S T A T E O F N E W Y O R K
________________________________________________________________________
6068--A
2015-2016 Regular Sessions
I N A S S E M B L Y
March 11, 2015
___________
Introduced by M. of A. MORELLE, STIRPE, WOERNER, SKOUFIS, COLTON, BENE-
DETTO, GOTTFRIED, GUNTHER, FAHY, LAVINE -- Multi-Sponsored by -- M. of
A. BRAUNSTEIN, GALEF, LENTOL, LUPARDO, SIMANOWITZ, SIMON, SKARTADOS,
WEINSTEIN -- read once and referred to the Committee on Consumer
Affairs and Protection -- recommitted to the Committee on Consumer
Affairs and Protection in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the general business law, in relation to the sale of
digital electronic equipment diagnostic and repair information
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "fair repair act".
S 2. The general business law is amended by adding a new section 399-
nn to read as follows:
S 399-NN. SALE OF DIGITAL ELECTRONIC EQUIPMENT DIAGNOSTIC AND REPAIR
INFORMATION. 1. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "ORIGINAL EQUIPMENT MANUFACTURER" OR "OEM" MEANS ANY PERSON OR
BUSINESS WHO, IN THE ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE
BUSINESS OF SELLING OR LEASING NEW DIGITAL ELECTRONIC EQUIPMENT OR PARTS
OF EQUIPMENT TO ANY PERSON OR BUSINESS AND IS ENGAGED IN THE DIAGNOSIS,
SERVICE, MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT OR PARTS
OF SUCH EQUIPMENT.
(B) "AUTHORIZED REPAIR PROVIDER" MEANS A PERSON OR BUSINESS THAT HAS
AN ARRANGEMENT FOR A DEFINITE OR INDEFINITE PERIOD IN WHICH AN OEM
GRANTS TO A SEPARATE BUSINESS ORGANIZATION OR INDIVIDUAL LICENSE TO USE
A TRADE NAME, SERVICE MARK OR RELATED CHARACTERISTIC FOR THE PURPOSES OF
OFFERING REPAIR SERVICES UNDER THE NAME OF THE OEM.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07386-11-6
A. 6068--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) "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.
A. 6068--A 3
(L) "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORT-
ING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED BY
THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-
DARDS AND REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
BUT EXCLUDING (I) A MOTORCYCLE; OR (II) A RECREATIONAL VEHICLE OR AN
AUTO HOME EQUIPPED FOR HABITATION.
(M) "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
(N) "MOTOR VEHICLE DEALER" MEANS ANY PERSON OR BUSINESS WHO, IN THE
ORDINARY COURSE OF ITS BUSINESS, IS ENGAGED IN THE BUSINESS OF SELLING
OR LEASING NEW MOTOR VEHICLES TO A PERSON OR BUSINESS PURSUANT TO A
FRANCHISE AGREEMENT AND WHO HAS OBTAINED A LICENSE, AS REQUIRED UNDER
APPLICABLE LAW, AND IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR
REPAIR OF MOTOR VEHICLES OR MOTOR VEHICLE ENGINES PURSUANT TO SAID FRAN-
CHISE AGREEMENT.
2. (A) FOR EQUIPMENT AND PARTS SOLD OR USED IN THIS STATE, THE OEMS OF
SUCH EQUIPMENT AND PARTS SHALL (I) MAKE AVAILABLE TO INDEPENDENT REPAIR
PROVIDERS OR OWNERS OF PRODUCTS MANUFACTURED BY SUCH OEM DIAGNOSTIC AND
REPAIR INFORMATION, INCLUDING REPAIR TECHNICAL UPDATES, UPDATES AND
CORRECTIONS TO EMBEDDED SOFTWARE FOR NO CHARGE OR IN THE SAME MANNER
SUCH OEM MAKES AVAILABLE TO ITS AUTHORIZED REPAIR PROVIDER; AND
(II) MAKE AVAILABLE FOR PURCHASE BY THE EQUIPMENT OWNER, HIS OR HER
AUTHORIZED AGENT OR INDEPENDENT REPAIR PROVIDER, PARTS, INCLUSIVE OF ANY
UPDATES TO THE EMBEDDED SOFTWARE OF THE PARTS, UPON FAIR AND REASONABLE
TERMS. NOTHING IN THIS SUBDIVISION SHALL REQUIRE THE OEM TO SELL PARTS
IF THE PARTS ARE NO LONGER AVAILABLE TO THE OEM OR THE AUTHORIZED REPAIR
PROVIDER OF THE OEM.
(B) ANY OEM THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR INFORMATION
TO ANY INDEPENDENT REPAIR PROVIDER OR TO ANY OWNER IN A FORMAT THAT IS
STANDARDIZED WITH OTHER OEMS, AND ON TERMS AND CONDITIONS MORE FAVORABLE
THAN THE MANNER AND THE TERMS AND CONDITIONS PURSUANT TO WHICH THE
AUTHORIZED REPAIR PROVIDER OBTAINS THE SAME DIAGNOSTIC, SERVICE OR
REPAIR INFORMATION, SHALL BE PROHIBITED FROM REQUIRING ANY AUTHORIZED
REPAIR PROVIDER TO CONTINUE PURCHASING DIAGNOSTIC, SERVICE, OR REPAIR
INFORMATION IN A PROPRIETARY FORMAT, UNLESS SUCH PROPRIETARY FORMAT
INCLUDES DIAGNOSTIC, SERVICE, OR REPAIR OPERATIONS INFORMATION OR FUNC-
TIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED FORMAT.
