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Full Text of hb3030  100th General Assembly

HB3030 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3030

 

Introduced , by Rep. David Harris

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Digital Fair Repair Act. Provides that original equipment manufacturers shall: (i) make available to any independent repair provider or owner of equipment manufactured by the original equipment manufacturer the same diagnostic and repair documentation in the same manner as that information is made available to the manufacturer's authorized repair providers; and (ii) make available for purchase by the owner, his or her authorized agent, or any independent repair provider, parts, inclusive of any updates to the embedded software of the parts, upon fair and reasonable terms. Requires original equipment manufacturers to make available for purchase by owners and independent repair providers all diagnostic repair tools incorporating the same diagnostic, repair, and remote communications capabilities that the original equipment manufacturer makes available to its own repair or engineering staff or an authorized repair provider. Requires an independent repair provider that purchases or acquires embedded software or service parts to notify the owner of the equipment in writing of certain warranties prior to performing any services on digital electronic equipment. Provides, with one exception, an authorized provider shall have all the rights and remedies provided under the Act. Provides for enforcement by the Attorney General. Authorizes the Attorney General to seek to enjoin violations and to recover civil penalties. Requires the Attorney General to establish an outreach program to inform the public of rights under the Act. Defines terms. Excludes motor vehicle manufacturers. Provides for recovery of damages and attorney's fees. Provides for the protection of trade secrets. Effective January 1, 2018.


LRB100 10473 JLS 20686 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB3030LRB100 10473 JLS 20686 b

1    AN ACT concerning business.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Digital Fair Repair Act.
 
6    Section 5. Definitions. In this Act:
7    "Authorized repair provider" means a person or a business
8that has an arrangement for a definite or indefinite period in
9which an original equipment manufacturer grants to a separate
10business organization or individual a license to use a trade
11name, service mark, or related characteristic for the purposes
12of offering repair services under the name of the original
13equipment manufacturer.
14    "Digital electronic equipment" or "equipment" means a part
15or equipment originally manufactured for distribution and sale
16in the United States.
17    "Documentation" means any manuals, diagrams, reporting
18output, or service code description provided to the authorized
19repair providers for purposes of effecting repair.
20    "Embedded software" means any programmable instructions
21provided on firmware delivered with the equipment or part for
22the purposes of equipment operation, including all relevant
23patches and fixes made by the manufacturer for this purpose,

 

 

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1including, but not limited to, a basic internal operating
2system, an internal operating system, a machine code, an
3assembly code, a root code, and a microcode.
4    "Fair and reasonable terms" means an equitable price in
5light of relevant factors, including, but not limited to:
6        (1) the net cost to the authorized repair provider for
7    similar information obtained from an original equipment
8    manufacturer, less any discounts, rebates, or other
9    incentive programs;
10        (2) the cost to the original equipment manufacturer for
11    preparing and distributing the information, excluding any
12    research and development costs incurred in designing and
13    implementing, upgrading, or altering the product, but
14    including amortized capital costs for the preparation and
15    distribution of the information;
16        (3) the price charged by other original equipment
17    manufacturers for similar information;
18        (4) the price charged by original equipment
19    manufacturers for similar information prior to the launch
20    of original equipment manufacturer web sites;
21        (5) the ability of aftermarket technicians or shops to
22    afford the information;
23        (6) the means by which the information is distributed;
24        (7) the extent to which the information is used, which
25    includes the number of users, and frequency, duration, and
26    volume of use; and

 

 

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1        (8) inflation.
2    "Firmware" means a software program or set of instructions
3programmed on a hardware device to allow the device to
4communicate with other computer hardware.
5    "Independent repair provider" means a person or business
6operating in this State that is not affiliated with an original
7equipment manufacturer or an original equipment manufacturer's
8authorized repair provider, that is engaged in the diagnosis,
9service, maintenance, or repair of equipment, except that an
10original equipment manufacturer shall be considered an
11independent repair provider for purposes of those instances
12when the original equipment manufacturer engages in the
13diagnosis, service, maintenance, or repair of digital
14equipment that is not affiliated with the original equipment
15manufacturer.
16    "Motor vehicle" means a vehicle that is designed for
17transporting persons or property on a street or highway and is
18certified by the manufacturer under all applicable federal
19safety and emissions standards and requirements for
20distribution and sale in the United States. Motor vehicle does
21not include:
22        (1) a motorcycle; or
23        (2) a recreational vehicle or an auto home equipped for
24    habitation.
25    "Motor vehicle dealer" means a person or business who, in
26the ordinary course of business, is engaged in the business of

