S T A T E
O F
N E W
Y O R K
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3998
2015-2016 Regular Sessions
I N

S E N A T E

February 25, 2015
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Introduced by Sen. BOYLE -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation
certain diagnostic and repair information systems

to

the

sale

of

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1. The general business law is amended by adding a new section
399-nn to read as follows:
S 399-NN. SALE OF DIAGNOSTIC AND REPAIR INFORMATION SYSTEMS. 1. DEFINITIONS. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
SIGNIFICANCE HEREIN DEFINED UNLESS ANOTHER MEANING IS CLEARLY APPARENT
IN LANGUAGE OR CONTEXT:
(A) "ORIGINAL EQUIPMENT MANUFACTURER" 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 PARTS OF MACHINES TO
CONSUMERS OR OTHER END USERS AND IS ENGAGED IN THE DIAGNOSIS, SERVICE,
MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT TO SUCH PARTS OR
MACHINES.
(B) "EMBEDDED SOFTWARE" MEANS ANY PROGRAMMABLE INSTRUCTIONS PROVIDED
ON FIRMWARE DELIVERED WITH THE MACHINE OR PART FOR THE PURPOSES OF
MACHINE OPERATION, INCLUDING ALL RELEVANT PATCHES AND FIXES MADE BY THE
MANUFACTURER FOR THIS PURPOSE, INCLUDING, BUT NOT LIMITED TO SYNONYMS
"BASIC INTERNAL OPERATING SYSTEM", "INTERNAL OPERATING SYSTEM", "MACHINE
CODE", "ASSEMBLY CODE", "ROOT CODE", AND "MICROCODE".
(C) "AUTHORIZED REPAIR PROVIDER" MEANS AN ORAL OR WRITTEN ARRANGEMENT
FOR A DEFINITE OR INDEFINITE PERIOD IN WHICH A MANUFACTURER OR DISTRIBUTOR 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 MANUFACTURER.
(D) "FAIR AND REASONABLE TERMS" MEANS AN EQUITABLE PRICE IN LIGHT OF
RELEVANT FACTORS, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07386-03-5

