Changes the laws regarding consumer products so that certain individuals and businesses have a right to repair information from certain manufacturers

FIRST REGULAR SESSION HOUSE BILL NO. 1118 101ST GENERAL ASSEMBLY INTRODUCED BY REPRESENTATIVE WEBER. 2319H.01I DANA RADEMAN MILLER, Chief Clerk AN ACT To amend chapter 407, RSMo, by adding thereto two new sections relating to product repair requirements, with a penalty provision. Be it enacted by the General Assembly of the state of Missouri, as follows: Section A. Chapter 407, RSMo, is amended by adding thereto two new sections, to be 2 known as sections 407.652 and 407.653, to read as follows: 407.652. As used in sections 407.652 and 407.653, the following terms mean: 2 (1) "Authorized repair provider", an individual or business that has an oral or 3 written arrangement for a definite or indefinite period in which a manufacturer or 4 distributor transfers to a separate business organization or individual license to use a trade 5 name, service mark, or relative characteristic for the purposes of offering repair services 6 under the name of the manufacturer; 7 (2) "Documentation", manuals, diagrams, reporting output, schematic diagrams, 8 or service code descriptions provided to the authorized repair provider for the purposes 9 of repair or refurbishment; 10 (3) "Embedded software", programmable instructions provided on firmware 11 delivered with certain products for the purposes of product operation, including all 12 relevant safety, security, and defect patches and fixes made by the manufacturer for this 13 purpose. "Embedded software" shall include all software that satisfies this definition 14 regardless if called a different name including, but not limited to, assembly code, basic 15 internal operating system, internal operating system, machine code, microcode, or root 16 code; EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 1118 2 17 (4) "Fair and reasonable terms", an equitable price in light of relevant factors 18 including, but not limited to: 19 (a) The net cost to the authorized repair provider for similar parts obtained from 20 manufacturers, less any discounts, rebates, or other incentive programs; 21 (b) The cost to the manufacturer for preparing and distributing the parts or 22 product, excluding any research and development costs incurred in designing and 23 implementing, upgrading, or altering the product, but including amortized capital costs 24 for the preparation and distribution of the parts; and 25 (c) The price charged by other manufacturers for similar parts or products; 26 (5) "Independent repair provider", an individual or business operating in the state 27 that is not affiliated with a manufacturer or a manufacturer's authorized dealer of a 28 product and that is engaged in the diagnosis, service, maintenance, or repair of a product. 29 A manufacturer's authorized dealer shall be considered an "independent repair provider" 30 if the dealer engages in the diagnosis, service, maintenance, or repair of a product that is 31 not affiliated with the manufacturer; 32 (6) "Manufacturer", an individual or business that, in the ordinary course of its 33 business, is engaged in selling or leasing new products to consumers or other end users and 34 is engaged in the diagnosis, service, maintenance, or repair of those products; 35 (7) "Owner", an individual or business that lawfully acquires a product purchased 36 or used in the state; 37 (8) "Product", any product regardless of the date purchased. "Product" shall 38 exclude motor vehicles; 39 (9) "Remote diagnostics", a remote data-transfer function between certain 40 products and a provider of repair services, including for purposes of remote diagnostics, 41 settings controls, or location identification; 42 (10) "Service parts", replacement parts, either new or used, made available by the 43 manufacturer to the authorized repair provider for the purposes of repair; 44 (11) "Trade secret", anything tangible or intangible or electronically stored or kept 45 that constitutes, represents, evidences, or records intellectual property including, but not 46 limited to: 47 (a) Secret or confidentially held designs, processes, procedures, formulas, 48 inventions, or improvements; 49 (b) Secrets or confidentially held scientific, technical, merchandising, production, 50 financial, business, or management information; or 51 (c) Any "trade secret" as that term is defined under paragraph (3) of 18 U.S.C. 52 Section 1839. HB 1118 3 407.653. 1. Owners of products purchased or used in this state shall have the right 2 to: 3 (1) Access the same diagnostic and repair information of products manufactured 4 by the manufacturer as the manufacturer makes available to independent repair facilities 5 or authorized repair providers. Such information shall be provided in the same manner 6 and time as provided to authorized repair providers. Such information shall include, but 7 not be limited to, repair technical updates, diagnostic software, service access passwords, 8 updates and corrections to firmware, and related documentation; and 9 (2) Purchase service parts available upon fair and reasonable terms. Such service 10 parts shall be made available in the same manner and time as given to authorized repair 11 providers. Such service parts shall include updates to firmware of parts. 