S. 1320 2
considered an authorized repair provider with respect to such equip-
ment.]
(b) "Digital electronic equipment" or "equipment" means any HARDWARE
product [with a value over ten dollars, adjusted annually by the rate of
change in the consumer price index as reported by the bureau of labor
statistics of the United States department of labor,] MANUFACTURED FOR
THE FIRST TIME, AND FIRST SOLD OR USED IN NEW YORK ON OR AFTER JULY
FIRST, TWO THOUSAND TWENTY-THREE, that depends for its functioning, in
whole or in part, on digital electronics embedded in or attached to the
product FOR WHICH THE ORIGINAL EQUIPMENT MANUFACTURER MAKES AVAILABLE
TOOLS, PARTS, AND DOCUMENTATION EITHER THROUGH AUTHORIZED REPAIR PROVID-
ERS, ITS OWN EMPLOYEES, OR ANY AUTHORIZED THIRD-PARTY PROVIDERS.
"DIGITAL ELECTRONIC EQUIPMENT" OR "EQUIPMENT" DOES NOT INCLUDE ANY PROD-
UCT SOLD UNDER A SPECIFIC BUSINESS-TO-GOVERNMENT OR BUSINESS-TO-BUSINESS
CONTRACT, WHICH IS NOT OTHERWISE OFFERED FOR SALE DIRECTLY BY A RETAIL
SELLER.
(c) "Documentation" means any manual, diagram, reporting output,
service code description, schematic diagram, [security codes, pass-
words,] or similar kinds of information [used in] REQUIRED FOR effecting
the services of diagnosis, maintenance, or repair of digital electronic
equipment.
(d) "Fair and reasonable terms" means making available parts, tools,
or documentation as follows:
(i) With respect to documentation REQUIRED FOR REPAIR, that such
documentation is made available by the original equipment manufacturer
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.
(ii) With respect to tools, that such tools are made available by the
original equipment manufacturer at no charge and without requiring
authorization [or internet access] for use or operation of such tool, or
imposing impediments to access or use of the tool to diagnose, maintain,
or repair [and enable full functionality of] digital electronic equip-
ment USING PARTS PROVIDED BY THE ORIGINAL EQUIPMENT MANUFACTURER IN
ACCORDANCE WITH THIS SECTION, [or] AND in a REASONABLY TIMELY manner
[that impairs the efficient and cost-effective performance of any such
diagnosis, maintenance, or repair], except that, when such tool is
requested in physical form, a charge may be included for the reasonable,
actual costs of PROCURING, preparing and sending such tool.
(iii) With respect to parts, that such parts are made available by the
original equipment manufacturer, either directly or INDIRECTLY through
an authorized repair provider OR AUTHORIZED THIRD-PARTY PROVIDER, to
independent repair providers and owners at REASONABLE costs and terms
[that are equivalent to the most favorable costs and terms under which
an original equipment manufacturer offers the part to an authorized
repair provider] and which:
A. [accounts for any discount, rebate, convenient and timely means of
delivery, means of enabling fully restored and updated functionality,
rights of use, or other incentive or preference the original equipment
manufacturer offers to an authorized repair provider, or any additional
cost, burden, or impediment the original equipment manufacturer imposes
on an owner or independent repair provider;
B. is] ARE not conditioned on or imposing a substantial obligation or
restriction that is not reasonably necessary for enabling the owner or
independent repair provider to engage in the diagnosis, maintenance, or
S. 1320 3
repair of digital electronic equipment made by or on behalf of the
original equipment manufacturer; and
[C. is] B. ARE not conditioned on an arrangement described in para-
graph (a) of this subdivision.
(iv) Such parts, tools, and documentation shall be made available to
an authorized repair provider, and shall further be made available by an
authorized repair provider to any independent repair provider or owner,
provided that such authorized repair provider is contractually and prac-
tically permitted by the original equipment manufacturer to sell such
parts, tools, and documentation to any independent repair provider or
owner, and provided further that such original equipment manufacturer
shall not:
A. retaliate against or hinder the ability of any authorized repair
provider to sell such parts, tools, or documentation through any means,
including advertising restrictions or product allocation limitations
unrelated to legitimate product shortages; or
B. condition or impose a substantial obligation or restriction that is
not reasonably necessary for enabling the owner or independent repair
provider to engage in the diagnosis, maintenance, or repair of digital
electronic equipment made by or on behalf of the original equipment
manufacturer.
