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

SECOND REGULAR SESSION HOUSE BILL NO. 2257 103RD GENERAL ASSEMBL Y INTRODUCED BY REPRESENT A TIVE HOVIS. 4966H.01I JOSEPH ENGLER, Chief Clerk AN ACT T o 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 this section and section 407.653, the following terms mean: 2 (1) "Authorized re pair pr ovider", an individual or business that has an oral or 3 written arrangement for a definite or indefinite period in which a manufactur er or 4 distributor transfers to a separate business organization or individual licensee the right 5 to use a trade name, service mark, or other pro prietary identifier for the purposes of 6 offering diagnosis, maintenance, or r epair services under the name of the manufactur er . 7 A manufactur er that offers diagnosis, maintenance, or repa ir services for its pr oduct 8 and that does not have an arrangement with an individual or business described in this 9 subdivision shall be consider ed an authorized rep air provi der; 10 (2) "Construction machinery", any mobile heavy equipment or heavy 1 1 machinery designed for construction or earthwork tasks; 12 (3) "Documentation", manuals, diagrams, r eporting output, schematic 1 3 diagrams, service code descriptions, or other information pr ovided to the authorized 14 r epair pr ovider for the purposes of diagnosis, maintenance, repa ir , or ref urbishment; 15 (4) "Embedded software", pr ogrammable instructions pr ovided on firmwar e 16 deliver ed with certain pr oducts or parts for the purposes of prod uct operation, 17 including all relev ant safety , security , and defect patches and fixes made by the EXPLANA TION — 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. 18 manufactur er for this purpose. "Embedded software" shall include all softwar e that 19 meets this definition regard less of name including, but not limited to, assembly code, 20 basic internal operating system, internal operating system, machine code, micr ocode, or 21 r oot code; 22 (5) "Fair and reas onable terms", an equitable price in light of relev ant factors 23 including, but not limited to: 24 (a) The net cost to an authorized r epair pr ovider for similar parts, 2 5 documentation, or tools obtained fr om manufactur ers less any discounts, reb ates, or 26 other incentive pr ograms; 27 (b) The cost to the manufactur er for pr eparing and distributing the parts or 28 pr oduct, excluding any r esear ch and development costs incurr ed in designing and 29 implementing, upgrading, or altering the prod uct, but including amortized capital costs 30 for the pr eparation and distribution of the parts; and 31 (c) The price charged by other manufactur ers for similar parts or pr oducts. 32 33 For documentation including, but not limited to, softwar e updates, "fair and reas onable 34 terms" shall mean at no charge, except if documentation is requ ested in printed form, 35 the manufactur er may charge for re asonable costs of pr eparing and sending the 36 documentation. For softwar e tools, "fair and re asonable terms" shall mean at no 37 charge and without req uiring authorization, without req uiring internet access, and 38 without impeding access or use of the pr oduct; 39 (6) "Farm machinery", any mobile equipment or machinery including, but not 40 limited to, tractors, trailers, combines, tillage implements, balers, unmanned air craft 41 systems, off-r oad vehicles, and other equipment, including attachments and r epair parts 42 ther eof, used in the planting, cultivating, irrigating, harvesting, or ranching of 43 agricultural pr oducts, excluding self-pro pelled machines designed primarily for the 44 transportation of persons or pr operty on a stre et or highway; 45 (7) "Forestr y machinery", any mobile equipment or machinery including, but 46 not limited to, skidders, delimbers, log loaders, and other equipment, including 47 attachments and rep air parts ther eof, used in a for est for logging and other for estry 48 purposes; 49 (8) "Independent repai r pro vider", an individual or business operating in the 50 state that is not affiliated with a manufactur er or a manufactur er's authorized dealer of 51 a pro duct but is engaged in the diagnosis, service, maintenance, or r epair of pro ducts. A 52 manufactur er's authorized dealer shall be consider ed an independent repair pr ovider if 53 the dealer engages in the diagnosis, service, maintenance, or r epair of a pr oduct that is 54 not affiliated with the manufactur er; HB 2257 2 55 (9) "Manufactur er", an individual or business that, in the ordinary course of its 56 business, is engaged in selling or leasing new pr oducts to consumers or other end users 57 and is engaged in the diagnosis, service, maintenance, or repa ir of those prod ucts; 58 (10) "Owner", an individual or business that lawfully acquires a pr oduct 59 pur chased