An Act relative to digital right to repair

1 of 2 HOUSE DOCKET, NO. 3826 FILED ON: 1/20/2023 HOUSE . . . . . . . . . . . . . . . No. 360 The Commonwealth of Massachusetts _________________ PRESENTED BY: Adrian C. Madaro _________________ To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled: The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: An Act relative to digital right to repair. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: DATE ADDED: Adrian C. Madaro 1st Suffolk 1/20/2023 Samantha Montaño 15th Suffolk 1/25/2023 Sal N. DiDomenico Middlesex and Suffolk 1/30/2023 Angelo L. D'Emilia 8th Plymouth 1/30/2023 David M. Rogers 24th Middlesex 2/3/2023 Carole A. Fiola 6th Bristol 2/13/2023 Lindsay N. Sabadosa 1st Hampshire 2/13/2023 Jack Patrick Lewis 7th Middlesex 2/13/2023 William C. Galvin 6th Norfolk 2/13/2023 Joanne M. Comerford Hampshire, Franklin and Worcester 2/14/2023 Jonathan D. Zlotnik 2nd Worcester 3/6/2023 James B. Eldridge Middlesex and Worcester 3/14/2023 Natalie M. Higgins 4th Worcester 3/15/2023 William J. Driscoll, Jr. 7th Norfolk 3/22/2023 Bradley H. Jones, Jr. 20th Middlesex 3/22/2023 James C. Arena-DeRosa 8th Middlesex 3/31/2023 Simon Cataldo 14th Middlesex 4/3/2023 Patrick M. O'Connor First Plymouth and Norfolk 4/5/2023 2 of 2 Tommy Vitolo 15th Norfolk 4/5/2023 Kenneth I. Gordon 21st Middlesex 4/5/2023 Joan B. Lovely Second Essex 4/14/2023 Daniel M. Donahue 16th Worcester 4/14/2023 Ruth B. Balser 12th Middlesex 4/24/2023 Marjorie C. Decker 25th Middlesex 5/11/2023 Michael D. Brady Second Plymouth and Norfolk 6/13/2023 Paul R. Feeney Bristol and Norfolk 6/26/2023 1 of 6 HOUSE DOCKET, NO. 3826 FILED ON: 1/20/2023 HOUSE . . . . . . . . . . . . . . . No. 360 By Representative Madaro of Boston, a petition (accompanied by bill, House, No. 360) of Adrian C. Madaro and others relative to digital right to repair. Consumer Protection and Professional Licensure. The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ An Act relative to digital right to repair. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 The General Laws are hereby amended by inserting after chapter 93K the following 2 Chapter:- 3 Chapter 93L Portable Wireless Device Repair Act 4 Section 1. As used in this chapter, the following terms shall, unless the context clearly 5 requires otherwise, have the following meanings: 6 "Authorized repair provider” means, with respect to an manufacturer, an individual or 7 business who is unaffiliated with the manufacturer and who has an arrangement with 8 manufacturer under which the manufacturer grants to the individual or business a license to use a 9 trade name, service mark, or other proprietary identifier for the purposes of offering the services 10 of diagnosis, maintenance, or repair of portable wireless devices under the name of the 11 manufacturer, or other arrangement with the manufacturer to offer such services on behalf of 12 manufacturer. A manufacturer who offers the services of diagnosis, maintenance, or repair of 2 of 6 13 portable wireless devices manufactured by it or on its behalf, or sold or otherwise supplied by it, 14 and who does not do so exclusively through one or more arrangements as described in this 15 subsection with an unaffiliated individual or business, shall be considered an authorized repair 16 provider with respect to such equipment. 17 “Portable Wireless Device” means a product which includes a battery, microphone, 18 speaker and display designed to send and receive transmissions through a cellular radiotelephone 19 service. 20 "Documentation", means any manual, diagram, reporting output, service code 21 description, schematic, security codes or passwords, or other information used in effecting the 22 services of diagnosis, maintenance, or repair of portable wireless devices. 23 “Fair and reasonable terms”, for obtaining a part or tool or documentation means costs 24 and terms that are equivalent to the most favorable costs and terms under which manufacturer 25 offers the part, tool, or documentation to an authorized repair provider accounting for any 26 discount, rebate, convenient and timely means of delivery, means of enabling fully restored and 27 updated functionality, rights of use, or other incentive or preference the manufacturer offers to an 28 authorized repair provider, or any additional cost, burden, or impediment the manufacturer 29 imposes on an owner or independent repair provider. For documentation, including any relevant 30 updates, “fair and reasonable terms” also means at no charge, except that, when the 31 documentation is requested in physical printed form, a charge may be included for the reasonable 32 actual costs of preparing and sending the copy. 33 "Independent repair provider" means, with respect to a manufacturer, an individual or 34 business operating in the Commonwealth, who does not have an arrangement as an authorized 3 of 6 35 repair provider with the manufacturer, and who is not affiliated with any individual or business 36 who has such an arrangement with the manufacturer, when that individual or business is engaged 37 in the services of diagnosis, maintenance, or repair of portable wireless devices. A manufacturer 38 or, with respect to that manufacturer, an individual or business who has such an arrangement 39 with that manufacturer, or who is affiliated with an individual or business who has such an 40 arrangement with that manufacturer, shall be considered an independent repair provider when 41 engaging in the services of diagnosis, maintenance, or repair of portable wireless devices that is 42 not manufactured by or on behalf of, or sold or otherwise supplied by, that manufacturer. 