An Act relative to Digital Right to Repair Act

1 of 2 SENATE DOCKET, NO. 199 FILED ON: 1/25/2021 SENATE . . . . . . . . . . . . . . No. 166 The Commonwealth of Massachusetts _________________ PRESENTED BY: Michael D. Brady _________________ 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 Act. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: Michael D. Brady Second Plymouth and Bristol Paul R. Feeney Bristol and Norfolk 2/2/2021 Joanne M. Comerford Hampshire, Franklin and Worcester 2/2/2021 Steven Ultrino 33rd Middlesex 2/2/2021 Mike Connolly 26th Middlesex 2/2/2021 Jack Patrick Lewis 7th Middlesex 2/2/2021 Angelo J. Puppolo, Jr. 12th Hampden 2/4/2021 Carmine Lawrence Gentile 13th Middlesex 2/4/2021 Thomas M. Stanley 9th Middlesex 2/5/2021 Adam J. Scanlon 14th Bristol 2/8/2021 Kay Khan 11th Middlesex 2/9/2021 Bradley H. Jones, Jr. 20th Middlesex 2/18/2021 John H. Rogers 12th Norfolk 2/26/2021 Angelo L. D'Emilia 8th Plymouth 2/26/2021 Walter F. Timilty Norfolk, Bristol and Plymouth 3/5/2021 Patrick M. O'Connor Plymouth and Norfolk 3/10/2021 Sal N. DiDomenico Middlesex and Suffolk 3/31/2021 Christopher Hendricks 11th Bristol 4/5/2021 2 of 2 Steven G. Xiarhos 5th Barnstable 4/6/2021 Jason M. Lewis Fifth Middlesex 4/7/2021 Adam G. Hinds Berkshire, Hampshire, Franklin and Hampden 4/26/2021 Julian Cyr Cape and Islands 5/10/2021 Joan B. Lovely Second Essex 9/17/2021 James B. Eldridge Middlesex and Worcester 10/28/2021 Lydia Edwards First Suffolk and Middlesex 1/30/2022 1 of 6 SENATE DOCKET, NO. 199 FILED ON: 1/25/2021 SENATE . . . . . . . . . . . . . . No. 166 By Mr. Brady, a petition (accompanied by bill, Senate, No. 166) of Michael D. Brady, Paul R. Feeney, Joanne M. Comerford, Steven Ultrino and other members of the General Court for legislation relative to digital right to repair. Consumer Protection and Professional Licensure. [SIMILAR MATTER FILED IN PREVIOUS SESSION SEE SENATE, NO. 107 OF 2019-2020.] The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Second General Court (2021-2022) _______________ An Act relative to Digital Right to Repair Act. 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 4 DIGITAL ELECTRONIC PRODUCT REPAIR 5 Section 1. As used in this chapter, the following terms shall, unless the context clearly 6 requires otherwise, have the following meanings:- 7 "Authorized repair provider", an oral or written arrangement for a definite or indefinite 8 period in which a manufacturer or distributor transfers to a separate business organization or 2 of 6 9 individual license to use a trade name, service mark, or relative characteristic for the purposes of 10 offering repair services under the name of the manufacturer. 11 "Digital electronic product", a part or machine containing a microprocessor originally 12 manufactured for distribution and sale in the United States. 13 "Documentation", manuals, schematic diagrams, reporting output, or service code 14 descriptions provided to the authorized repair provider for the purposes of effecting repair. 15 "Embedded software", programmable instructions provided on firmware delivered with 16 the digital electronic product for the purposes of product operation, including all relevant patches 17 and fixes made by the manufacturer for this purpose, including, but not limited to, synonyms 18 "basic internal operating system," "internal operating system," "machine code," "assembly code," 19 "root code" and "microcode." 20 “Fair and reasonable terms”, in determining whether a price is on fair and reasonable 21 terms consideration may be given to relevant factors, including, but not limited to: 22 (1) the net cost to the authorized repair provider for similar parts obtained from 23 manufacturers, less any discounts, rebates, or other incentive programs; 24 (2) the cost to the manufacturer for preparing and distributing the parts or product 25 excluding any research and development costs incurred in designing and implementing, 26 upgrading or altering the product, but including amortized capital costs for the preparation and 27 distribution of the parts; and 28 (3) the price charged by other manufacturers for similar parts or products. 3 of 6 29 "Independent repair provider", a person or business operating in the commonwealth that 30 is not affiliated with a manufacturer or a manufacturer's authorized dealer of a digital electronic 31 product, which is engaged in the diagnosis, service, maintenance, or repair of a digital electronic 32 product. A manufacturer's authorized dealer shall be considered an independent repair provider 33 for the purposes of those instances when the dealer engages in the diagnosis, service, 34 maintenance, or repair of a digital electronic product that is not affiliated with the manufacturer. 35 "Manufacturer", a person or business who, in the ordinary course of its business, is 36 engaged in the business of selling or leasing new digital electronic products to consumers or 37 other end users, and is engaged in the diagnosis, service, maintenance, or repair of that product. 38 "Motor vehicle", means any vehicle that is designed for transporting persons or property 39 on a street or highway and that is certified by the manufacturer under all applicable federal safety 40 and emissions standards and requirements for distribution and sale in the United States, but 41 excluding (i) a motorcycle; or (ii) a recreational vehicle or an auto home equipped for habitation. 42 "Owner", a person or business who lawfully acquires a digital electronic product purchased or 43 used in the commonwealth. 44 "Remote diagnostics", a remote data transfer function between a digital electronic 45 product and a provider of repair services including for purposes of remote diagnostics, settings 46 controls, or location identification. 