or used in the state; 60 (1 1) "Pr oduct", any farm machinery , construction machinery , or for estry 61 machinery , rega rdless of the date purch ased, whose functioning depends, in whole or in 62 part, on embedded or attached digital electr onics; 63 (12) "Remote diagnostics", a rem ote data transfer function between certain 64 pr oducts and a pr ovider of repai r services, including for purposes of rem ote diagnostics, 65 settings control s, or location identification; 66 (13) "Service parts", repla cement parts, either new or used, made available by 67 the manufactur er to an authorized rep air provi der for the purposes of rep air; 68 (14) "T ools", any software pr ogram, hardware implement, or other apparatus 69 used for diagnosis, maintenance, or repa ir of a prod uct including, but not limited to, 70 softwar e or other mechanisms that pr ovision, pro gram, or pair a new part, calibrate 71 functionality , or perform a function req uired to bring the pro duct back to fully 72 functional condition; 73 (15) "T rade secr et", anything tangible, intangible, or electr onically store d or 74 kept that constitutes, r epresent s, evidences, or record s intellectual pro perty including, 75 but not limited to: 76 (a) Secr et or confidentially held designs, process es, proced ures, formulas, 77 inventions, or impr ovements; 78 (b) Secr et or confidentially held scientific, technical, mer chandising, pr oduction, 79 financial, business, or management information; or 80 (c) Any trade secr et as that term is defined under paragraph (3) of 18 U.S.C. 81 Section 1839. 407.653. 1. Owners of pr oducts pur chased or used in this state and independent 2 r epair pr oviders shall have the right to: 3 (1) Access the same diagnostic and repai r information of pro ducts manufactur ed 4 by the manufactur er as the manufactur er makes available to authorized rep air 5 pr oviders. Such information shall be pr ovided in the same manner and time as 6 pr ovided to authorized repai r prov iders. Such information shall include, but not be 7 limited to, repa ir technical updates, diagnostic softwar e, service access passwords, 8 updates and corr ections to firmwar e, and rel ated documentation; 9 (2) Purch ase service parts, documentation, and tools available upon fair and 10 r easonable terms. Such service parts shall be made available in the same manner and HB 2257 3 11 time as given to authorized r epair pr oviders. Such service parts shall include updates to 12 firmwar e of parts; and 13 (3) Upon the pur chase or acquisition of a pr oduct, receive a disclosur e of any 14 changes or modifications made to the pro duct by pr evious owners. 15 16 Nothing in this section shall r equir e the manufactur er to sell service parts if the service 17 parts are no longer available to the manufactur er or the authorized r epair channel of 18 the manufactur er . 19 2. An authorized repa ir pro vider shall have the right to pur chase diagnostic, 20 service, or rep air information of a pr oduct in a format standardized with other 21 manufactur ers instead of a propriet ary format from a manufactur er if the 2 2 manufactur er sells diagnostic, service, or r epair information to independent rep air 23 pr oviders or third-party pr oviders in such a standardized format or if the manufactur er 24 offers terms and conditions mor e favorable to independent repa ir pr oviders or third- 25 party provi ders than the manner and the terms and conditions that ar e available to an 26 authorized r epair pr ovider . However , this subsection shall not apply if the pro prietary 27 format includes diagnostic, service, repa ir , or dealership operations information or 28 functionality not available in a standardized format. 29 3. Owners and independent repai r pr oviders shall have the right to pur chase 30 fr om manufactur ers of prod ucts sold or used in this state all diagnostic repai r tools, 31 incorporating the same diagnostic rep air and rem ote diagnostic capabilities that the 32 manufactur er makes available to its own rep air or engineering staff or any authorized 33 r epair pr oviders, on fair and rea sonable terms. 34 4. For equipment that contains an electr onic security lock or other security- 35 r elated function, the manufactur er shall make available to owners and independent 36 r epair pro viders, on fair and reas onable terms, any special documentation, tools, and 37 parts needed to disable the lock or function and to res et it when disabled in the course of 38 diagnosis, maintenance, or repai r of the equipment. The documentation, tools, and 39 parts may be made available thr ough an appr opriate secure system. 40 5. Manufactur ers that pr ovide rep air information to aftermarket tools, 41 diagnostics, or third-party service information publications and systems have fully 42 satisfied their obligations under this section and ther eafter ar e not res ponsible for the 43 content and functionality of aftermarket diagnostic tools or service information systems. 