIBLE FOR THE CONTENT AND FUNCTIONALITY OF
   50  AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
   51    (D) OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW  YORK  FOR
   52  THE  PURPOSE  OF  PROVIDING  SECURITY-RELATED  FUNCTIONS MAY NOT EXCLUDE
   53  DIAGNOSTIC, SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A  SECURI-
   54  TY-RELATED  ELECTRONIC  FUNCTION FROM INFORMATION PROVIDED TO OWNERS AND
   55  INDEPENDENT REPAIR FACILITIES.  IF EXCLUDED UNDER  THIS  PARAGRAPH,  THE
   56  INFORMATION NECESSARY TO RESET AN IMMOBILIZER SYSTEM OR SECURITY-RELATED
       S. 3998--A                          4
    1  ELECTRONIC  MODULE  SHALL  BE  OBTAINED BY OWNERS AND INDEPENDENT REPAIR
    2  FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE SYSTEMS.
    3    3.  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO REQUIRE AN OEM TO
    4  DIVULGE A TRADE SECRET.
    5    4. NOTWITHSTANDING ANY LAW, RULE OR REGULATION  TO  THE  CONTRARY,  NO
    6  PROVISION  IN  THIS  SECTION  SHALL BE READ, INTERPRETED OR CONSTRUED TO
    7  ABROGATE, INTERFERE WITH, CONTRADICT OR ALTER THE TERMS OF ANY AGREEMENT
    8  EXECUTED AND IN FORCE BETWEEN AN AUTHORIZED REPAIR PROVIDER AND  AN  OEM
    9  INCLUDING,  BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF WARRANTY
   10  OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF  OF  AN
   11  OEM  PURSUANT  TO  SUCH  AUTHORIZED REPAIR AGREEMENT; PROVIDED, HOWEVER,
   12  THAT ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT  PURPORTS
   13  TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
   14  SHALL BE VOID AND UNENFORCEABLE.
   15    5.  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO REQUIRE OEMS OR
   16  AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER  OR  INDEPENDENT  REPAIR
   17  PROVIDER  ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY AN
   18  OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
   19  IZING AGREEMENT.
   20    6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
   21  ANY PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER OR MOTOR  VEHICLE
   22  DEALERS AS DEFINED IN THIS SECTION.
   23    7.  (A)  WHENEVER  THE  ATTORNEY  GENERAL  SHALL BELIEVE FROM EVIDENCE
   24  SATISFACTORY TO HIM THAT ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR
   25  AGENT OR EMPLOYEE THEREOF HAS ENGAGED IN OR IS ABOUT TO ENGAGE IN ANY OF
   26  THE ACTS OR PRACTICES IN VIOLATION OF  THIS  SECTION  HE  MAY  BRING  AN
   27  ACTION  IN THE NAME AND ON BEHALF OF THE PEOPLE OF THE STATE OF NEW YORK
   28  TO ENJOIN SUCH UNLAWFUL ACTS OR PRACTICES AND TO OBTAIN  RESTITUTION  OF
   29  ANY  MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH ACTS
   30  OR PRACTICES IN VIOLATION OF THIS SECTION. IN  SUCH  ACTION  PRELIMINARY
   31  RELIEF  MAY  BE  GRANTED UNDER ARTICLE SIXTY-THREE OF THE CIVIL PRACTICE
   32  LAW AND RULES.
   33    (B) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
   34  ATTORNEY GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM  SUCH
   35  PROCEEDING  IS  CONTEMPLATED NOTICE BY CERTIFIED MAIL AND AN OPPORTUNITY
   36  TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
   37  PROCEEDINGS SHOULD NOT BE INSTITUTED AGAINST HIM,  UNLESS  THE  ATTORNEY
   38  GENERAL  SHALL  FIND,  IN ANY CASE IN WHICH HE SEEKS PRELIMINARY RELIEF,
   39  THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
   40    (C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
   41  ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
   42  THE RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE  CIVIL
   43  PRACTICE LAW AND RULES.
   44    (D)  THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED TO
   45  BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
   46  OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
   47  THIS STATE UNDER WHICH THE ATTORNEY GENERAL IS AUTHORIZED  TO  TAKE  ANY
   48  ACTION OR CONDUCT ANY INQUIRY.
   49    (E)  ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR EMPLOYEE
   50  THEREOF WHO ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE  IN  VIOLATION
   51  OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
   52  HUNDRED  DOLLARS  FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE STATE OF
   53  NEW YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE  ATTORNEY
   54  GENERAL.
   55    (F)  EXCEPT  IN  THE INSTANCE OF A DISPUTE ARISING BETWEEN AN ORIGINAL
   56  EQUIPMENT MANUFACTURER AND ITS AUTHORIZED  REPAIR  PROVIDER  RELATED  TO
       S. 3998--A                          5
    1  EITHER  PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR AGREEMENT,
    2  AN AUTHORIZED REPAIR PROVIDER SHALL HAVE ALL  THE  RIGHTS  AND  REMEDIES
    3  PROVIDED IN THIS SECTION.
    4    S  2.  This  act  shall take effect on the sixtieth day after it shall
    5  have become a law.