Commerce and trade; right to repair digital electronic equipment; provide

22 LC 51 0006 H. B. 1663 - 1 - House Bill 1663 By: Representative Lim of the 99th A BILL TO BE ENTITLED AN ACT To amend Article 15 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated,1 relating to deceptive or unfair practices, so as to provide for the right to repair digital2 electronic equipment; to provide for related matters; to repeal conflicting laws; and for other3 purposes.4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:5 SECTION 1.6 Article 15 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to7 deceptive or unfair trade practices, is amended by adding a new part to read as follows:8 "Part 89 10-1-439.5.10 This part shall be known and may be cited as the 'Digital Right to Repair Act.'11 10-1-439.6.12 As used in this part, the term:13 22 LC 51 0006 H. B. 1663 - 2 - (1) 'Authorized repair provider' means an individual or business who is unaffiliated with14 an original equipment manufacturer and who has an arrangement with the original15 equipment manufacturer, for a definite or indefinite period, under which the original16 equipment manufacturer grants to the individual or business a license to use a trade name,17 service mark, or other proprietary identifier for the purposes of offering the services of18 diagnosis, maintenance, or repair of digital electronic equipment under the name of the19 original equipment manufacturer, or other arrangement with the original equipment20 manufacturer to offer such services on behalf of the original equipment manufacturer.21 An original equipment manufacturer who offers the services of diagnosis, maintenance,22 or repair of its own digital electronic equipment, and who does not have an arrangement23 described in this paragraph with an unaffiliated individual or business, shall be24 considered an authorized repair provider with respect to such equipment.25 (2) 'Digital electronic equipment' means any product that depends for its functioning, in26 whole or in part, on digital electronics embedded in or attached to the product. Such term27 shall not include a motor vehicle as defined in Code Section 40-1-1 or any equipment or28 parts embedded in or attached to a motor vehicle by the original equipment manufacturer.29 (3) 'Documentation' means any manual, diagram, reporting output, service code30 description, schematic, or other guidance or information used in effecting the services of31 diagnosis, maintenance, or repair of digital electronic equipment.32 (4) 'Embedded software' means any programmable instructions provided on firmware33 delivered with digital electronic equipment, or with a part for such equipment, for34 purposes of digital electronic equipment operation, including all relevant patches and35 fixes made by the manufacturer of such equipment or part for these purposes.36 (5) 'Fair and reasonable terms' means:37 (A) For obtaining a part or tool or documentation at costs and terms that are equivalent38 to the most favorable costs and terms under which an original equipment manufacturer39 offers the part, tool, or documentation to an authorized repair provider (i) accounting40 22 LC 51 0006 H. B. 1663 - 3 - for any discount, rebate, convenient means of delivery, means of enabling fully restored41 and updated functionality, rights of use, or other incentive or preference the original42 equipment manufacturer offers to an authorized repair provider, or any additional cost,43 burden, or impediment the original equipment manufacturer imposes on an independent44 repair provider; (ii) not conditioned on or imposing a substantial obligation or45 restriction that is not reasonably necessary for enabling the owner or independent repair46 provider to engage in the diagnosis, maintenance, or repair of digital electronic47 equipment made by or on behalf of the original equipment manufacturer; and (iii) not48 conditioned on an arrangement described in paragraph (1) of this Code section;49 (B) For documentation, including any relevant updates, such term also means at no50 charge, except that, when the documentation is requested in physical printed form, a51 charge may be included for the reasonable actual costs of preparing and sending the52 copy; and53 (C) For software tools, such term also means at no charge and without requiring54 authorization or internet access, or imposing impediments to access or use, in the course55 of effecting the diagnosis, maintenance, or repair and enabling full functionality of56 digital electronic equipment, in a manner that impairs the efficient and cost-effective57 performance of any of those activities.58 (6) 'Firmware' means a software program or set of instructions programmed on digital59 electronic equipment, or on a part for such equipment, to allow the digital electronic60 equipment or part to communicate within itself or with other computer hardware.61 (7) 'Independent repair provider' means an individual or business, who does not have an62 arrangement described in paragraph (1) of this Code section with an original equipment63 manufacturer, and who is not affiliated with any individual or business who has such an64 arrangement, and who is engaged in the services of diagnosis, maintenance, or repair of65 digital electronic equipment, except that an original equipment manufacturer or, with66 respect to that original equipment manufacturer, an individual or business who has such67 22 LC 51 0006 H. B. 1663 - 4 - an arrangement with that original equipment manufacturer, or