(e) "Independent repair provider" means an individual or business
operating in this state, that does not have an arrangement described in
paragraph (a) of this subdivision with an original equipment manufactur-
er, and who is engaged in the services of diagnosis, maintenance, or
repair of digital electronic equipment.
(f) "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.
(g) "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.
(h) "Motor vehicle" means a vehicle that is designed for transporting
persons or property on a street or highway and is certified by the
manufacturer under all applicable federal safety and emissions standards
and requirements for distribution and sale in the United States.
(i) "Motor vehicle dealer" means an individual or business who, in the
ordinary course of business, is engaged in the business of selling or
leasing motor vehicles to an individual or business pursuant to a fran-
chise agreement, has obtained a license under the vehicle and traffic
law, and is engaged in the services of diagnosis, maintenance, or repair
of motor vehicles or motor vehicle engines pursuant to such franchise
agreement.
(j) "Motor vehicle manufacturer" means a business engaged in the manu-
facturing or assembling of motor vehicles.
(k) "Original equipment manufacturer" means any individual or business
that, in the normal course of business, is engaged in the business of
selling or leasing digital electronic equipment manufactured by or on
behalf of itself, to any individual or business.
(l) "Owner" means an individual or business that owns or leases
digital electronic equipment purchased or used in this state.
S. 1320 4
(m) "Part" OR "PARTS" means any replacement part OR ASSEMBLY OF PARTS,
either new or used, made available by an original equipment manufacturer
for purposes of effecting the services of maintenance or repair of
digital electronic equipment manufactured or sold by the original equip-
ment manufacturer. PART DOES NOT INCLUDE PRINTED BOARD ASSEMBLIES THAT
MAY ALLOW DEVICE CLONING IN VIOLATION OF 18 U.S.C. SECTION 1029 OR OTHER
APPLICABLE LAW.
(n) "Tool" means any software program, hardware implement, or other
apparatus used for diagnosis, maintenance, or repair of digital elec-
tronic equipment, including software or other mechanisms that provide,
program, [or] pair a part, calibrate functionality, or perform any other
function required to [bring] REPAIR OR UPDATE the ORIGINAL equipment or
part back to fully functional condition[, including any updates].
(o) "Repair" means any act needed to restore digital electronic equip-
ment or equipment to fully working order.
(p) "Maintenance" means any act necessary to keep currently working
digital electronic equipment or equipment in fully working order.
(q) "Diagnosis" means the process of identifying the issue or issues
that cause digital electronic equipment or equipment to not be in fully
working order.
(r) "Modifications" or "modify" means any alteration to digital elec-
tronic equipment that is not maintenance and not a repair.
2. Requirements. [(a) For digital electronic equipment and parts for
such equipment that are sold or used in this state, an] AN original
equipment manufacturer shall make available to any independent repair
provider and owner of digital electronic equipment manufactured by or on
behalf of or sold by such original equipment manufacturer, on fair and
reasonable terms, any documentation, parts, and tools required for the
diagnosis, maintenance, or repair of such digital electronic equipment
and parts [for such equipment] THAT ARE MANUFACTURED FOR THE FIRST TIME,
AND FIRST SOLD OR USED IN NEW YORK ON OR AFTER JULY FIRST, TWO THOUSAND
TWENTY-THREE. Such documentation, parts, and tools shall be made avail-
able either directly by [such] AN original equipment manufacturer or via
an authorized repair provider. AN ORIGINAL EQUIPMENT MANUFACTURER WHO,
IN THE REGULAR COURSE OF BUSINESS, OFFERS TO AN OWNER THE SERVICES OF
DIAGNOSIS, MAINTENANCE OR REPAIR OF ITS OWN DIGITAL ELECTRONIC EQUIP-
MENT, AND WHO DOES NOT HAVE AN ARRANGEMENT DESCRIBED IN PARAGRAPH (A) OF
SUBDIVISION ONE OF THIS SECTION WITH AN UNAFFILIATED INDIVIDUAL OR BUSI-
NESS, SHALL BE CONSIDERED AN AUTHORIZED REPAIR PROVIDER WITH RESPECT TO
SUCH EQUIPMENT.
[(b) For equipment that contains an electronic security lock or other
security-related function, the original equipment manufacturer shall
make available to any owner and independent repair provider, on fair and
reasonable terms, any special documentation, tools, and parts needed to
access and reset the lock or function when disabled in the course of
diagnosis, maintenance, or repair of such equipment. Such documenta-
tion, 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 any trade secret
OR LICENSE ANY INTELLECTUAL PROPERTY to any owner or independent service
provider.
