An act relating to creating a right to repair personal electronic devices

BILL AS INTRODUCED S.262 2022 Page 1 of 8 VT LEG #358746 v.2 S.262 1 Introduced by Senators Pearson, Clarkson, Hardy, Hooker and Sirotkin 2 Referred to Committee on 3 Date: 4 Subject: Commerce and trade; consumer protection 5 Statement of purpose of bill as introduced: This bill proposes to promote 6 choice and competition by requiring manufacturers of personal electronic 7 devices to make available to consumers and independent repair providers, on 8 fair and reasonable terms, the documentation, parts, and tools used to diagnose, 9 maintain, and repair those devices. 10 An act relating to creating a right to repair personal electronic devices 11 It is hereby enacted by the General Assembly of the State of Vermont: 12 Sec. 1. SHORT TITLE 13 This act may be cited as the Personal Electronic Device Right-to-Repair 14 Act. 15 Sec. 2. 9 V.S.A. chapter 106 is added to read: 16 CHAPTER 106. PERSONAL ELECTRONIC DEVICES; 17 RIGHT TO REPAIR 18 § 4051. DEFINITIONS 19 As used in this chapter: 20 BILL AS INTRODUCED S.262 2022 Page 2 of 8 VT LEG #358746 v.2 (1)(A) “Authorized repair provider” means an individual or business 1 who is unaffiliated with an original equipment manufacturer and who has an 2 arrangement with the original equipment manufacturer, for a definite or 3 indefinite period, under which the original equipment manufacturer grants to 4 the individual or business a license to use a trade name, service mark, or other 5 proprietary identifier for the purposes of offering the services of diagnosis, 6 maintenance, or repair of a personal electronic device under the name of the 7 original equipment manufacturer, or other arrangement with the original 8 equipment manufacturer to offer such services on behalf of the original 9 equipment manufacturer. 10 (B) An original equipment manufacturer who offers the services of 11 diagnosis, maintenance, or repair of its own personal electronic devices, and 12 who does not have an arrangement described in this subdivision (1) with an 13 unaffiliated individual or business, shall be considered an authorized repair 14 provider with respect to such devices. 15 (2) “Documentation” means any manual, diagram, reporting output, 16 service code description, schematic, security codes or passwords, or other 17 guidance or information used in effecting the services of diagnosis, 18 maintenance, or repair of personal electronic devices. 19 (3) “Embedded software” means any programmable instructions 20 provided on firmware delivered with a personal electronic device, or with a 21 BILL AS INTRODUCED S.262 2022 Page 3 of 8 VT LEG #358746 v.2 part for such device, for purposes of operation, including all relevant patches 1 and fixes made by the manufacturer of such device or part for these purposes. 2 (4) “Fair and reasonable terms” means the following in the context 3 specified: 4 (A) For obtaining a part or tool or documentation, “fair and 5 reasonable terms” means at costs and terms that are equivalent to the most 6 favorable costs and terms under which an original equipment manufacturer 7 offers the part, tool, or documentation to an authorized repair provider: 8 (i) accounting for any discount, rebate, convenient and timely 9 means of delivery, means of enabling fully restored and updated functionality, 10 rights of use, or other incentive or preference the original equipment 11 manufacturer offers to an authorized repair provider, or any additional cost, 12 burden, or impediment the original equipment manufacturer imposes on an 13 independent repair provider; 14 (ii) not conditioned on or imposing a substantial obligation or 15 restriction that is not reasonably necessary for enabling the owner or 16 independent repair provider to engage in the diagnosis, maintenance, or repair 17 of a personal electronic device made by or on behalf of the original equipment 18 manufacturer; and 19 (iii) not conditioned on an arrangement described in subdivision 20 (1) of this section. 21 BILL AS INTRODUCED S.262 2022 Page 4 of 8 VT LEG #358746 v.2 (B) For documentation, including any relevant updates, “fair and 1 reasonable terms” also means at no charge, except that when the 2 documentation is requested in physical printed form a charge may be included 3 for the reasonable actual costs of preparing and sending the copy. 4 (C) For software tools, “fair and reasonable terms” also means at no 5 charge and without requiring authorization or Internet access, or imposing 6 impediments to access or use, in the course of effecting the diagnosis, 7 maintenance, or repair and enabling full functionality of a personal electronic 8 device, in a manner that impairs the efficient and cost-effective performance of 9 any of those activities. 10 (5) “Firmware” means a software program or set of instructions 11 programmed on a personal electronic device or on a part for such device to 12 allow the device or part to communicate within itself or with other computer 13 hardware. 14 (6) “Independent repair provider” means an individual or business 15 operating in this State who does not have an arrangement described in 16 subdivision (1) of this section with an original equipment manufacturer; who is 17 not affiliated with any individual or business who has such an arrangement; 18 and who is engaged in the services of diagnosis, maintenance, or repair of 19 personal electronic devices, except that an original equipment manufacturer or, 20 with respect to that original equipment manufacturer, an individual or business 21 BILL AS INTRODUCED S.262 2022 Page 5 of 8 VT LEG #358746 v.2 who has such an arrangement with that original equipment manufacturer or 1 who is affiliated with an individual or business who has such an arrangement 2 with that original equipment manufacturer shall be considered an independent 3 repair provider for purposes of those instances in which it engages in the 4 services of diagnosis, maintenance, or repair of personal electronic devices that 5 are not manufactured by or sold under the name of that original equipment 6 manufacturer. 