N.Y. General Business Law § 399-nn: Sale of digital electronic equipment; diagnostic and repair information

§ 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) "Authorized repair provider" means an individual or business who

has an arrangement with the original equipment manufacturer under which

the original equipment manufacturer grants to the individual or business

a license to use a trade name, service mark, or other proprietary

identifier for the purposes of offering the services of diagnosis,

maintenance, or repair of digital electronic equipment under the name of

the original equipment manufacturer, or other arrangement with the

original equipment manufacturer to offer such services on behalf of the

original equipment manufacturer.

(b) "Digital electronic equipment" or "equipment" means any hardware

product 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 providers, its own employees, or any authorized

third-party providers. "Digital electronic equipment" or "equipment"

does not include any product 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, or similar kinds of

information 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

physical 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 for use or operation of such tool, or imposing impediments

to access or use of the tool to diagnose, maintain, or repair digital

electronic equipment using parts provided by the original equipment

manufacturer in accordance with this section, and in a reasonably timely

manner, 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

and which:

A. 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

repair of digital electronic equipment made by or on behalf of the

original equipment manufacturer; and

B. are not conditioned on an arrangement described in paragraph (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

practically 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

manufacturer, 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

franchise 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

manufacturing 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.

(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

equipment 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

electronic equipment, including software or other mechanisms that

provide, program, pair a part, calibrate functionality, or perform any

other function required to repair or update the original equipment or

part back to fully functional condition.

(o) "Repair" means any act needed to restore digital electronic

equipment 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

electronic equipment that is not maintenance and not a repair.

2. Requirements. 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 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 available either directly by 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 equipment, and who does not have an arrangement

described in paragraph (a) of subdivision one of this section with an

unaffiliated individual or business, shall be considered an authorized

repair provider with respect to such equipment.

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

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

manufacturer's obligations to comply with this section shall be void and

unenforceable.

(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,

maintenance, 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,

maintenance, 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,

maintenance, or repair of any home appliance that has a digital

electronic product embedded within it, including, but not limited to,

refrigerators, ovens, microwaves, air conditioning, 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

independent 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

equipment, or motor vehicle dealer acting in such capacity, or to any

product or service of a motor vehicle manufacturer, manufacturer of

motor vehicle equipment, or motor vehicle dealer acting in such

capacity;

(b) a medical device, as defined in this section, or a digital

electronic product found in a medical setting including diagnostic,

monitoring, 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,

industrial equipment, utility equipment, construction equipment, compact

construction equipment, mining equipment, turf, yard and garden

equipment, outdoor power equipment (including portable generators),

marine, all-terrain sports and recreational vehicles (including racing

vehicles), 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

transformers, 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,

accessories, components and repair parts for any of the foregoing.

(e) an electronic bicycle manufacturer, distributor, importer,

retailer or dealer.

5. No original equipment manufacturer or authorized repair provider

shall be liable for any damage or injury caused to any digital

electronic equipment, person, or property which occurs as a result of

repair, diagnosis, maintenance, or modification performed by an

independent repair provider or owner, including but not limited to, any

indirect, incidental, 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

warranty 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.

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

practices 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

association. Such notice by the attorney general shall be delivered by

certified mail and by first-class mail with proof of mailing. In any

proceeding 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.