43 "Manufacturer", means a business engaged in the business of selling, leasing, or 44 otherwise supplying new portable wireless devices, or parts of equipment, manufactured by or on 45 behalf of itself, to any individual or business. 46 "Owner", an individual or business who lawfully acquires a portable wireless device 47 purchased or used in the Commonwealth. 48 “Part” means any replacement part, either new or used, made available by or to a 49 manufacturer for purposes of effecting the services of maintenance or repair of portable wireless 50 devices manufactured by or on behalf of, sold or otherwise supplied by the manufacturer. 51 “Tool” means any software program, hardware implement, or other apparatus used for 52 diagnosis, maintenance, or repair of portable wireless devices, including software or other 53 mechanisms that provision, program, or pair a part, calibrate functionality, or perform any other 54 function required to bring the product back to fully functional condition. 55 "Trade secret" means anything tangible or intangible or electronically stored or kept 56 which constitutes, represents, evidences, or records intellectual property including secret or 4 of 6 57 confidentially held designs, processes, procedures, formulas, inventions or improvements, or 58 secrets of confidentially held scientific, technical, merchandising, production, financial, business 59 or management information, or anything within the definition in 18 U.S.C. 1839(3). 60 Section 2. Manufacturers of portable wireless devices, or parts for such equipment, 61 manufactured by it or on its behalf, or sold or otherwise supplied by it in the Commonwealth, 62 shall make available to owners of such devices and to independent repair providers, on fair and 63 reasonable terms, documentation, parts, and tools, inclusive of any updates, for purposes of 64 diagnosis, maintenance, or repair of such devices. Nothing in this subsection requires a 65 manufacturer to make available a part that is no longer available to the manufacturer. 66 Section 3. Manufacturers that sell any diagnostic, service, or repair information to any 67 independent repair provider or any other third-party provider in a format that is standardized with 68 other manufacturers, and on terms and conditions more favorable than the manner and the terms 69 and conditions pursuant to which an authorized repair provider obtains the same diagnostic, 70 service, or repair information, shall be prohibited from requiring any authorized repair provider 71 to continue purchasing diagnostic, service, or repair information in a proprietary format, unless 72 such proprietary format includes diagnostic, service, repair, or dealership operations information 73 or functionality that is not available in such standardized format. 74 Section 4. Nothing in this chapter shall be construed to require a manufacturer to divulge 75 a trade secret, except as necessary to provide documentation, parts, and tools on fair and 76 reasonable terms. 77 Section 5. Nothing in this chapter requires manufacturers or authorized repair providers 78 to provide an owner or independent repair provider access to non-diagnostic and non-repair 5 of 6 79 information provided by a manufacturer to an authorized repair provider pursuant to the 80 terms of an authorizing agreement. 81 Section 6. 82 (a) An independent repair provider or owner who believes that a manufacturer 83 has failed to provide documentation, parts, and tools for purposes of diagnosis, 84 maintenance, or repair of portable wireless devices as required by this chapter shall notify the 85 manufacturer in writing and give the manufacturer 30 days from the time the manufacturer 86 receives the complaint to cure the failure. If the manufacturer cures such a complaint within the 87 cure period, damages shall be limited to actual damages in any subsequent litigation. 88 (b) If the manufacturer fails to respond to the notice provided pursuant to subsection (a), 89 or if an independent repair provider or owner is not satisfied with the manufacturer's cure, the 90 independent repair provider or owner may file a complaint in superior court. The complaint shall 91 include the following: 92 (1) written information confirming that the complainant has attempted to acquire and use, 93 through the then available standard support function provided by the manufacturer, relevant 94 documentation, parts, and tools, including communication with customer assistance via the 95 manufacturer's then standard process, if made available by the manufacturer; and 96 (2) evidence of manufacturer notification as required by subsection (a). 97 Section 10. In addition to any other remedies that may be available, a violation of this 98 chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or 99 practice in the conduct of trade or commerce in violation of section 2 of chapter 93A. 6 of 6 100 Section 11. This Act applies with respect to equipment sold or in use on or after the 101 effective date of this Act. 102 Section 12. This Act takes effect January 1, 2024. 103 Section 13. Nothing in this chapter shall apply to a device approved by the United States 104 Food and Drug Administration.