who is affiliated with an68 individual or business who has such an arrangement with that original equipment69 manufacturer, shall be considered an independent repair provider for purposes of those70 instances in which it engages in the services of diagnosis, maintenance, or repair of71 digital electronic equipment that is not manufactured by or sold under the name of that72 original equipment manufacturer.73 (8) 'Original equipment manufacturer' means a business engaged in selling, leasing, or74 otherwise supplying new digital electronic equipment manufactured by or on behalf of75 itself, to any individual or business.76 (9) 'Owner' means an individual or business who owns or leases digital electronic77 equipment.78 (10) 'Part' means any replacement part, either new or used, made available by an original79 equipment manufacturer for purposes of effecting the services of maintenance or repair80 of digital electronic equipment manufactured by or on behalf of, sold, or otherwise81 supplied by the original equipment manufacturer.82 (11) 'Tool' means any software program, hardware implement, or other apparatus used83 for diagnosis, maintenance, or repair of digital electronic equipment, including software84 or other mechanisms that provision, program, or pair a new part, calibrate functionality,85 or perform any other function required to bring the product back to fully functional86 condition.87 10-1-439.7.88 (a) An original equipment manufacturer shall make available to any independent repair89 provider, or to the owner of digital electronic equipment, on fair and reasonable terms, any90 available documentation, part, or tool, inclusive of any updates to information or embedded91 software, for purposes of diagnosis, maintenance, or repair of digital electronic equipment92 manufactured by or on behalf of, or sold or otherwise supplied by, the original equipment93 22 LC 51 0006 H. B. 1663 - 5 - manufacturer. Nothing in this subsection shall require an original equipment manufacturer94 to make available any documentation, part, or tool that is no longer available to the original95 equipment manufacturer.96 (b) For digital electronic equipment that contains an electronic security lock or other97 security-related function, an original equipment manufacturer shall make available to the98 owner and to independent repair providers, on fair and reasonable terms, any special99 documentation, tools, and parts needed to disable the lock or function, and to reset it when100 disabled in the course of diagnosis, maintena nce, or repair of such equipment. Such101 documentation, tools, and parts may be made available by means of an appropriate secure102 system.103 (c) When an original equipment manufacturer has made an express warranty with respect104 to digital electronic equipment and the w holesale price of such equipment is $100.00 or105 more, the manufacturer shall provide such parts, tools, and documentation as to enable the106 repair of such equipment during the warranty period, at an equitable price and convenience107 of delivery and of enabling functionality, in light of:108 (1) The actual cost to the original equipment manufacturer to prepare and distribute the109 part, tool, or documentation, exclusive of any research and development costs incurred;110 (2) The ability of owners and independent repair providers to afford the part, tool, or111 documentation; and112 (3) The means by which the part, tool, or documentation is distributed.113 10-1-439.8.114 Whenever the Attorney General has reason to believe that any person is engaging, has115 engaged, or is about to engage in any act or practice declared unlawful by this part, the116 Attorney General shall, upon written request or by his or her own initiative, investigate and,117 upon finding a probable violation of this part, bring an action in the name of the state118 against such person to:119 22 LC 51 0006 H. B. 1663 - 6 - (1) Obtain a declaratory judgment that the act or practice violates the provisions of this120 part;121 (2) Enjoin any act or practice that violates the provisions of this part by issuance of a122 temporary restraining order or preliminary or permanent injunction, without bond, upon123 the giving of appropriate notice; and124 (3) Recover civil penalties of up to $10,000.00 per violation of this part or any125 injunction, judgment, or consent order issued or entered into under the provisions of this126 chapter and reasonable expenses, investigative costs, and attorney's fees.127 10-1-439.9.128 (a) Nothing in this part shall be construed to require an original equipment manufacturer129 to divulge a trade secret, as that term is defined in Code Section 10-1-761, to an owner or130 an independent service provider except as necessary to provide documentation, parts, and131 tools on fair and reasonable terms.132 (b) Nothing in this part shall be construed to alter the terms of any arrangement in force133 between an authorized repair provider and an original equipment manufacturer, including,134 but not limited to, the performance or provision of warranty or recall repair work by an135 authorized repair provider on behalf of an original equipment manufacturer pursuant to136 such arrangement, except that any provision in such terms that purports to waive, avoid,137 restrict, or limit the original equipment manufacturer's obligations to comply with this part138 shall be void and unenforceable."139 SECTION 2.140 All laws and parts of laws in conflict with this Act are repealed.141