S T A T E O F N E W Y O R K
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4253
2015-2016 Regular Sessions
I N A S S E M B L Y
January 29, 2015
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Introduced by M. of A. DenDEKKER -- read once and referred to the
Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to file-sharing
applications
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new section
349-f to read as follows:
S 349-F. FILE-SHARING APPLICATIONS. 1. FOR THE PURPOSE OF THIS
SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "COVERED FILE-SHARING PROGRAM" MEANS A COMPUTER PROGRAM, APPLICA-
TION, OR SOFTWARE THAT IS MARKETED OR DISTRIBUTED TO THE PUBLIC AND THAT
ENABLES: (I) A FILE OR FILES ON THE COMPUTER ON WHICH SUCH PROGRAM,
APPLICATION, OR SOFTWARE IS INSTALLED TO BE DESIGNATED AS AVAILABLE FOR
SEARCHING BY AND COPYING TO ONE OR MORE OTHER COMPUTERS; (II) THE TRANS-
MISSION OF SUCH DESIGNATED FILES DIRECTLY TO ONE OR MORE OTHER COMPUT-
ERS; AND (III) A USER TO REQUEST THE TRANSMISSION OF SUCH DESIGNATED
FILES DIRECTLY FROM ONE OR MORE OTHER COMPUTERS. COVERED FILE-SHARING
PROGRAM DOES NOT MEAN A PROGRAM, APPLICATION OR SOFTWARE DESIGNED PRIMA-
RILY TO OPERATE AS A SERVER THAT IS ACCESSIBLE OVER THE INTERNET USING
THE INTERNET DOMAIN NAME SYSTEM, TO TRANSMIT OR RECEIVE EMAIL MESSAGES,
INSTANT MESSAGING, REAL-TIME AUDIO OR VIDEO COMMUNICATIONS, OR REAL-TIME
VOICE COMMUNICATIONS, OR TO PROVIDE NETWORK OR COMPUTER SECURITY,
NETWORK MANAGEMENT, HOSTING AND BACKUP SERVICES, MAINTENANCE, DIAGNOS-
TICS, TECHNICAL SUPPORT OR REPAIR, OR TO DETECT OR PREVENT FRAUDULENT
ACTIVITIES.
(B) "COVERED ENTITY" MEANS: (I) A PERSON, PARTNERSHIP, FIRM, ASSOCI-
ATION, OR CORPORATION THAT DEVELOPS A COVERED FILE-SHARING PROGRAM; AND
(II) A PERSON, PARTNERSHIP, FIRM, ASSOCIATION, OR CORPORATION THAT
DISSEMINATES OR DISTRIBUTES A COVERED FILE-SHARING PROGRAM AND IS OWNED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03818-01-5
A. 4253 2
OR OPERATED BY THE PERSON, PARTNERSHIP, FIRM, ASSOCIATION, OR CORPO-
RATION THAT DEVELOPED THE COVERED FILE-SHARING PROGRAM.
2. (A) IT SHALL BE UNLAWFUL FOR ANY COVERED ENTITY TO INSTALL ON ANY
COMPUTER, OTHER THAN A COMPUTER OWNED BY SUCH ENTITY, OR OFFER OR MAKE
AVAILABLE FOR INSTALLATION OR DOWNLOAD ON ANY COMPUTER A COVERED
FILE-SHARING PROGRAM UNLESS SUCH PROGRAM:
(I) IMMEDIATELY PRIOR TO THE INSTALLATION OR DOWNLOADING OF SUCH
PROGRAM:
(A) PROVIDES CLEAR AND CONSPICUOUS NOTICE THAT SUCH PROGRAM ALLOWS
FILES ON THE COMPUTER TO BE MADE AVAILABLE FOR SEARCHING BY AND COPYING
TO ONE OR MORE OTHER COMPUTERS; AND
(B) OBTAINS THE INFORMED CONSENT TO THE INSTALLATION OF SUCH PROGRAM
FROM AN OWNER OR AUTHORIZED USER OF THE COMPUTER; AND
(II) IMMEDIATELY PRIOR TO INITIAL ACTIVATION OF A FILE-SHARING FUNC-
TION OF SUCH PROGRAM:
(A) PROVIDES CLEAR AND CONSPICUOUS NOTICE OF WHICH FILES ON THE
COMPUTER ARE TO BE MADE AVAILABLE FOR SEARCHING BY AND COPYING TO ANOTH-
ER COMPUTER; AND
(B) OBTAINS THE INFORMED CONSENT FROM AN OWNER OR AUTHORIZED USER OF
THE COMPUTER FOR SUCH FILES TO BE MADE AVAILABLE FOR SEARCHING AND COPY-
ING TO ANOTHER COMPUTER.