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(I) THE NET COST TO THE AUTHORIZED REPAIR ORGANIZATIONS FOR SIMILAR
INFORMATION OBTAINED FROM MANUFACTURERS, LESS ANY DISCOUNTS, REBATES, OR
OTHER INCENTIVE PROGRAMS;
(II) THE COST TO THE MANUFACTURER FOR PREPARING AND DISTRIBUTING THE
INFORMATION, EXCLUDING ANY RESEARCH AND DEVELOPMENT COSTS INCURRED IN
DESIGNING AND IMPLEMENTING, UPGRADING OR ALTERING THE PRODUCT, BUT
INCLUDING AMORTIZED CAPITAL COSTS FOR THE PREPARATION AND DISTRIBUTION
OF THE INFORMATION;
(III) THE PRICE CHARGED BY OTHER MANUFACTURERS FOR SIMILAR INFORMATION;
(IV) THE PRICE CHARGED BY MANUFACTURERS FOR SIMILAR INFORMATION PRIOR
TO THE LAUNCH OF MANUFACTURER 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.
(E) "DATA SECURITY FEATURE" MEANS ANY FEATURE OF AN ELECTRONIC DEVICE
DESIGNED FOR THE SOLE PURPOSE OF PREVENTING THE USE OF AN ELECTRONIC
DEVICE IN WHICH IT IS INSTALLED FROM STARTING WITHOUT THE CORRECT ACTIVATION OR AUTHORIZATION CODE.
(F) "DOCUMENTATION" MEANS ANY MANUALS, DIAGRAMS, REPORTING OUTPUT, OR
SERVICE CODE DESCRIPTIONS PROVIDED TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
(G) "SERVICE PARTS" MEANS ANY REPLACEMENT PARTS, EITHER NEW OR USED,
MADE AVAILABLE BY THE MANUFACTURER TO THE AUTHORIZED REPAIR PROVIDER FOR
THE PURPOSES OF EFFECTING REPAIR.
(H) "INDEPENDENT REPAIR PROVIDER" MEANS A PERSON OR BUSINESS OPERATING
IN THE STATE OF NEW YORK THAT IS NOT AFFILIATED WITH A MANUFACTURER OR
MANUFACTURER'S AUTHORIZED REPAIR PROVIDER, WHICH IS ENGAGED IN THE DIAGNOSIS, SERVICE, MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT;
PROVIDED, HOWEVER, THAT, FOR THE PURPOSES OF THIS SECTION, A MANUFACTURER SHALL BE CONSIDERED AN INDEPENDENT REPAIR PROVIDER FOR THE PURPOSES
OF THOSE INSTANCES WHEN SUCH MANUFACTURER ENGAGES IN THE DIAGNOSIS,
SERVICE, MAINTENANCE OR REPAIR OF DIGITAL ELECTRONIC EQUIPMENT THAT ARE
NOT AFFILIATED WITH THE MANUFACTURER.
(I) "DIGITAL ELECTRONIC EQUIPMENT" MEANS A PART OR MACHINE ORIGINALLY
MANUFACTURED FOR DISTRIBUTION AND SALE IN THE UNITED STATES.
(J) "OWNER" MEANS A PERSON OR BUSINESS WHO OWNS OR LEASES A DIGITAL
ELECTRONIC PRODUCT PURCHASED OR USED IN THE STATE OF NEW YORK.
(K) "REMOTE DIAGNOSTICS" MEANS ANY REMOTE DATA TRANSFER FUNCTION
BETWEEN A DIGITAL ELECTRONIC MACHINE AND THE PROVIDER OF REPAIR SERVICES
INCLUDING FOR PURPOSES OF REMOTE DIAGNOSTICS, SETTING CONTROLS, OR
LOCATION IDENTIFICATION.
(L) "TRADE SECRET" MEANS ANYTHING TANGIBLE OR INTANGIBLE OR ELECTRONICALLY 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 EIGHTEEN OF THE UNITED STATES CODE.
(M) "MOTOR VEHICLE" MEANS ANY VEHICLE THAT IS DESIGNED FOR TRANSPORTING PERSONS OR PROPERTY ON A STREET OR HIGHWAY AND THAT IS CERTIFIED BY
THE MANUFACTURER UNDER ALL APPLICABLE FEDERAL SAFETY AND EMISSIONS STAN-

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DARDS AND REQUIREMENTS FOR DISTRIBUTION AND SALE IN THE UNITED STATES,
BUT EXCLUDING (I) A MOTORCYCLE; (II) A VEHICLE WITH A GROSS VEHICLE
WEIGHT OVER 14,000 POUNDS; OR (III) A RECREATIONAL VEHICLE OR AN AUTO
HOME EQUIPPED FOR HABITATION.
(N) "MOTOR VEHICLE MANUFACTURER" MEANS ANY PERSON OR BUSINESS ENGAGED
IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING NEW MOTOR VEHICLES.
(O) "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 CONSUMERS OR OTHER END USERS 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 FRANCHISE AGREEMENT.
2. (A) MANUFACTURERS OF DIGITAL ELECTRONIC PARTS AND MACHINES SOLD OR
USED IN THE STATE OF NEW YORK SHALL: I. MAKE AVAILABLE FOR PURCHASE BY
INDEPENDENT REPAIR FACILITIES OR OTHER OWNERS OF PRODUCTS MANUFACTURED
BY SUCH MANUFACTURER DIAGNOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR
TECHNICAL UPDATES, UPDATES AND CORRECTIONS TO FIRMWARE, AND RELATED
DOCUMENTATION, IN THE SAME MANNER SUCH MANUFACTURER MAKES AVAILABLE TO
ITS AUTHORIZED REPAIR CHANNEL. EACH MANUFACTURER SHALL PROVIDE ACCESS TO
SUCH
MANUFACTURER'S DIAGNOSTIC AND REPAIR INFORMATION SYSTEM FOR
PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES UPON FAIR AND
REASONABLE TERMS; AND
II. MAKE AVAILABLE FOR PURCHASE BY THE PRODUCT OWNER, OR THE AUTHORIZED AGENT OF THE OWNER, SUCH SERVICE PARTS, INCLUSIVE OF ANY UPDATES TO
THE FIRMWARE OF THE PARTS, FOR PURCHASE UPON FAIR AND REASONABLE TERMS.
NOTHING IN THIS SUBDIVISION SHALL REQUIRE THE ORIGINAL EQUIPMENT
MANUFACTURER TO SELL SERVICE PARTS IF THE SERVICE PARTS ARE NO LONGER
AVAILABLE TO THE ORIGINAL EQUIPMENT MANUFACTURER OR THE AUTHORIZED
REPAIR PROVIDER OF THE ORIGINAL EQUIPMENT MANUFACTURER.
(B) ANY MANUFACTURER THAT SELLS ANY DIAGNOSTIC, SERVICE, OR REPAIR
INFORMATION TO ANY INDEPENDENT REPAIR PROVIDER OR OTHER THIRD PARTY
PROVIDER IN A FORMAT THAT IS STANDARDIZED WITH OTHER MANUFACTURERS, 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 FUNCTIONALITY THAT IS NOT AVAILABLE IN SUCH STANDARDIZED
FORMAT.
(C) EACH MANUFACTURER OF DIGITAL ELECTRONIC PRODUCTS 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 MANUFACTURER MAKES AVAILABLE TO ITS OWN REPAIR OR ENGINEERING STAFF
OR ANY AUTHORIZED REPAIR CHANNELS. EACH MANUFACTURER SHALL OFFER SUCH
TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT REPAIR FACILITIES UPON FAIR
AND REASONABLE TERMS.
EACH MANUFACTURER 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.

