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S04104 Summary:

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S04104 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4104--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    February 2, 2021
                                       ___________
 
        Introduced  by  Sens.  BRESLIN, THOMAS, BIAGGI, BRISPORT, BROUK, COMRIE,
          COONEY, GIANARIS, HINCHEY, HOYLMAN, MYRIE, REICHLIN-MELNICK,  SALAZAR,
          SKOUFIS  --  read  twice  and  ordered printed, and when printed to be
          committed to the Committee on Consumer Protection  --  recommitted  to
          the Committee on Consumer Protection in accordance with Senate Rule 6,
          sec.  8  --  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  and  providing  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 "digital fair repair act".
     3    § 2. The general business law is amended by adding a new section  399-
     4  nn to read as follows:
     5    §  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)  "Authorized  repair provider" means an individual or business who
     9  has an arrangement with the original equipment manufacturer under  which
    10  the original equipment manufacturer grants to the individual or business
    11  a  license to use a trade name, service mark, or other proprietary iden-
    12  tifier for the purposes of offering the services of  diagnosis,  mainte-
    13  nance,  or  repair of digital electronic equipment under the name of the
    14  original equipment manufacturer, or other arrangement with the  original
    15  equipment  manufacturer to offer such services on behalf of the original
    16  equipment manufacturer. An original equipment  manufacturer  who  offers
    17  the  services  of  diagnosis,  maintenance, or repair of its own digital
    18  electronic equipment, and who does not have an arrangement described  in
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06580-12-2
        S. 4104--A                          2
 
     1  this  subdivision  with an unaffiliated individual or business, shall be
     2  considered an authorized repair provider with respect to such equipment.
     3    (b)  "Digital  electronic  equipment" or "equipment" means any product
     4  with a value over ten dollars, adjusted annually by the rate  of  change
     5  in  the  consumer price index as reported by the bureau of labor statis-
     6  tics of the United States department of  labor,  that  depends  for  its
     7  functioning,  in whole or in part, on digital electronics embedded in or
     8  attached to the product.
     9    (c) "Documentation"  means  any  manual,  diagram,  reporting  output,
    10  service  code description, schematic diagram, security codes, passwords,
    11  or similar kinds of information used in effecting the services of  diag-
    12  nosis, maintenance, or repair of digital electronic equipment.
    13    (d)  "Fair  and reasonable terms" means making available parts, tools,
    14  or documentation as follows:
    15    (i) With respect to documentation, that  such  documentation  is  made
    16  available  by  the  original equipment manufacturer at no charge, except
    17  that, when the documentation is requested in physical  printed  form,  a
    18  charge  may be included for the reasonable actual costs of preparing and
    19  sending the copy.
    20    (ii) With respect to tools, that such tools are made available by  the
    21  original  equipment  manufacturer  at  no  charge  and without requiring
    22  authorization or internet access for use or operation of such  tool,  or
    23  imposing impediments to access or use of the tool to diagnose, maintain,
    24  or repair and enable full functionality of digital electronic equipment,
    25  or in a manner that impairs the efficient and cost-effective performance
    26  of  any  such  diagnosis, maintenance, or repair, except that, when such
    27  tool is requested in physical form, a charge may  be  included  for  the
    28  reasonable, actual costs of preparing and sending such tool.
    29    (iii) With respect to parts, that such parts are made available by the
    30  original  equipment  manufacturer, either directly or through an author-
    31  ized repair provider, to independent  repair  providers  and  owners  at
    32  costs  and  terms  that  are  equivalent to the most favorable costs and
    33  terms under which an original equipment manufacturer offers the part  to
    34  an authorized repair provider and which:
    35    A.  accounts  for any discount, rebate, convenient and timely means of
    36  delivery, means of enabling fully restored  and  updated  functionality,
    37  rights  of  use, or other incentive or preference the original equipment
    38  manufacturer offers to an authorized repair provider, or any  additional
    39  cost,  burden, or impediment the original equipment manufacturer imposes
    40  on an owner or independent repair provider;
    41    B. is not conditioned on  or  imposing  a  substantial  obligation  or
    42  restriction  that  is not reasonably necessary for enabling the owner or
    43  independent repair provider to engage in the diagnosis, maintenance,  or
    44  repair  of  digital  electronic  equipment  made  by or on behalf of the
    45  original equipment manufacturer; and
    46    C. is not conditioned on an arrangement described in paragraph (a)  of
    47  this subdivision.
    48    (iv)  Such  parts, tools, and documentation shall be made available to
    49  an authorized repair provider, and shall further be made available by an
    50  authorized repair provider to any independent repair provider or  owner,
    51  provided that such authorized repair provider is contractually and prac-
    52  tically  permitted  by  the original equipment manufacturer to sell such
    53  parts, tools, and documentation to any independent  repair  provider  or
    54  owner,  and  provided  further that such original equipment manufacturer
    55  shall not:
        S. 4104--A                          3
 