 

 

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1selling or leasing new motor vehicles to a person or business
2pursuant to a franchise agreement, has obtained a license under
3the Illinois Vehicle Code, and is engaged in the diagnosis,
4service, maintenance, or repair of motor vehicles or motor
5vehicle engines pursuant to that franchise agreement.
6    "Motor vehicle manufacturer" means a person or business
7engaged in the business of manufacturing or assembling new
8motor vehicles.
9    "Original equipment manufacturer" means a person or
10business who, in the ordinary course of its business, is
11engaged in the business of selling or leasing new digital
12electronic equipment or parts of equipment to any person or
13business and is engaged in the diagnosis, service, maintenance,
14or repair of digital electronic equipment or parts of such
15equipment.
16    "Owner" means a person or business who owns or leases a
17digital electronic product purchased or used in this State.
18    "Service parts" or "parts" means any replacement part,
19either new or used, made available by the original equipment
20manufacturer to the authorized repair provider for purposes of
21effecting repair.
22    "Trade secret" means (1) anything tangible or intangible or
23electronically stored or kept which constitutes, represents,
24evidences, or records intellectual property, including secret
25or confidentially held designs, processes, procedures,
26formulas, inventions, or improvements, (2) secret or

 

 

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1confidentially held scientific, technical, merchandising,
2production, financial, business, or management information, or
3(3) any other trade secret as defined in 18 U.S.C. 1839, as
4that Section existed on January 1, 2016.
 
5    Section 10. Requirements.
6    (a) For equipment and parts sold and used in this State,
7the original equipment manufacturer of the equipment and parts
8shall:
9        (1) make available to any independent repair provider
10    or owner of products manufactured by the original equipment
11    manufacturer diagnostic and repair documentation,
12    including repair technical updates and updates and
13    corrections to embedded software, for no charge or in the
14    same manner and in the same timeframe as the original
15    equipment manufacturer makes that diagnostic and repair
16    documentation, including repair technical updates and
17    updates and corrections to embedded software, available to
18    its authorized repair provider; and
19        (2) make available for purchase by the owner, his or
20    her authorized agent, or any independent repair provider,
21    parts, inclusive of any updates to the embedded software of
22    the parts, upon fair and reasonable terms.
23    Nothing in this Section requires the original equipment
24manufacturer to sell equipment or service parts if the parts
25are no longer available to the original equipment manufacturer

 

 

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1or the authorized repair provider of the original equipment
2manufacturer.
3    (b) An original equipment manufacturer that sells any
4diagnostic, service, or repair documentation to any
5independent repair provider or to any owner in a format that is
6standardized with other original equipment manufacturers, and
7on terms and conditions more favorable than the manner and the
8terms and conditions pursuant to which the authorized repair
9provider obtains the same diagnostic, service, or repair
10documentation, shall be prohibited from requiring an
11authorized repair provider to continue purchasing diagnostic,
12service, or repair documentation in a proprietary format,
13unless such proprietary format includes diagnostic, service,
14or repair documentation or functionality that is not available
15in such standardized format.
16    (c) An original equipment manufacturer of equipment sold or
17used in this State shall make available for purchase by owners
18and independent repair providers all diagnostic repair tools
19incorporating the same diagnostic, repair, and remote
20communications capabilities that the original equipment
21manufacturer makes available to its own repair or engineering
22staff or an authorized repair provider.
23    An original equipment manufacturer shall offer such tools
24for sale to an owner and independent repair provider upon fair
25and reasonable terms. An original equipment manufacturer that
26provides diagnostic repair documentation to aftermarket

 

 

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1diagnostic tool manufacturers, diagnostics providers, or
2service information publications and systems shall have fully
3satisfied its obligations under this Section and thereafter not
4be responsible for the content and functionality of such
5aftermarket diagnostic tools, diagnostics, or service
6information systems.
7    (d) Original equipment manufacturer equipment or parts
8sold or used in this State for the purpose of providing
9security-related functions may not exclude diagnostic,
10service, and repair documentation necessary to reset a
11security-related electronic function from information provided
12to an owner or independent repair provider. If excluded under
13this Act, the documentation necessary to reset an immobilizer
14system or security-related electronic module shall be obtained
15by an owner or independent repair provider through the
16appropriate secure data release systems.
 