7 (7) “Original equipment manufacturer” means a business engaged in the 8 business of selling, leasing, or otherwise supplying new personal electronic 9 devices or parts of devices manufactured by or on behalf of itself to any 10 individual or business. 11 (8) “Owner” means an individual or business who owns or leases a 12 personal electronic device purchased or used in this State. 13 (9) “Part” means any replacement part, either new or used, made 14 available by an original equipment manufacturer for purposes of effecting the 15 services of maintenance or repair of a personal electronic device manufactured 16 by or on behalf of, sold or otherwise supplied by, the original equipment 17 manufacturer. 18 (10) “Personal electronic device” or “device” means a portable 19 electronic device that has the capability to store, record, or transmit text, 20 photographic, audio, or video data. 21 BILL AS INTRODUCED S.262 2022 Page 6 of 8 VT LEG #358746 v.2 (11) “Tools” means any software program, hardware implement, or 1 other apparatus used for the diagnosis, maintenance, or repair of a personal 2 electronic device, including software or other mechanisms that provision, 3 program, or pair a new part; calibrate functionality; or perform any other 4 function required to bring the product back to a fully functional condition. 5 (12) “Trade secret” has the same meaning as in section 4601 of this title. 6 § 4052. REQUIREMENTS. 7 (a)(1) For a personal electronic device, and parts for such device, sold or 8 used in this State, an original equipment manufacturer shall make available, for 9 purposes of diagnosis, maintenance, or repair of such device, to any 10 independent repair provider, or to the owner of the personal electronic device 11 by or on behalf of, or sold or otherwise supplied by, the original equipment 12 manufacturer, on fair and reasonable terms, documentation, parts, and tools, 13 inclusive of any updates to information or embedded software. 14 (2) This subsection does not require an original equipment manufacturer 15 to make available a part if the part is no longer available to the original 16 equipment manufacturer. 17 (b) For a device that contains an electronic security lock or other security-18 related function, the original equipment manufacturer shall make available to 19 the owner and to independent repair providers, on fair and reasonable terms, 20 any special documentation, tools, and parts needed to disable the lock or 21 BILL AS INTRODUCED S.262 2022 Page 7 of 8 VT LEG #358746 v.2 function and to reset it when disabled in the course of diagnosis, maintenance, 1 or repair of the device. Such documentation, tools, and parts may be made 2 available by means of an appropriate secure system. 3 (c) When the original equipment manufacturer has made an express 4 warranty with respect to a personal electronic device and the wholesale price 5 of the device is $100.00 or more, the manufacturer shall provide such parts, 6 tools, and documentation as to enable the repair of the device during the 7 warranty period at an equitable price and convenience of delivery and of 8 enabling functionality in light of: 9 (1) the actual cost to the original equipment manufacturer to prepare and 10 distribute the part, tool, or documentation, exclusive of any research and 11 development costs incurred; 12 (2) the ability of owners and independent repair providers to afford the 13 part, tool, or documentation; and 14 (3) the means by which the part, tool, or documentation is distributed. 15 § 4053. ENFORCEMENT 16 (a) A person who violates a provision of this chapter commits an unfair and 17 deceptive act in trade and commerce in violation of section 2453 of this title. 18 (b) The Attorney General has the same authority to make rules, conduct 19 civil investigations, enter into assurances of discontinuance, and bring civil 20 actions as provided in chapter 63, subchapter 1 of this title. 21 BILL AS INTRODUCED S.262 2022 Page 8 of 8 VT LEG #358746 v.2 § 4054. LIMITATION 1 (a) Nothing in this chapter shall be construed to require an original 2 equipment manufacturer to divulge a trade secret to an owner or an 3 independent service provider except as necessary to provide documentation, 4 parts, and tools on fair and reasonable terms. 5 (b) No provision in this chapter shall be construed to alter the terms of any 6 arrangement described in subdivision 4051(1) of this title in force between an 7 authorized repair provider and an original equipment manufacturer, including 8 the performance or provision of warranty or recall repair work by an 9 authorized repair provider on behalf of an original equipment manufacturer 10 pursuant to such arrangement, except that any provision in such terms that 11 purports to waive, avoid, restrict, or limit the original equipment 12 manufacturer’s obligations to comply with this chapter shall be void and 13 unenforceable. 14 Sec. 3. APPLICABILITY 15 This act applies with respect to a personal electronic device sold or in use 16 on or after the effective date of this act. 17 Sec. 4. EFFECTIVE DATE 18 This act shall take effect on July 1, 2022. 19