     1    A. retaliate against or hinder the ability of  any  authorized  repair
     2  provider  to sell such parts, tools, or documentation through any means,
     3  including advertising restrictions  or  product  allocation  limitations
     4  unrelated to legitimate product shortages; or
     5    B. condition or impose a substantial obligation or restriction that is
     6  not  reasonably  necessary  for enabling the owner or independent repair
     7  provider to engage in the diagnosis, maintenance, or repair  of  digital
     8  electronic  equipment  made  by  or  on behalf of the original equipment
     9  manufacturer.
    10    (e) "Independent repair provider"  means  an  individual  or  business
    11  operating  in this state, that does not have an arrangement described in
    12  paragraph (a) of this subdivision with an original equipment manufactur-
    13  er, and who is engaged in the services  of  diagnosis,  maintenance,  or
    14  repair of digital electronic equipment.
    15    (f) "Manufacturer of motor vehicle equipment" means a business engaged
    16  in  the  business of manufacturing or supplying components that are used
    17  in the manufacture, maintenance, or repair of a motor vehicle.
    18    (g)  "Medical  device"  means  an  instrument,  apparatus,  implement,
    19  machine,  contrivance,  implant,  or  other  similar or related article,
    20  including a component part, or accessory,  as  defined  in  the  federal
    21  Food,  Drug  and  Cosmetic  Act, 21 USC, Section 321 (h) as amended from
    22  time to time, which is intended for use in the diagnosis of  disease  or
    23  other  conditions,  or in the cure, mitigation, treatment, or prevention
    24  of disease, in man or other animals.
    25    (h) "Motor vehicle" means a vehicle that is designed for  transporting
    26  persons  or  property  on  a  street  or highway and is certified by the
    27  manufacturer under all applicable federal safety and emissions standards
    28  and requirements for distribution and sale in the United States.
    29    (i) "Motor vehicle dealer" means an individual or business who, in the
    30  ordinary course of business, is engaged in the business  of  selling  or
    31  leasing  motor vehicles to an individual or business pursuant to a fran-
    32  chise agreement, has obtained a license under the  vehicle  and  traffic
    33  law, and is engaged in the services of diagnosis, maintenance, or repair
    34  of  motor  vehicles  or motor vehicle engines pursuant to such franchise
    35  agreement.
    36    (j) "Motor vehicle manufacturer" means a business engaged in the manu-
    37  facturing or assembling of motor vehicles.
    38    (k) "Original equipment manufacturer" means any individual or business
    39  that, in the normal course of business, is engaged in  the  business  of
    40  selling  or  leasing  digital electronic equipment manufactured by or on
    41  behalf of itself, to any individual or business.
    42    (l) "Owner" means an  individual  or  business  that  owns  or  leases
    43  digital electronic equipment purchased or used in this state.
    44    (m) "Part" means any replacement part, either new or used, made avail-
    45  able by an original equipment manufacturer for purposes of effecting the
    46  services  of maintenance or repair of digital electronic equipment manu-
    47  factured or sold by the original equipment manufacturer.
    48    (n) "Tool" means any software program, hardware  implement,  or  other
    49  apparatus  used  for  diagnosis, maintenance, or repair of digital elec-
    50  tronic equipment, including software or other mechanisms  that  provide,
    51  program,  or  pair a part, calibrate functionality, or perform any other
    52  function required to bring the equipment or part  back  to  fully  func-
    53  tional condition, including any updates.
    54    (o) "Repair" means any act needed to restore digital electronic equip-
    55  ment or equipment to fully working order.
        S. 4104--A                          4
 
