Digital Fair Repair Act

1.1 A bill for an act​ 1.2 relating to commerce; providing for digital fair repair; providing penalties;​ 1.3 proposing coding for 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 the services of diagnosis, maintenance,​ 1.14 or repair of digital electronic equipment under the name of the original equipment​ 1.15 manufacturer, or (2) other arrangement with the original equipment manufacturer to offer​ 1.16 diagnostic, maintenance, or repair services on behalf of the original equipment manufacturer.​ 1.17 An original equipment manufacturer that offers diagnostic, maintenance, or repair services​ 1.18 for the original equipment manufacturer's digital electronic equipment is considered an​ 1.19 authorized repair provider with respect to the digital electronic equipment if the original​ 1.20 equipment manufacturer does not have an arrangement described in this paragraph with an​ 1.21 unaffiliated individual or business.​ 1​Section 1.​ 21-02218 as introduced​02/08/21 REVISOR RSI/EE​ SENATE​ STATE OF MINNESOTA​ S.F. No. 2080​NINETY-SECOND SESSION​ (SENATE AUTHORS: JOHNSON STEWART and Marty)​ OFFICIAL STATUS​D-PG​DATE​ Introduction and first reading​03/15/2021​ Referred to Commerce and Consumer Protection Finance and Policy​ 2.1 (c) "Digital electronic equipment" or "equipment" means any product that depends for​ 2.2 its functioning, in whole or in part, on digital electronics embedded in or attached to the​ 2.3 product.​ 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 affect​ 2.6 the services of diagnosis, maintenance, or repair of 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 to operate​ 2.9 equipment. Embedded software includes all relevant patches and fixes made by the​ 2.10 manufacturer of the equipment or part for these purposes.​ 2.11 (f) "Fair and reasonable terms" for obtaining a part, tool, or documentation means at​ 2.12 costs and terms, including convenience of delivery and rights of use, equivalent to what is​ 2.13 offered by the original equipment manufacturer to an authorized repair provider, using the​ 2.14 net costs that would be incurred by an authorized repair provider to obtain an equivalent​ 2.15 part, tool, or documentation from the original equipment manufacturer, accounting for any​ 2.16 discounts, rebates, or other incentive programs in arriving at the actual net costs. For​ 2.17 documentation, including any relevant updates, "fair and reasonable terms" means at no​ 2.18 charge, except that when the documentation is requested in physical printed form a fee for​ 2.19 the reasonable actual costs to prepare and send the copy may be charged.​ 2.20 (g) "Firmware" means a software program or set of instructions programmed on digital​ 2.21 electronic equipment or on a part for the equipment to allow the equipment or part to​ 2.22 communicate with other computer hardware.​ 2.23 (h) "Independent repair provider" means an individual or business operating in Minnesota​ 2.24 that (1) does not have an arrangement described in paragraph (b) with an original equipment​ 2.25 manufacturer, (2) is not affiliated with any individual or business that has an arrangement​ 2.26 described in paragraph (b), and (3) is engaged in the services of diagnosis, maintenance, or​ 2.27 repair of digital electronic equipment. An original equipment manufacturer or, with respect​ 2.28 to the original equipment manufacturer, an individual or business that has an arrangement​ 2.29 with the original equipment manufacturer or is affiliated with an individual or business that​ 2.30 has such an arrangement with that original equipment manufacturer is considered an​ 2.31 independent repair provider for purposes of the instances it engages in the services of​ 2.32 diagnosis, maintenance, or repair of digital electronic equipment that is not manufactured​ 2.33 by or sold under the name of the original equipment manufacturer.​ 2​Section 1.​ 21-02218 as introduced​02/08/21 REVISOR RSI/EE​ 3.1 (i) "Manufacturer of motor vehicle equipment" means a business engaged in the business​ 3.2 of manufacturing or supplying components used to manufacture, maintain, or repair a motor​ 3.3 vehicle.​ 3.4 (j) "Motor vehicle" means a vehicle that is designed to transport persons or property on​ 3.5 a street or highway and is certified by the manufacturer under all applicable federal safety​ 3.6 and emissions standards and requirements for distribution and sale in the United States.​ 3.7 Motor vehicle does not include:​ 3.8 (1) a motorcycle; or​ 3.9 (2) a recreational vehicle or an auto home equipped for habitation.​ 3.10 (k) "Motor vehicle dealer" means an individual or business that, in the ordinary course​ 3.11 of business, (1) is engaged in the business of selling or leasing new motor vehicles to an​ 3.12 individual or business pursuant to a franchise agreement, (2) has obtained a license under​ 3.13 section 168.27, and (3) is engaged in the services of diagnosis, maintenance, or repair of​ 3.14 motor vehicles or motor vehicle engines pursuant to the franchise agreement.