Digital Fair Repair Act

1.1 A bill for an act​ 1.2 relating to commerce; digital fair repair; requiring penalties; proposing coding for​ 1.3 new law in Minnesota Statutes, chapter 325E.​ 1.4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:​ 1.5 Section 1. [325E.72] DIGITAL FAIR REPAIR.​ 1.6 Subdivision 1. Short title. This act may be cited as the "Digital Fair Repair Act."​ 1.7 Subd. 2. Definitions. (a) For the purposes of this section, the following terms have the​ 1.8 meanings given them.​ 1.9 (b) "Authorized repair provider" means an individual or business who is unaffiliated​ 1.10 with an original equipment manufacturer and who has: (1) an arrangement with the original​ 1.11 equipment manufacturer, for a definite or indefinite period, under which the original​ 1.12 equipment manufacturer grants to the individual or business a license to use a trade name,​ 1.13 service mark, or other proprietary identifier to offer diagnostic, maintenance, or repair​ 1.14 services for digital electronic equipment under the name of the original equipment​ 1.15 manufacturer; or (2) an arrangement with the original equipment manufacturer to offer​ 1.16 diagnostic, maintenance, or repair services for digital electronic equipment on behalf of the​ 1.17 original equipment manufacturer. An original equipment manufacturer that offers diagnostic,​ 1.18 maintenance, or repair services for the original equipment manufacturer's digital electronic​ 1.19 equipment is considered an authorized repair provider with respect to the digital electronic​ 1.20 equipment if the original equipment manufacturer does not have an arrangement described​ 1.21 in this paragraph with an unaffiliated individual or business.​ 1​Section 1.​ 23-02055 as introduced​02/02/23 REVISOR RSI/BM​ SENATE​ STATE OF MINNESOTA​ S.F. No. 1598​NINETY-THIRD SESSION​ (SENATE AUTHORS: KUPEC, Klein, Koran and Latz)​ OFFICIAL STATUS​D-PG​DATE​ Introduction and first reading​02/13/2023​ Referred to Commerce and Consumer Protection​ 2.1 (c) "Digital electronic equipment" or "equipment" means any product that depends, in​ 2.2 whole or in part, on digital electronics embedded in or attached to the product in order for​ 2.3 the product to function.​ 2.4 (d) "Documentation" means a manual, diagram, reporting output, service code description,​ 2.5 schematic diagram, or similar information provided to an authorized repair provider to​ 2.6 facilitate diagnostic, maintenance, or repair services for digital electronic equipment.​ 2.7 (e) "Embedded software" means any programmable instructions provided on firmware​ 2.8 delivered with digital electronic equipment, or with a part for the equipment, in order to​ 2.9 operate the equipment. Embedded software includes all relevant patches and fixes made by​ 2.10 the manufacturer of the equipment or part in order to operate the equipment.​ 2.11 (f) "Fair and reasonable terms" means, with respect to:​ 2.12 (1) parts offered by an original equipment manufacturer:​ 2.13 (i) costs that are fair to both parties, considering the agreed-upon conditions, promised​ 2.14 quality, and timeliness of delivery; and​ 2.15 (ii) terms that do not impose on an owner or an independent repair provider:​ 2.16 (A) a substantial obligation to use or restrict the use of the part to diagnose, maintain,​ 2.17 or repair agricultural equipment sold, leased, or otherwise supplied by the original equipment​ 2.18 manufacturer, including a condition that the owner or independent repair provider become​ 2.19 an authorized repair provider of the original equipment manufacturer; or​ 2.20 (B) a requirement that a part be registered, paired with, or approved by the original​ 2.21 equipment manufacturer or an authorized repair provider before the part is operational or​ 2.22 prohibit an original equipment manufacturer from imposing any additional cost or burden​ 2.23 that is not reasonably necessary or is designed to be an impediment on the owner or​ 2.24 independent repair provider;​ 2.25 (2) tools, software, and documentation offered by an original equipment manufacturer:​ 2.26 (i) costs that are equivalent to the lowest actual cost for which the original equipment​ 2.27 manufacturer offers the tool, software, or documentation to an authorized repair provider,​ 2.28 including any discount, rebate, or other financial incentive offered to an authorized repair​ 2.29 provider; and​ 2.30 (ii) terms that are equivalent to the most favorable terms under which an original​ 2.31 equipment manufacturer offers the tool, software, or documentation to an authorized repair​ 2​Section 1.