     1    (p)  "Maintenance"  means  any act necessary to keep currently working
     2  digital electronic equipment or equipment in fully working order.
     3    (q)  "Diagnosis"  means the process of identifying the issue or issues
     4  that cause digital electronic equipment or equipment to not be in  fully
     5  working order.
     6    (r)  "Modifications" or "modify" means any alteration to digital elec-
     7  tronic equipment that is not maintenance and not a repair.
     8    2. Requirements. (a) For digital electronic equipment  and  parts  for
     9  such  equipment  that are sold or used in this state, an original equip-
    10  ment manufacturer shall make available to any independent repair provid-
    11  er and owner of digital  electronic  equipment  manufactured  by  or  on
    12  behalf  of  or sold by such original equipment manufacturer, on fair and
    13  reasonable terms, any documentation, parts, and tools required  for  the
    14  diagnosis,  maintenance,  or repair of such digital electronic equipment
    15  and parts for such equipment.   Such  documentation,  parts,  and  tools
    16  shall  be  made  available  either  directly  by such original equipment
    17  manufacturer or via an authorized repair provider.
    18    (b) For equipment that contains an electronic security lock  or  other
    19  security-related  function,  the  original  equipment manufacturer shall
    20  make available to any owner and independent repair provider, on fair and
    21  reasonable terms, any special documentation, tools, and parts needed  to
    22  access  and  reset  the  lock or function when disabled in the course of
    23  diagnosis, maintenance, or repair of such equipment.    Such  documenta-
    24  tion,  tools, and parts may be made available through appropriate secure
    25  release systems.
    26    3. Limitations. (a) Nothing in this  section  shall  be  construed  to
    27  require  an  original equipment manufacturer to divulge any trade secret
    28  to any owner or independent service provider.
    29    (b) Nothing in this section shall be construed to alter the  terms  of
    30  any  arrangement  described  in paragraph (a) of subdivision one of this
    31  section in force between an authorized repair provider and  an  original
    32  equipment  manufacturer,  including, but not limited to, the performance
    33  or provision of warranty or recall repair work by an  authorized  repair
    34  provider  on  behalf  of  an original equipment manufacturer pursuant to
    35  such arrangement, except that any provision in such terms that  purports
    36  to  waive,  avoid, restrict, or limit the original equipment manufactur-
    37  er's obligations to comply with this section shall  be  void  and  unen-
    38  forceable.
    39    (c)  Nothing in this section shall be construed to require an original
    40  equipment manufacturer or an authorized repair provider to provide to an
    41  owner or independent repair provider access to information,  other  than
    42  documentation,  that  is provided by the original equipment manufacturer
    43  to an authorized repair provider pursuant to the terms of an arrangement
    44  described in paragraph (a) of subdivision one of this section.
    45    (d) Nothing in this section shall be construed to require an  original
    46  equipment  manufacturer  or authorized repair provider to make available
    47  any parts, tools or documentation  for  the  purposes  of  modifying  or
    48  making modifications to any digital electronic equipment.
    49    (e)  Nothing in this section shall be construed to require an original
    50  equipment manufacturer or authorized repair provider to  make  available
    51  any  parts,  tools, or documentation required for the diagnosis, mainte-
    52  nance, or repair of public safety communications equipment, the intended
    53  use of which is for emergency response  or  prevention  purposes  by  an
    54  emergency  service  organization  such  as  a  police, fire or emergency
    55  medical services agency.
        S. 4104--A                          5
 