(B) NOTHING IN SUBPARAGRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION
SHALL APPLY TO THE INSTALLATION OF A COVERED FILE-SHARING PROGRAM ON A
COMPUTER PRIOR TO THE FIRST SALE OF SUCH COMPUTER TO AN END USER,
PROVIDED THAT NOTICE IS PROVIDED TO THE END USER WHO FIRST PURCHASES THE
COMPUTER THAT SUCH A PROGRAM HAS BEEN INSTALLED ON THE COMPUTER.
(C) ONCE THE NOTICE AND CONSENT REQUIREMENTS OF SUBPARAGRAPHS (I) AND
(II) OF PARAGRAPH (A) OF THIS SUBDIVISION HAVE BEEN SATISFIED WITH
RESPECT TO THE INSTALLATION OR INITIAL ACTIVATION OF A COVERED
FILE-SHARING PROGRAM ON A COMPUTER AFTER THE EFFECTIVE DATE OF THIS
SECTION, THE NOTICE AND CONSENT REQUIREMENTS OF SUBPARAGRAPHS (I) AND
(II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL NOT APPLY TO THE INSTAL-
LATION OR INITIAL ACTIVATION OF SOFTWARE MODIFICATIONS OR UPGRADES TO A
COVERED FILE-SHARING PROGRAM INSTALLED ON THAT PROTECTED COMPUTER AT THE
TIME OF THE SOFTWARE MODIFICATIONS OR UPGRADES SO LONG AS THOSE SOFTWARE
MODIFICATIONS OR UPGRADES DO NOT:
(I) MAKE FILES ON THE COMPUTER AVAILABLE FOR SEARCHING BY AND COPYING
TO ONE OR MORE OTHER COMPUTERS THAT WERE NOT ALREADY MADE AVAILABLE BY
THE COVERED FILE-SHARING PROGRAM FOR SEARCHING BY AND COPYING TO ONE OR
MORE OTHER COMPUTERS; OR
(II) ADD TO THE TYPES OR LOCATIONS OF FILES THAT CAN BE MADE AVAILABLE
BY THE COVERED FILE-SHARING PROGRAM FOR SEARCHING BY AND COPYING TO ONE
OR MORE OTHER COMPUTERS.
3. IT SHALL BE UNLAWFUL FOR ANY COVERED ENTITY TO PREVENT REASONABLE
EFFORTS TO DISABLE OR REMOVE, OR TO BLOCK THE INSTALLATION OR EXECUTION
OF, A COVERED FILE-SHARING PROGRAM ON ANY COMPUTER.
4. THE PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION SHALL
NOT APPLY TO THE STATE OR ITS POLITICAL SUBDIVISIONS.
5. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR REME-
DIES THAT ARE OTHERWISE AVAILABLE TO THE CONSUMER OR PURCHASER UNDER ANY
OTHER LAW.
6. (A) THE ATTORNEY GENERAL MAY BRING A CIVIL ACTION AGAINST ANY
COVERED ENTITY THAT VIOLATES ANY PROVISION OF THIS SECTION TO ENFORCE
THE PROVISIONS OF THIS SECTION AND MAY RECOVER ANY OR ALL OF THE FOLLOW-
ING:
A. 4253 3
(I) UP TO ONE HUNDRED THOUSAND DOLLARS FOR A KNOWING PATTERN OR PRAC-
TICE OF SUCH VIOLATIONS; AND
(II) COSTS AND REASONABLE ATTORNEY'S FEES.
(B) WHENEVER THE ATTORNEY GENERAL BELIEVES FROM EVIDENCE SATISFACTORY
TO HIM OR HER THAT A KNOWING VIOLATION OF THIS SECTION OR A PATTERN OR
PRACTICE OF VIOLATING THIS SECTION HAS OCCURRED OR IS ABOUT TO OCCUR HE
OR SHE MAY SEEK AN ORDER TO ENJOIN SUCH VIOLATION.
S 2. This act shall take effect on the ninetieth day after it shall
have become a law.