(b) Nothing 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
S. 1320 5
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
to an authorized repair provider pursuant to the terms of an arrangement
described in paragraph (a) of subdivision one of this section.
(d) Nothing in this section shall be construed to require an original
equipment manufacturer or authorized repair provider to make available
any parts, tools or documentation for the purposes of modifying or
making modifications to any digital electronic equipment.
(e) Nothing in this section shall be construed to require an original
equipment manufacturer or authorized repair provider to make available
any parts, tools, or documentation required for the diagnosis, mainte-
nance, or repair of public safety communications equipment, the intended
use of which is for emergency response or prevention purposes by an
emergency service organization such as a police, fire or emergency
medical services agency.
(f) Nothing in this section shall be construed to require any original
equipment manufacturer or authorized repair provider to make available
any parts, tools, or documentation required for the diagnosis, mainte-
nance, or repair of digital electronic equipment in a manner that is
inconsistent with or in violation of any federal law, such as gaming and
entertainment consoles, related software and components.
(g) Nothing in this section shall be construed to require any original
equipment manufacturer or authorized repair provider to make available
any parts, tools, or documentation required for the diagnosis, mainte-
nance, or repair of any home appliance that has a digital electronic
product embedded within it, including, but not limited to, refrigera-
tors, ovens, microwaves, air conditioning [and], heating units, AND
SECURITY DEVICES OR ALARM SYSTEMS including any related software and
components.
(H) NOTHING IN THIS SECTION SHALL PREVENT AN ORIGINAL EQUIPMENT
MANUFACTURER FROM ESTABLISHING REASONABLE TRAINING AND CERTIFICATION
PROGRAMS FOR INDEPENDENT REPAIR PROVIDERS, HOWEVER, NO INDEPENDENT
REPAIR PROVIDER SHALL BE REQUIRED TO COMPLETE ANY SUCH TRAINING OR
CERTIFICATION PROGRAM AS A CONDITION TO BE COVERED BY THE RIGHTS GRANTED
UNDER THIS CHAPTER.
(I) NOTHING IN THIS SECTION SHALL PREVENT AN ORIGINAL EQUIPMENT
MANUFACTURER FROM OFFERING PARTS, SUCH AS INTEGRATED BATTERIES, TO INDE-
PENDENT REPAIR PROVIDERS OR OWNERS PRE-ASSEMBLED WITH OTHER PARTS RATHER
THAN AS INDIVIDUAL COMPONENTS, WHERE THE INDIVIDUAL COMPONENTS MAY POSE
A HEIGHTENED SAFETY RISK IF INSTALLED IMPROPERLY.
(J) NOTHING IN THIS SECTION SHALL REQUIRE AN ORIGINAL EQUIPMENT
MANUFACTURER TO MAKE AVAILABLE SPECIAL DOCUMENTATION, TOOLS, AND PARTS
THAT WOULD DISABLE OR OVERRIDE ANTI-THEFT SECURITY MEASURES SET BY THE
OWNER OF THE EQUIPMENT WITHOUT THE OWNER'S AUTHORIZATION.
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
S. 1320 6
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 found in a medical setting including diagnostic, monitor-
ing, or control equipment or any product or service that they offer; or
(c) a manufacturer, distributor, importer, or dealer of any off-road
(non-road) equipment, including but not limited to, farm and utility
tractors, farm implements, farm machinery, forestry equipment, indus-
trial equipment, utility equipment, construction equipment, compact
construction equipment, mining equipment, turf, yard and garden equip-
ment, outdoor power equipment (including portable generators), marine,
all-terrain sports and recreational vehicles (including racing vehi-
cles), stand-alone or integrated stationary or mobile internal
combustion engines, other power sources, (including without limitation,
generator sets, electric/battery and fuel cell power), power tools, and
any tools, technology, attachments, accessories, components and repair
parts for any of the foregoing.
(D) COMMERCIAL AND INDUSTRIAL ELECTRICAL EQUIPMENT (INCLUDING POWER
DISTRIBUTION EQUIPMENT, SUCH AS MEDIUM/LOW VOLTAGE SWITCHGEAR AND TRANS-
FORMERS, POWER CONTROL EQUIPMENT, SUCH AS MEDIUM/LOW VOLTAGE MOTOR
CONTROL AND DRIVES, POWER QUALITY EQUIPMENT, SUCH AS UNINTERRUPTABLE
POWER SUPPLIES, REMOTE POWER PANELS, POWER DISTRIBUTION UNITS AND
STATIC/TRANSFER SWITCHES) AND ANY TOOLS, TECHNOLOGY, ATTACHMENTS, ACCES-
SORIES, COMPONENTS AND REPAIR PARTS FOR ANY OF THE FOREGOING.