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(D) MANUFACTURERS OF DIGITAL ELECTRONIC 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 SECURITY-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 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 A MANUFACTURER 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 A
MANUFACTURER INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR PROVISION
OF WARRANTY OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR PROVIDER ON
BEHALF OF A MANUFACTURER PURSUANT TO SUCH AUTHORIZED REPAIR AGREEMENT;
PROVIDED, HOWEVER, THAT ANY PROVISION IN SUCH AN AUTHORIZED REPAIR
PROVIDER THAT PURPORTS TO WAIVE, AVOID, RESTRICT OR LIMIT A MANUFACTURER'S COMPLIANCE WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.
5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE MANUFACTURERS
OR AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER OR INDEPENDENT REPAIR
PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY A
MANUFACTURER TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF
AN AUTHORIZING AGREEMENT.
6. NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS
OR MOTOR VEHICLE DEALERS AS DEFINED IN THIS SECTION.
7. (A) IN ADDITION TO ANY OTHER REMEDIES THAT MAY BE AVAILABLE AT LAW,
A VIOLATION OF THIS SECTION SHALL BE DEEMED TO BE AN UNFAIR METHOD OF
COMPETITION AND AN UNFAIR OR DECEPTIVE ACT OR PRACTICE IN THE CONDUCT OF
TRADE OR COMMERCE IN VIOLATION OF SECTION THREE HUNDRED FORTY-NINE OF
THIS CHAPTER.
(B) AN INDEPENDENT REPAIR PROVIDER OR OWNER WHO BELIEVES THAT A
MANUFACTURER HAS FAILED TO PROVIDE INFORMATION, INCLUDING DOCUMENTATION,
UPDATES TO FIRMWARE, SAFETY AND SECURITY CORRECTIONS, DIAGNOSTICS,
DOCUMENTATION, OR A TOOL REQUIRED BY THIS SECTION MUST NOTIFY THE
MANUFACTURER IN WRITING AND GIVE THE MANUFACTURER THIRTY DAYS FROM THE
TIME THE MANUFACTURER RECEIVES THE COMPLAINT TO CURE THE FAILURE. IF THE
MANUFACTURER CURES SUCH COMPLAINT WITHIN THE CURE PERIOD, DAMAGES SHALL
BE LIMITED TO ACTUAL DAMAGES IN ANY SUBSEQUENT LITIGATION.
(C) 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 2. This act shall take effect on the sixtieth day after it shall
have become a law.