47 "Service parts", replacement parts, either new or used, made available by the 48 manufacturer to the authorized repair provider for the purposes of effecting repair. 49 "Trade secret", anything tangible or intangible or electronically stored or kept which 50 constitutes, represents, evidences, or records intellectual property including secret or 4 of 6 51 confidentially held designs, processes, procedures, formulas, inventions or improvements, or 52 secrets of confidentially held scientific, technical, merchandising, production, financial, business 53 or management information, or anything within the definition in 18 U.S.C. 1839(3). 54 Section 2. Manufacturers of digital electronic products sold on or after December 31, 55 2012 in the commonwealth shall: 56 (1) make available to independent repair facilities or owners of products manufactured by 57 the manufacturer the same diagnostic and repair information, including repair technical updates, 58 diagnostic software, service access passwords, updates and corrections to firmware, and related 59 documentation, free of charge and in the same manner the manufacturer makes available to its 60 authorized repair providers; and 61 (2) make available for purchase by the product owner, or the authorized agent of the 62 owner, such service parts, inclusive of any updates to the firmware of the parts, for purchase 63 upon fair and reasonable terms. 64 Section 3. Manufacturers that sell any diagnostic, service, or repair information to any 65 independent repair provider or any other third-party provider in a format that is standardized with 66 other manufacturers, and on terms and conditions more favorable than the manner and the terms 67 and conditions pursuant to which an authorized repair provider obtains the same diagnostic, 68 service, or repair information, shall be prohibited from requiring any authorized repair provider 69 to continue purchasing diagnostic, service, or repair information in a proprietary format, unless 70 such proprietary format includes diagnostic, service, repair, or dealership operations information 71 or functionality that is not available in such standardized format. 5 of 6 72 Section 4. Manufacturers of digital electronic products sold or used in the commonwealth 73 shall make available for purchase by owners and independent repair facilities all diagnostic 74 repair tools, incorporating the same diagnostic repair and remote diagnostic capabilities that such 75 manufacturer makes available to its own repair or engineering staff or any authorized repair 76 providers, upon fair and reasonable terms. 77 Section 5. Manufacturers that provide repair information to aftermarket tool, diagnostics, 78 or third-party service information publications and systems shall have fully satisfied its 79 obligations under this chapter and thereafter shall not be responsible for the content and 80 functionality of aftermarket diagnostic tools or service information systems. 81 Section 6. Manufacturers of digital electronic products sold or used in the commonwealth 82 for the purposes of providing security-related functions may not exclude diagnostic, service, and 83 repair information necessary to reset a security-related electronic function from information 84 provided to owners and independent repair facilities. 85 Section 7. Nothing in this chapter shall be construed to require a manufacturer to divulge 86 a trade secret. 87 Section 8. Nothing in this chapter requires manufacturers or authorized repair providers 88 to provide an owner or independent repair provider access to non-diagnostic and non-repair 89 information provided by a manufacturer to an authorized repair provider pursuant to the terms of 90 an authorizing agreement. 91 Section 9. (a) An independent repair provider or owner who believes that a manufacturer 92 has failed to provide information, including documentation, updates to firmware, safety and 93 security corrections, diagnostics, documentation, or a tool required by this chapter shall notify 6 of 6 94 the manufacturer in writing and give the manufacturer 30 days from the time the manufacturer 95 receives the complaint to cure the failure. If the manufacturer cures such a complaint within the 96 cure period, damages shall be limited to actual damages in any subsequent litigation. 97 (b) If the manufacturer fails to respond to the notice provided pursuant to subsection (a), 98 or if an independent repair facility or owner is not satisfied with the manufacturer's cure, the 99 independent repair facility or owner may file a complaint in district court. The complaint shall 100 include the following: 101 (1) written information confirming that the complainant has attempted to acquire and use, 102 through the then available standard support function provided by the manufacturer all relevant 103 diagnostics, tools, service parts, documentation, and updates to embedded software, including 104 communication with customer assistance via the manufacturer's then standard process, if made 105 available by the manufacturer; and 106 (2) evidence of manufacturer notification as required by subsection (a). 107 Section 10. In addition to any other remedies that may be available, a violation of this 108 chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or 109 practice in the conduct of trade or commerce in violation of section 2 of chapter 93A. 110 Section 11. Nothing in this chapter shall apply to a motor vehicle. 111 Section 12. Nothing in this chapter shall apply to a device approved by the United States 112 Food and Drug Administration.