12 13 Nothing in this section shall require the manufacturer to sell service parts if the service 14 parts are no longer available to the manufacturer or the authorized repair channel of the 15 manufacturer. 16 2. An authorized repair provider shall have the right to purchase diagnostic, 17 service, or repair information in a format standardized with other manufacturers instead 18 of a proprietary format from a manufacturer if the manufacturer sells diagnostic, service, 19 or repair information to independent repair providers or third-party providers in such a 20 standardized format or if the manufacturer offers terms and conditions more favorable to 21 independent repair providers or third-party providers than the manner and the terms and 22 conditions that are available to an authorized repair provider. However, this subsection 23 shall not apply if the proprietary format includes diagnostic, service, repair, or dealership 24 operations information or functionality not available in a standardized format. 25 3. Owners and independent repair facilities shall have the right to purchase from 26 manufacturers of products sold or used in this state all diagnostic repair tools, 27 incorporating the same diagnostic repair and remote diagnostic capabilities that the 28 manufacturer makes available to its own repair or engineering staff or any authorized 29 repair providers, upon fair and reasonable terms. 30 4. Manufacturers that provide repair information to aftermarket tools, diagnostics, 31 or third-party service information publications and systems have fully satisfied their 32 obligations under this section and thereafter are not responsible for the content and 33 functionality of aftermarket diagnostic tools or service information systems. 34 5. Manufacturers of products sold or used in the state for the purposes of providing 35 security-related functions shall not exclude diagnostic, service, or repair information 36 necessary to reset a security-related electronic function from information provided to HB 1118 4 37 owners and independent repair facilities. If necessary for security purposes, 38 manufacturers may provide information necessary to reset and unlock system or 39 security-related electronic modules to owners and independent repair facilities through an 40 appropriate secure data release system. 41 6. Nothing in this section shall require the manufacturer to divulge a trade secret. 42 7. Notwithstanding any law or rule to the contrary, this section shall not be read, 43 interpreted, or construed to abrogate, interfere with, contradict, or alter the terms of an 44 agreement executed between an authorized repair provider and a manufacturer including, 45 but not limited to, performing warranty or recall repair work by an authorized repair 46 provider on behalf of a manufacturer pursuant to the authorized repair agreement. 47 Except in the case of a dispute arising between a manufacturer and its authorized repair 48 provider related to either party's compliance with an existing repair agreement, an 49 authorized repair provider has all the rights and remedies provided in this section. 50 8. This section shall not require manufacturers or authorized repair providers to 51 provide an owner or independent repair provider access to nondiagnostic and nonrepair 52 information provided by a manufacturer to an authorized repair provider pursuant to the 53 terms of an authorizing agreement. 54 9. (1) An independent repair provider or owner that believes that a manufacturer 55 has failed to provide information, including documentation, updates to firmware, safety 56 and security corrections, diagnostics, documentation, or a tool required by this section, 57 shall notify the manufacturer in writing and give the manufacturer thirty days from the 58 time the manufacturer receives the complaint to cure the failure. If the manufacturer 59 cures the complaint within thirty days, damages are limited to actual damages in any 60 subsequent litigation. 61 (2) If the manufacturer fails to respond to the notice provided in subdivision (1) of 62 this subsection or if an independent repair facility or owner is not satisfied with the 63 manufacturer's cure, the independent repair facility or owner may file a complaint in 64 district court. The complaint shall include: 65 (a) Written information confirming that the complainant attempted to acquire and 66 use, through the then-available standard support function provided by the manufacturer, 67 all relevant diagnostics, tools, service parts, documentation, and updates to embedded 68 software, including communication with customer assistance via the manufacturer's 69 then-standard process, if made available by the manufacturer; and 70 (b) Evidence of manufacturer notification as required in subdivision (1) of this 71 subsection. HB 1118 5 72 10. No manufacturer shall be required to provide any information or service parts 73 under subsection 1 of this section if the product for which the information or service parts 74 are sought is under a valid warranty for repair or replacement of the product. 75 11. The attorney general shall enforce this section. Each violation of this section 76 shall be punishable by a five-hundred-dollar fine, which shall be deposited in the general 77 revenue fund established under section 33.543. T