(C) EACH OEM OF EQUIPMENT SOLD OR USED IN THE STATE OF NEW YORK SHALL
MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES
ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE SAME DIAGNOSTIC, REPAIR
AND REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH OEM MAKES AVAILABLE TO
ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED REPAIR PROVIDER.
EACH OEM SHALL OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT
REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.
EACH OEM THAT PROVIDES DIAGNOSTIC REPAIR INFORMATION TO AFTERMARKET
TOOL, DIAGNOSTICS, OR THIRD PARTY SERVICE INFORMATION PUBLICATIONS AND
SYSTEMS SHALL HAVE FULLY SATISFIED ITS OBLIGATIONS UNDER THIS SECTION
AND THEREAFTER NOT BE RESPONSIBLE FOR THE CONTENT AND FUNCTIONALITY OF
AFTERMARKET DIAGNOSTIC TOOLS OR SERVICE INFORMATION SYSTEMS.
(D) OEM EQUIPMENT OR PARTS SOLD OR USED IN THE STATE OF NEW YORK FOR
THE PURPOSE OF PROVIDING SECURITY-RELATED FUNCTIONS MAY NOT EXCLUDE
DIAGNOSTIC, SERVICE AND REPAIR INFORMATION NECESSARY TO RESET A SECURI-
TY-RELATED ELECTRONIC FUNCTION FROM INFORMATION PROVIDED TO OWNERS AND
INDEPENDENT REPAIR FACILITIES. IF EXCLUDED UNDER THIS PARAGRAPH, THE
INFORMATION NECESSARY TO RESET AN IMMOBILIZER SYSTEM OR SECURITY-RELATED
A. 6068--A 4
ELECTRONIC MODULE SHALL BE OBTAINED BY OWNERS AND INDEPENDENT REPAIR
FACILITIES THROUGH THE APPROPRIATE SECURE DATA RELEASE SYSTEMS.
3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE AN OEM TO
DIVULGE A TRADE SECRET.
4. NOTWITHSTANDING ANY LAW, RULE OR REGULATION TO THE CONTRARY, NO
PROVISION IN THIS SECTION SHALL BE READ, INTERPRETED OR CONSTRUED TO
ABROGATE, INTERFERE WITH, CONTRADICT OR ALTER THE TERMS OF ANY AGREEMENT
EXECUTED AND IN FORCE BETWEEN AN AUTHORIZED REPAIR PROVIDER AND AN OEM
INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION OF WARRANTY
OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON BEHALF OF AN
OEM PURSUANT TO SUCH AUTHORIZED REPAIR AGREEMENT; PROVIDED, HOWEVER,
THAT ANY PROVISION IN SUCH AN AUTHORIZED REPAIR AGREEMENT THAT PURPORTS
TO WAIVE, AVOID, RESTRICT OR LIMIT AN OEM'S COMPLIANCE WITH THIS SECTION
SHALL BE VOID AND UNENFORCEABLE.
5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE OEMS OR
AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER OR INDEPENDENT REPAIR
PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY AN
OEM TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHOR-
IZING AGREEMENT.
6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS,
ANY PRODUCT OR SERVICE OF A MOTOR VEHICLE MANUFACTURER OR MOTOR VEHICLE
DEALERS AS DEFINED IN THIS SECTION.
7. 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
A. 6068--A 5
ANY MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH ACTS
OR PRACTICES IN VIOLATION OF THIS SECTION. IN SUCH ACTION PRELIMINARY
RELIEF MAY BE GRANTED UNDER ARTICLE SIXTY-THREE OF THE CIVIL PRACTICE
LAW AND RULES.
(B) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
ATTORNEY GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM SUCH
PROCEEDING IS CONTEMPLATED NOTICE BY CERTIFIED MAIL AND AN OPPORTUNITY
TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
PROCEEDINGS SHOULD NOT BE INSTITUTED AGAINST HIM, UNLESS THE ATTORNEY
GENERAL SHALL FIND, IN ANY CASE IN WHICH HE SEEKS PRELIMINARY RELIEF,
THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
(C) IN CONNECTION WITH ANY PROPOSED PROCEEDING UNDER THIS SECTION, THE
ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF
THE RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL
PRACTICE LAW AND RULES.
(D) THIS SUBDIVISION SHALL APPLY TO ALL ACTS OR PRACTICES DECLARED TO
BE IN VIOLATION OF THIS SECTION, WHETHER OR NOT SUBJECT TO ANY OTHER LAW
OF THIS STATE, AND SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF
THIS STATE UNDER WHICH THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY
ACTION OR CONDUCT ANY INQUIRY.
(E) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION OR AGENT OR EMPLOYEE
THEREOF WHO ENGAGES IN ANY OF THE ACTS OR PRACTICES TO BE IN VIOLATION
OF THIS SECTION SHALL BE LIABLE TO A CIVIL PENALTY OF NOT MORE THAN FIVE
HUNDRED DOLLARS FOR EACH VIOLATION, WHICH SHALL ACCRUE TO THE STATE OF
NEW YORK AND MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
GENERAL.
(F) EXCEPT IN THE INSTANCE OF A DISPUTE ARISING BETWEEN AN ORIGINAL
EQUIPMENT MANUFACTURER AND ITS AUTHORIZED REPAIR PROVIDER RELATED TO
EITHER PARTY'S COMPLIANCE WITH AN EXISTING AUTHORIZED REPAIR AGREEMENT,
AN AUTHORIZED REPAIR PROVIDER SHALL HAVE ALL THE RIGHTS AND REMEDIES
PROVIDED IN THIS SECTION.
S 3. This act shall take effect on the sixtieth day after it shall
have become a law; provided, however, that subdivision 7 of section
399-nn of the general business law, as added by section two of this act
shall take effect on the ninetieth day after it shall have become a law.