17    Section 15. Notice to consumers. An independent repair
18provider that purchases or acquires embedded software or
19service parts shall, prior to performing any services on
20digital electronic equipment, notify the owner of the equipment
21in writing that:
22        (1) consumers should review the terms and conditions of
23    the warranty for such digital electronic equipment as
24    repairs not performed by an authorized repair provider
25    could affect the terms and conditions of the warranty;

 

 

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1        (2) warrantors cannot require that only branded parts
2    be used with the product in order to retain the warranty;
3        (3) warrantors must demonstrate that a defect or damage
4    was caused by independent repair to affect the warranty;
5        (4) warranties are governed by the federal
6    Magnuson-Moss Warranty Act; and
7        (5) the independent repair provider is not an
8    authorized repair provider for such digital electronic
9    equipment.
 
10    Section 20. Rights of authorized repair provider. Except in
11the instance of a dispute arising between an original equipment
12manufacturer and its authorized repair provider related to
13either party's compliance with an existing authorized repair
14agreement, an authorized repair provider shall have all the
15rights and remedies provided in this Act.
 
16    Section 25. Duties of Attorney General. The Attorney
17General shall develop, establish, and implement a public
18outreach program directed at independent repair providers,
19consumers, and digital electronic original equipment
20manufacturers to inform them of their rights and
21responsibilities pursuant to this Act. The public outreach
22shall include brochures, consumer guides, posters, or any
23combination thereof and be made available to consumers and
24other stakeholders by any means deemed appropriate by such

 

 

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1division and may include internet, radio, and print
2advertising. The public outreach may also identify and recruit
3individuals or trade organizations to assist in distributing
4this information and materials. The public outreach shall begin
5no later than the 30th day after the effective date of this
6Act.
 
7    Section 30. Injunctions.
8    (a) Whenever the Attorney General believes from
9satisfactory evidence that any person, firm, corporation,
10association, or agent or employee thereof has engaged in or is
11about to engage in any act or practice that is a violation of
12this Act the Attorney General may bring an action in the manner
13provided under the Consumer Fraud and Deceptive Business
14Practices Act to enjoin the unlawful act or practice and to
15obtain restitution of any moneys or property obtained directly
16or indirectly by the unlawful act or practice.
17    (b) Before bringing an action under this Section, the
18Attorney General shall give the person against whom such
19proceeding is contemplated notice by certified mail and an
20opportunity to show in writing within 5 business days after
21receipt of notice why proceedings should not be instituted,
22unless the Attorney General finds, in any case seeking
23preliminary relief, that to give such notice and opportunity is
24not in the public interest.
25    (c) In connection with any proposed proceeding under this

 

 

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1Section, the Attorney General is authorized to take proof and
2make a determination of the relevant facts and issue subpoenas.
 
3    Section 35. Limitations.
4    (a) Nothing in this Act shall be construed to require an
5original equipment manufacturer to divulge a trade secret.
6    (b) No provision in this Act shall be read, interpreted, or
7construed to abrogate, interfere with, contradict, or alter the
8terms of any agreement executed and in force between an
9authorized repair provider and an original equipment
10manufacturer, including, but not limited to, the performance or
11provision of warranty or recall repair work by an authorized
12repair provider on behalf of an original equipment manufacturer
13pursuant to such authorized repair agreement, except that any
14provision in such an authorized repair agreement that purports
15to waive, avoid, restrict, or limit an original equipment
16manufacturer's compliance with this Section shall be void and
17unenforceable.
18    (c) Nothing in this Act shall be construed to require an
19original equipment manufacturer or an authorized repair
20provider to provide an owner or independent repair provider
21access to non-diagnostic and repair documentation provided by
22an original equipment manufacturer to an authorized repair
23provider pursuant to the terms of an authorizing agreement.
 
24    Section 40. Exclusions. Nothing in this Act applies to

 

 

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1motor vehicle manufacturers, any product or service of a motor
2vehicle manufacturer, or motor vehicle dealers.
 
3    Section 45. Penalty. Any person, firm, corporation, or
4association or agent or employee thereof who engages in any act
5or practice that is a violation of this Act is liable for a
6civil penalty of not more than $500 for each violation, which
7may be recovered in a civil action brought by the Attorney
8General.
 
9    Section 50. Applicability. This Act applies to equipment
10sold or in use on or after the effective date of this Act.
 
11    Section 99. Effective date. This Act takes effect January
121, 2018.