44 6. If a manufactur er has made an expr ess warranty with res pect to a pr oduct 45 and the wholesale price of the equipment is one hundred dollars or mor e, the 46 manufactur er shall pr ovide the parts, tools, and documentation needed to r epair the HB 2257 4 47 pr oduct during the warranty period at an equitable price, with convenient delivery , and 48 with an enabled functionality , considering: 49 (1) The actual cost to the manufactur er to pre pare and distribute the part, tool, 50 or documentation, exclusive of any res earch and development costs incurr ed; 51 (2) The ability of owners or independent rep air pr oviders to afford the part, tool, 52 or documentation; and 53 (3) The means by which the part, tool, or documentation is distributed. 54 7. Manufactur ers of pr oducts sold or used in the state for the purposes of 55 pr oviding security-r elated functions shall not exclude diagnostic, service, or rep air 56 information necessary to r eset a security-r elated electr onic function fr om information 57 pr ovided to owners and independent re pair pr oviders. If necessary for security 58 purposes, manufactur ers shall pro vide information necessary to r eset and unlock system 59 or security-r elated electr onic modules to owners and independent rep air pro viders 60 thr ough an appr opriate secure data rel ease system. 61 8. Nothing in this section shall r equir e the manufactur er to divulge a trade secr et 62 to an owner or to an independent repa ir pr ovider , except as necessary to prov ide 63 documentation, parts, and tools on fair and reas onable terms. 64 9. Notwithstanding any law or rule to the contrary , this section shall not be rea d, 65 interpr eted, or construed to abrog ate, interfer e with, contradict, or alter the terms of an 66 agr eement executed between an authorized rep air provi der and a manufactur er 67 including, but not limited to, performing warranty or recal l rep air work by an 68 authorized repai r pro vider on behalf of a manufactur er pursuant to the authorized 69 r epair agreement. Except in the case of a dispute arising between a manufactur er and 70 its authorized repa ir prov ider rel ated to either party's compliance with an existing 71 r epair agr eement, an authorized repai r pr ovider shall have all the rights and rem edies 72 pr ovided in this section. 73 10. This section shall not req uire manufactur ers or authorized r epair pro viders 74 to pro vide an owner or independent repa ir pr ovider access to nondiagnostic and 75 nonr epair information provi ded by a manufactur er to an authorized rep air provi der 76 under the agr eement between the manufactur er and the authorized repa ir pr ovider . 77 1 1. (1) An independent re pair pr ovider or owner who believes that a 78 manufactur er has failed to pr ovide information including, but not limited to, 79 documentation, updates to firmwar e, safety and security correct ions, diagnostics, 80 documentation, or a tool req uired by this section shall notify the manufactur er in 81 writing and give the manufactur er thirty days fr om the date the manufactur er r eceives 82 the complaint to cur e the failur e. If the manufactur er cur es the complaint within thirty 83 days, damages are limited to actual damages in any subsequent litigation. HB 2257 5 84 (2) If the manufactur er fails to r espond in a timely manner to the notice 85 described under subdivision (1) of this subsection or if an independent r epair provi der 86 or an owner is not satisfied with the manufactur er's cure, the independent rep air 87 pr ovider or the owner may file a complaint in district court. The complaint shall 88 include: 89 (a) Written information confirming that the complainant attempted to acquire 90 and use, thr ough the then-available standard support function prov ided by the 91 manufactur er , all re levant diagnostics, tools, service parts, documentation, and updates 92 to embedded softwar e, including communication with customer assistance via the 93 manufactur er's then-standard process , if made available by the manufactur er; and 94 (b) Evidence of manufactur er notification as requ ired in subdivision (1) of this 95 subsection. 96 12. No manufactur er shall be requ ired to prov ide any information or service 97 parts under subsection 1 of this section if the pr oduct for which the information or 98 service parts ar e sought is under a valid warranty for rep air or rep lacement of the 99 pr oduct. 100 13. The attorney general shall enforce this section. Each violation of this section 101 shall be punishable by a ten-thousand-dollar fine, which shall be distributed to schools 102 under Article IX, Section 7 of the Constitution of Missouri. ✔ HB 2257 6