​ 23-02055 as introduced​02/02/23 REVISOR RSI/BM​ 3.1 provider, including the methods and timeliness of delivery of the tool, software, or​ 3.2 documentation, do not impose on an owner or an independent repair provider:​ 3.3 (A) a substantial obligation to use or restrict the use of the tool, software, or​ 3.4 documentation to diagnose, maintain, or repair agricultural equipment sold, leased, or​ 3.5 otherwise supplied by the original equipment manufacturer, including a condition that the​ 3.6 owner or independent repair provider become an authorized repair provider of the original​ 3.7 equipment manufacturer; or​ 3.8 (B) a requirement that a tool be registered, paired with, or approved by the original​ 3.9 equipment manufacturer or an authorized repair provider before the part or tool is operational;​ 3.10 and​ 3.11 (3) documentation offered by an original equipment manufacturer: that the documentation​ 3.12 is made available by the original equipment manufacturer at no charge, except that when​ 3.13 the documentation is requested in physical printed form, a charge may be included for the​ 3.14 reasonable actual costs of preparing and sending the copy.​ 3.15 (g) "Firmware" means a software program or set of instructions programmed on digital​ 3.16 electronic equipment, or on a part of the equipment, in order to allow the equipment or part​ 3.17 to communicate with other computer hardware.​ 3.18 (h) "Independent repair provider" means an individual or business operating in Minnesota​ 3.19 that: (1) does not have an arrangement described in paragraph (b) with an original equipment​ 3.20 manufacturer; (2) is not affiliated with any individual or business that has an arrangement​ 3.21 described in paragraph (b); and (3) is engaged in providing diagnostic, maintenance, or​ 3.22 repair services for digital electronic equipment. An original equipment manufacturer or,​ 3.23 with respect to the original equipment manufacturer, an individual or business that has an​ 3.24 arrangement with the original equipment manufacturer or is affiliated with an individual or​ 3.25 business that has an arrangement with that original equipment manufacturer, is considered​ 3.26 an independent repair provider for purposes of the instances the original equipment​ 3.27 manufacturer engages in diagnostic, maintenance, or repair services for digital electronic​ 3.28 equipment that is not manufactured by or sold under the name of the original equipment​ 3.29 manufacturer.​ 3.30 (i) "Manufacturer of motor vehicle equipment" means a business engaged in the business​ 3.31 of manufacturing or supplying components used to manufacture, maintain, or repair a motor​ 3.32 vehicle.​ 3.33 (j) "Motor vehicle" means a vehicle that is: (1) designed to transport persons or property​ 3.34 on a street or highway; and (2) certified by the manufacturer under (i) all applicable federal​ 3​Section 1.​ 23-02055 as introduced​02/02/23 REVISOR RSI/BM​ 4.1 safety and emissions standards, and (ii) all requirements for distribution and sale in the​ 4.2 United States. Motor vehicle does not include a motorcycle, a recreational vehicle, or an​ 4.3 auto home equipped for habitation.​ 4.4 (k) "Motor vehicle dealer" means an individual or business that, in the ordinary course​ 4.5 of business: (1) is engaged in the business of selling or leasing new motor vehicles to an​ 4.6 individual or business pursuant to a franchise agreement; (2) has obtained a license under​ 4.7 section 168.27; and (3) is engaged in providing diagnostic, maintenance, or repair services​ 4.8 for motor vehicles or motor vehicle engines pursuant to a franchise agreement.​ 4.9 (l) "Motor vehicle manufacturer" means a business engaged in the business of​ 4.10 manufacturing or assembling new motor vehicles.​ 4.11 (m) "Original equipment manufacturer" means a business engaged in the business of​ 4.12 selling or leasing to any individual or business new digital electronic equipment manufactured​ 4.13 by or on behalf of the original equipment manufacturer.​ 4.14 (n) "Owner" means an individual or business that owns or leases digital electronic​ 4.15 equipment purchased or used in Minnesota.