(E) AN ELECTRONIC BICYCLE MANUFACTURER, DISTRIBUTOR, IMPORTER, RETAIL-
ER OR DEALER.
5. No original equipment manufacturer or authorized repair provider
shall be liable for any damage or injury caused to any digital electron-
ic equipment [by an independent repair provider or owner], PERSON, OR
PROPERTY which occurs [during the course] AS A RESULT of repair, diagno-
sis, maintenance, or modification PERFORMED BY AN INDEPENDENT REPAIR
PROVIDER OR OWNER, including but not limited to, any indirect, inci-
dental, special or consequential damages; any loss of data, privacy or
profits; or any inability to use, or reduced functionality of, the
digital electronic equipment.
6. BEFORE REPAIRING DIGITAL ELECTRONIC EQUIPMENT, INDEPENDENT REPAIR
PROVIDERS SHALL PROVIDE TO ANY CUSTOMER, AND PUBLISH ON THEIR WEBSITE
AND THE PLACE OF BUSINESS, A WRITTEN NOTICE THAT CONTAINS THE FOLLOWING
INFORMATION:
(A) THE INDEPENDENT REPAIR PROVIDER IS NOT AN AUTHORIZED REPAIR
PROVIDER FOR THE EQUIPMENT;
(B) THE CONSUMER SHOULD REVIEW THE TERMS AND CONDITIONS OF ANY WARRAN-
TY FOR THE EQUIPMENT, AS REPAIRS NOT PERFORMED BY AN AUTHORIZED REPAIR
PROVIDER MAY AFFECT THE WARRANTY;
(C) WARRANTIES FOR CONSUMER PRODUCTS ARE GOVERNED BY THE FEDERAL
MAGNUSON-MOSS WARRANTY ACT (15 U.S.C. CH. 50 § 2301), WHICH GIVES
CONSUMERS RIGHTS AND PROTECTIONS THAT APPLY OVER CONFLICTING PROVISIONS
IN THE WARRANTY;
(D) UNDER THE MAGNUSON-MOSS WARRANTY ACT, A WARRANTY CANNOT REQUIRE
THAT MAINTENANCE AND REPAIRS BE PERFORMED ONLY BY AN AUTHORIZED REPAIR
PROVIDER; AND
(E) UNDER THE MAGNUSON-MOSS WARRANTY ACT, IF DAMAGE TO EQUIPMENT IS
SHOWN TO BE CAUSED BY EQUIPMENT NOT OFFERED OR SOLD BY THE ORIGINAL
EQUIPMENT MANUFACTURER OR BY FAULTY REPAIR PERFORMED BY A NON-AUTHORIZED
REPAIR PROVIDER, THAT DAMAGE MAY NOT BE COVERED BY THE WARRANTY, BUT THE
WARRANTY MAY OTHERWISE REMAIN IN EFFECT.
S. 1320 7
7. Enforcement by the attorney general. (a) Whenever the attorney
general shall believe from evidence satisfactory to the attorney general
that any person, firm, corporation or association or agent or employee
thereof has engaged in or is about to engage in any acts or practices in
violation of this section, the attorney general 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 prac-
tices 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 such person,
firm, corporation, or association 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 proceedings should
not be instituted against such person, firm, corporation, or associ-
ation. Such notice by the attorney general shall be delivered by certi-
fied mail and by first-class mail with proof of mailing. In any proceed-
ing in which the attorney general seeks preliminary relief, such notice
shall not be required upon a finding by the attorney general that 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 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 an 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.
§ 2. Section 3 of a chapter of the laws of 2022 amending the general
business law relating to the sale of digital electronic equipment and
providing diagnostic and repair information, as proposed in legislative
bills numbers S. 4104-A and A. 7006-B is amended to read as follows:
§ 3. This act shall take effect one year after it shall have become a
law AND SHALL APPLY TO DIGITAL ELECTRONIC EQUIPMENT, MANUFACTURED FOR
THE FIRST TIME, AND FIRST SOLD OR USED IN NEW YORK ON OR AFTER JULY 1,
2023.
§ 3. This act shall take effect immediately; provided, however that
section one of this act shall take effect on the same date and in the
same manner as a chapter of the laws of 2022 amending the general busi-
ness law relating to the sale of digital electronic equipment and
providing diagnostic and repair information, as proposed in legislative
bills numbers S. 4104-A and A. 7006-B, takes effect.