​ 3.15 (l) "Motor vehicle manufacturer" means a business engaged in the business of​ 3.16 manufacturing or assembling new motor vehicles.​ 3.17 (m) "Original equipment manufacturer" means a business engaged in the business of​ 3.18 selling or leasing to any individual or business new digital electronic equipment manufactured​ 3.19 by or on behalf of the original equipment manufacturer.​ 3.20 (n) "Owner" means an individual or business that owns or leases digital electronic​ 3.21 equipment purchased or used in Minnesota.​ 3.22 (o) "Part" means any replacement part, either new or used, made available by an original​ 3.23 equipment manufacturer to affect the services of maintenance or repair of digital electronic​ 3.24 equipment manufactured or sold by the original equipment manufacturer.​ 3.25 (p) "Trade secret" has the meaning given in section 325C.01, subdivision 5.​ 3.26 Subd. 3. Requirements. (a) For digital electronic equipment and parts for the equipment​ 3.27 sold or used in Minnesota, an original equipment manufacturer must make available on fair​ 3.28 and reasonable terms documentation, parts, and tools, inclusive of any updates to information​ 3.29 or embedded software, to any independent repair provider or to the owner of digital electronic​ 3.30 equipment manufactured by or on behalf of, or sold by, the original equipment manufacturer​ 3.31 for purposes of diagnosis, maintenance, or repair. Nothing in this section requires an original​ 3.32 equipment manufacturer to make available a part if the part is no longer available to the​ 3.33 original equipment manufacturer.​ 3​Section 1.​ 21-02218 as introduced​02/08/21 REVISOR RSI/EE​ 4.1 (b) For equipment that contains an electronic security lock or other security-related​ 4.2 function, the original equipment manufacturer must make available to the owner and to​ 4.3 independent repair providers, on fair and reasonable terms, any special documentation,​ 4.4 tools, and parts needed to reset the lock or function when disabled in the course of diagnosis,​ 4.5 maintenance, or repair of the equipment. Documentation, tools, and parts may be made​ 4.6 available through appropriate secure release systems.​ 4.7 Subd. 4. Enforcement by attorney general. A violation of this section is an unlawful​ 4.8 practice under section 325D.44. All remedies, penalties, and authority granted to the attorney​ 4.9 general under chapter 8 are available to the attorney general to enforce this section.​ 4.10 Subd. 5. Limitations. (a) Nothing in this section requires an original equipment​ 4.11 manufacturer to divulge a trade secret to an owner or an independent service provider,​ 4.12 except as necessary to provide documentation, parts, and tools on fair and reasonable terms.​ 4.13 (b) Nothing in this section alters the terms of any arrangement described in subdivision​ 4.14 2, paragraph (b), in force between an authorized repair provider and an original equipment​ 4.15 manufacturer, including but not limited to the performance or provision of warranty or recall​ 4.16 repair work by an authorized repair provider on behalf of an original equipment manufacturer​ 4.17 pursuant to such arrangement. A provision in the terms of an arrangement described in​ 4.18 subdivision 2, paragraph (b), that purports to waive, avoid, restrict, or limit the original​ 4.19 equipment manufacturer's obligations to comply with this section is void and unenforceable.​ 4.20 (c) Nothing in this section requires an original equipment manufacturer or an authorized​ 4.21 repair provider to provide to an owner or independent repair provider access to information,​ 4.22 other than documentation, that is provided by the original equipment manufacturer to an​ 4.23 authorized repair provider pursuant to the terms of an arrangement described in subdivision​ 4.24 2, paragraph (b).​ 4.25 Subd. 6. Exclusions. (a) Nothing in this section applies to (1) a motor vehicle​ 4.26 manufacturer, manufacturer of motor vehicle equipment, or motor vehicle dealer acting in​ 4.27 that capacity, or (2) any product or service of a motor vehicle manufacturer, manufacturer​ 4.28 of motor vehicle equipment, or motor vehicle dealer acting in that capacity.​ 4.29 (b) Nothing in this section applies to manufacturers or distributors of a medical device​ 4.30 as defined in the Federal Food, Drug, and Cosmetic Act, codified at United States Code,​ 4.31 title 21, section 301 et seq., or a digital electronic product or software manufactured for use​ 4.32 in a medical setting including diagnostic, monitoring, or control equipment or any product​ 4.33 or service that they offer.​ 4​Section 1.​ 21-02218 as introduced​02/08/21 REVISOR RSI/EE​ 5.1 Subd. 7. Applicability. This section applies to equipment sold or in use on or after​ 5.2 January 1, 2021.​ 5.3 EFFECTIVE DATE. This section is effective January 1, 2022.​ 5​Section 1.​ 21-02218 as introduced​02/08/21 REVISOR RSI/EE​