​ 4.16 (o) "Part" means any replacement part, either new or used, made available by an original​ 4.17 equipment manufacturer to facilitate the maintenance or repair of digital electronic equipment​ 4.18 manufactured or sold by the original equipment manufacturer.​ 4.19 (p) "Trade secret" has the meaning given in section 325C.01, subdivision 5.​ 4.20 Subd. 3. Requirements. (a) For digital electronic equipment and parts for the equipment​ 4.21 sold or used in Minnesota, an original equipment manufacturer must make available to any​ 4.22 independent repair provider or to the owner of digital electronic equipment manufactured​ 4.23 by or on behalf of, or sold by, the original equipment manufacturer, on fair and reasonable​ 4.24 terms, documentation, parts, and tools, inclusive of any updates to information or embedded​ 4.25 software, for diagnostic, maintenance, or repair purposes. Nothing in this section requires​ 4.26 an original equipment manufacturer to make available a part if the part is no longer available​ 4.27 to the original equipment manufacturer.​ 4.28 (b) For equipment that contains an electronic security lock or other security-related​ 4.29 function, the original equipment manufacturer must make available to the owner and to​ 4.30 independent repair providers, on fair and reasonable terms, any special documentation,​ 4.31 tools, and parts needed to reset the lock or function when disabled in the course of performing​ 4.32 diagnostic, maintenance, or repair services on the equipment. Documentation, tools, and​ 4.33 parts may be made available through appropriate secure release systems.​ 4​Section 1.​ 23-02055 as introduced​02/02/23 REVISOR RSI/BM​ 5.1 Subd. 4. Enforcement by attorney general. A violation of this section is an unlawful​ 5.2 practice under section 325D.44. All remedies, penalties, and authority granted to the attorney​ 5.3 general under chapter 8 are available to the attorney general to enforce this section.​ 5.4 Subd. 5. Limitations. (a) Nothing in this section requires an original equipment​ 5.5 manufacturer to divulge a trade secret to an owner or an independent service provider,​ 5.6 except as necessary to provide documentation, parts, and tools on fair and reasonable terms.​ 5.7 (b) Nothing in this section alters the terms of any arrangement described in subdivision​ 5.8 2, paragraph (b), including but not limited to the performance or provision of warranty or​ 5.9 recall repair work by an authorized repair provider on behalf of an original equipment​ 5.10 manufacturer pursuant to the arrangement, in force between an authorized repair provider​ 5.11 and an original equipment manufacturer. A provision in the terms of an arrangement​ 5.12 described in subdivision 2, paragraph (b), that purports to waive, avoid, restrict, or limit the​ 5.13 original equipment manufacturer's obligations to comply with this section is void and​ 5.14 unenforceable.​ 5.15 (c) Nothing in this section requires an original equipment manufacturer or an authorized​ 5.16 repair provider to provide to an owner or independent repair provider access to information,​ 5.17 other than documentation, that is provided by the original equipment manufacturer to an​ 5.18 authorized repair provider pursuant to the terms of an arrangement described in subdivision​ 5.19 2, paragraph (b).​ 5.20 Subd. 6. Exclusions. (a) Nothing in this section applies to: (1) a motor vehicle​ 5.21 manufacturer, manufacturer of motor vehicle equipment, or motor vehicle dealer acting in​ 5.22 that capacity; or (2) any product or service of a motor vehicle manufacturer, manufacturer​ 5.23 of motor vehicle equipment, or motor vehicle dealer acting in that capacity.​ 5.24 (b) Nothing in this section applies to manufacturers or distributors of a medical device​ 5.25 as defined in the Federal Food, Drug, and Cosmetic Act, codified at United States Code,​ 5.26 title 21, section 301 et seq., or a digital electronic product or software manufactured for use​ 5.27 in a medical setting including diagnostic, monitoring, or control equipment or any product​ 5.28 or service that the manufacturer or distributor of a medical device offers.​ 5.29 Subd. 7. Applicability. This section applies to equipment sold or in use on or after​ 5.30 January 1, 2024.​ 5.31 EFFECTIVE DATE. This section is effective January 1, 2024.​ 5​Section 1.​ 23-02055 as introduced​02/02/23 REVISOR RSI/BM​