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HF 1048

as introduced - 89th Legislature (2015 - 2016) Posted on 02/19/2015 04:42pm

KEY: stricken = removed, old language. underscored = added, new language.

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A bill for an act
relating to commerce; establishing fair repair requirements for manufacturers of
digital electronic products;proposing coding for new law in Minnesota Statutes,
chapter 325E.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

[325E.72] FAIR REPAIR REQUIREMENTS.

Subdivision 1.

Definitions.

(a) As used in this section, the following terms shall
have the meanings given them in paragraphs (b) to (l).

(b) "Authorized repair provider" means an oral or written arrangement for a
definite or indefinite period in which a manufacturer or distributor transfers to a separate
business organization or individual license to use a trade name, service mark, or
relative characteristic for the purposes of offering repair services under the name of the
manufacturer.

(c) "Digital electronic product" means a part or machine containing a microprocessor
originally manufactured for distribution and sale in the United States.

(d) "Documentation" means manuals, diagrams, reporting output, or service code
descriptions provided to the authorized repair provider for the purposes of effecting repair.

(e) "Embedded software" means programmable instructions provided on firmware
delivered with the digital electronic product for the purposes of product operation,
including all relevant patches and fixes made by the manufacturer for this purpose,
including, but not limited to, synonyms "basic internal operating system," "internal
operating system," "machine code," "assembly code," "root code," and "microcode."

(f) "Fair and reasonable terms" means an equitable price in light of relevant factors,
including, but not limited to, the following:

(1) the net cost to the authorized repair provider for similar parts obtained from
manufacturers, less any discounts, rebates, or other incentive programs;

(2) the cost to the manufacturer for preparing and distributing the parts or product
excluding any research and development costs incurred in designing and implementing,
upgrading or altering the product, but including amortized capital costs for the preparation
and distribution of the parts; and

(3) the price charged by other manufacturers for similar parts or products.

(g) "Independent repair provider" means an individual or business operating in
the state that is not affiliated with a manufacturer or a manufacturer's authorized dealer
of a digital electronic product, which is engaged in the diagnosis, service, maintenance,
or repair of a digital electronic product. A manufacturer's authorized dealer shall be
considered an independent repair provider for the purposes of those instances when the
dealer engages in the diagnosis, service, maintenance, or repair of a digital electronic
product that is not affiliated with the manufacturer.

(h) "Manufacturer" means an individual or business who, in the ordinary course of
its business, is engaged in the business of selling or leasing new digital electronic products
to consumers or other end users, and is engaged in the diagnosis, service, maintenance,
or repair of that product.

(i) "Owner" means an individual or business who lawfully acquires a digital
electronic product purchased or used in the state of Minnesota.

(j) "Remote diagnostics" means a remote data transfer function between a digital
electronic product and a provider of repair services including for purposes of remote
diagnostics, settings controls, or location identification.

(k) "Service parts" means replacement parts, either new or used, made available by
the manufacturer to the authorized repair provider for the purposes of effecting repair.

(l) "Trade secret" means anything tangible or intangible or electronically stored or
kept which constitutes, represents, evidences, or records intellectual property including
secret or confidentially held designs, processes, procedures, formulas, inventions or
improvements, or secrets of confidentially held scientific, technical, merchandising,
production, financial, business or management information, or anything within the
definition of United States Code, title 18, section 1839, paragraph (3).

Subd. 2.

Fair repair requirements.

(a) Manufacturers of digital electronic products
sold or used in the state must:

(1) make available to independent repair facilities or owners of products
manufactured by the manufacturer diagnostic and repair information, including repair
technical updates, diagnostic software, service access passwords, updates and corrections
to firmware, and related documentation, free of charge and in the same manner the
manufacturer makes available to its authorized repair providers; and

(2) make available for purchase by the product owner, or the authorized agent of
the owner, such service parts, inclusive of any updates to the firmware of the parts,
for purchase upon fair and reasonable terms. Nothing in this section shall require the
manufacturer to sell service parts if the service parts are no longer available to the
manufacturer or the authorized repair channel of the manufacturer.

(b) Manufacturers that sell any diagnostic, service, or repair information to
any independent repair provider or any other third-party provider in a format that is
standardized with other manufacturers, and on terms and conditions more favorable
than the manner and the terms and conditions pursuant to which an authorized repair
provider obtains the same diagnostic, service, or repair information, shall be prohibited
from requiring any authorized repair provider to continue purchasing diagnostic, service,
or repair information in a proprietary format, unless such proprietary format includes
diagnostic, service, repair, or dealership operations information or functionality that is
not available in such standardized format.

(c) Manufacturers of digital electronic products sold or used in the state shall make
available for purchase by owners and independent repair facilities all diagnostic repair
tools, incorporating the same diagnostic repair and remote diagnostic capabilities that such
manufacturer makes available to its own repair or engineering staff or any authorized
repair providers, upon fair and reasonable terms.

(d) Manufacturers that provide repair information to aftermarket tool, diagnostics,
or third-party service information publications and systems shall have fully satisfied its
obligations under this section and thereafter shall not be responsible for the content and
functionality of aftermarket diagnostic tools or service information systems.

(e) Manufacturers of digital electronic products sold or used in the state for the
purposes of providing security-related functions may not exclude diagnostic, service,
and repair information necessary to reset a security-related electronic function from
information provided to owners and independent repair facilities. If necessary for security
purposes, manufacturers may provide information necessary to reset and unlock system
or security-related electronic module to owners and independent repair facilities through
an appropriate secure data release system.

Subd. 3.

No requirement to divulge trade secret.

This section does not require
the manufacturer to divulge a trade secret.

Subd. 4.

No abrogation of contract.

Notwithstanding any law or rule to the
contrary, this section must not be read, interpreted, or construed to abrogate, interfere
with, contradict, or alter the terms of an agreement executed between an authorized
repair provider and a manufacturer, including, but not limited to, the performance of
provision of warranty or recall repair work by an authorized repair provider on behalf of
a manufacturer pursuant to the authorized repair agreement. Except in the instance of a
dispute arising between a manufacturer and its authorized repair provider related to either
party's compliance with an existing repair agreement, an authorized repair provider has all
the rights and remedies provided in this section.

Subd. 5.

No access to certain information.

This section does not require
manufacturers or authorized repair providers to provide an owner or independent repair
provider access to nondiagnostic and nonrepair information provided by a manufacturer to
an authorized repair provider pursuant to the terms of an authorizing agreement.

Subd. 6.

Right to cure.

(a) An independent repair provider or owner who believes
that a manufacturer has failed to provide information, including documentation, updates to
firmware, safety and security corrections, diagnostics, documentation, or a tool required
by this section must notify the manufacturer in writing and give the manufacturer 30
days from the time the manufacturer receives the complaint to cure the failure. If the
manufacturer cures such a complaint within the cure period, damages are limited to actual
damages in any subsequent litigation.

(b) If the manufacturer fails to respond to the notice provided pursuant to paragraph
(a), or if an independent repair facility or owner is not satisfied with the manufacturer's
cure, the independent repair facility or owner may file a complaint in district court. The
complaint must include the following:

(1) written information confirming that the complainant has attempted to acquire and
use, through the then available standard support function provided by the manufacturer
all relevant diagnostics, tools, service parts, documentation, and updates to embedded
software, including communication with customer assistance via the manufacturer's then
standard process, if made available by the manufacturer; and

(2) evidence of manufacturer notification as required by paragraph (a).

Subd. 7.

Enforcement.

The attorney general shall enforce this section under section
8.31.

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