     1    (f) Nothing in this section shall be construed to require any original
     2  equipment manufacturer or authorized repair provider to  make  available
     3  any  parts,  tools, or documentation required for the diagnosis, mainte-
     4  nance, or repair of digital electronic equipment in  a  manner  that  is
     5  inconsistent with or in violation of any federal law, such as gaming and
     6  entertainment consoles, related software and components.
     7    (g) Nothing in this section shall be construed to require any original
     8  equipment  manufacturer  or authorized repair provider to make available
     9  any parts, tools, or documentation required for the  diagnosis,  mainte-
    10  nance,  or  repair  of  any home appliance that has a digital electronic
    11  product embedded within it, including, but not  limited  to,  refrigera-
    12  tors,  ovens,  microwaves, air conditioning and heating units, including
    13  any related software and components.
    14    4. Exclusions. Nothing in this section shall apply to:
    15    (a) a motor vehicle manufacturer, manufacturer of motor vehicle equip-
    16  ment, or motor vehicle dealer acting in such capacity, or to any product
    17  or service of a motor vehicle manufacturer, manufacturer of motor  vehi-
    18  cle equipment, or motor vehicle dealer acting in such capacity;
    19    (b)  a  medical device, as defined in this section, or a digital elec-
    20  tronic product found in a medical setting including diagnostic, monitor-
    21  ing, or control equipment or any product or service that they offer; or
    22    (c) a manufacturer, distributor, importer, or dealer of  any  off-road
    23  (non-road)  equipment,  including  but  not limited to, farm and utility
    24  tractors, farm implements, farm machinery,  forestry  equipment,  indus-
    25  trial  equipment,  utility  equipment,  construction  equipment, compact
    26  construction equipment, mining equipment, turf, yard and  garden  equip-
    27  ment,  outdoor  power equipment (including portable generators), marine,
    28  all-terrain sports and recreational  vehicles  (including  racing  vehi-
    29  cles),   stand-alone   or   integrated  stationary  or  mobile  internal
    30  combustion engines, other power sources, (including without  limitation,
    31  generator  sets, electric/battery and fuel cell power), power tools, and
    32  any tools, technology, attachments, accessories, components  and  repair
    33  parts for any of the foregoing.
    34    5.  No  original  equipment manufacturer or authorized repair provider
    35  shall be liable for any damage or injury caused to any digital electron-
    36  ic equipment by an independent repair provider  or  owner  which  occurs
    37  during  the  course  of repair, diagnosis, maintenance, or modification,
    38  including but not limited  to,  any  indirect,  incidental,  special  or
    39  consequential  damages;  any  loss  of  data, privacy or profits; or any
    40  inability to use, or reduced functionality of,  the  digital  electronic
    41  equipment.
    42    6.  Enforcement  by  the  attorney  general. (a) Whenever the attorney
    43  general shall believe from evidence satisfactory to the attorney general
    44  that any person, firm, corporation or association or agent  or  employee
    45  thereof has engaged in or is about to engage in any acts or practices in
    46  violation  of  this section, the attorney general may bring an action in
    47  the name and on behalf of the people of the state of New York to  enjoin
    48  such  unlawful acts or practices and to obtain restitution of any moneys
    49  or property obtained directly or indirectly by any such  acts  or  prac-
    50  tices  in  violation  of  this  section.  In such proceeding preliminary
    51  relief may be granted under article sixty-three of  the  civil  practice
    52  law and rules.
    53    (b) Except as provided herein, before any violation of this section is
    54  sought  to  be  enjoined,  the  attorney general shall give such person,
    55  firm, corporation,  or  association  against  whom  such  proceeding  is
    56  contemplated  notice  and an opportunity to show in writing, within five
        S. 4104--A                          6
 
     1  business days after the delivery of such notice, why proceedings  should
     2  not  be  instituted  against  such person, firm, corporation, or associ-
     3  ation.  Such notice by the attorney general shall be delivered by certi-
     4  fied mail and by first-class mail with proof of mailing. In any proceed-
     5  ing  in which the attorney general seeks preliminary relief, such notice
     6  shall not be required upon a finding by the attorney general  that  such
     7  notice and opportunity is not in the public interest.
     8    (c) In connection with any proposed proceeding under this section, the
     9  attorney general is authorized to take proof and make a determination of
    10  the  relevant facts, and to issue subpoenas in accordance with the civil
    11  practice law and rules.
    12    (d) This subdivision shall apply to all acts or practices declared  to
    13  be in violation of this section, whether or not subject to any other law
    14  of this state, and shall not supersede, amend or repeal any other law of
    15  this  state  under  which the attorney general is authorized to take any
    16  action or conduct any inquiry.
    17    (e) Any person, firm, corporation or association or agent or  employee
    18  thereof  who  engages  in  any  acts  or  practices in violation of this
    19  section shall be liable to a civil penalty of not more than five hundred
    20  dollars for each violation, which shall accrue to the state of New  York
    21  and may be recovered in a civil action brought by the attorney general.
    22    (f)  Except  in  the instance of a dispute arising between an original
    23  equipment manufacturer and an  authorized  repair  provider  related  to
    24  either  party's compliance with an existing authorized repair agreement,
    25  an authorized repair provider shall have all  the  rights  and  remedies
    26  provided in this section.
    27    §  3. This act shall take effect one year after it shall have become a
    28  law.

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