THE SENATE

S.B. NO.

425

THIRTIETH LEGISLATURE, 2019

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO FAIR DIGITAL ELECTRONIC EQUIPMENT REPAIR.

 

 

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

 


SECTION 1. The legislature finds that the goal of "right to repair" laws is to make it possible for consumers to repair broken electronic equipment, such as computers, smart phones, and appliances, by requiring manufacturers to make repair manuals and other information publicly available and to sell to consumers and independent repair shops the parts, diagnostic software, and tools needed to fix their products. At least twelve states have considered right to repair laws over the past few years. Without the enactment of these laws, consumers must rely on the manufacturer for any repairs. To address this concern, the legislature concludes that it is appropriate to ensure that consumers have the ability to repair their own devices or pay an independent shop to repair their devices.

The legislature intends that motor vehicle manufacturers be excluded from the scope of this Act.

The purpose of this Act is to establish fair right to repair laws in the State for digital electronic equipment.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

FAIR DIGITAL ELECTRONIC EQUIPMENT REPAIR ACT

-1 Definitions. As used in this chapter, unless the context otherwise requires:

"Authorized repair provider" means:

(1) A person licensed by an original equipment manufacturer to use a trade name, service mark, or related characteristic to offer repair services under the name of the original equipment manufacturer; or

(2) A person contracted by an original equipment manufacturer to provide refurbishing services for products manufactured by the manufacturer.

"Embedded software", also known as basic internal operating system, internal operating system, machine code, assembly code, root code, or microcode means any programmable instructions provided on firmware delivered with equipment for equipment operation, including all relevant software updates made by the original equipment manufacturer.

"Equipment" means a digital electronic device, or a part thereof, that is originally manufactured for distribution or sale in the United States.

"Firmware" means a software program or set of instructions programmed on equipment that enables the equipment to communicate with other computer devices.

"Independent repair provider" means a person operating in this State who is:

(1) Not affiliated with an original equipment manufacturer or an original equipment manufacturer's authorized repair provider; and

(2) Engaged in the diagnosis, service, maintenance, or repair of equipment;

provided that an original equipment manufacturer shall be considered an independent repair provider if the original equipment manufacturer diagnoses, services, maintains, or repairs equipment that is not manufactured by the original equipment manufacturer.

"Medical device" means equipment that is intended for use in the diagnosis, treatment, or prevention of disease in humans or animals.

"Original equipment manufacturer" means a person who in the ordinary course of business sells or leases new equipment to any person and diagnoses, services, maintains, or repairs that equipment.

"Owner" means a person who owns or leases equipment purchased or used in the State.

"Part" or "service part" means any new or used component made available by an original equipment manufacturer to an authorized repair provider to repair equipment.

"Remote diagnostics" means any transfer of data relating to settings controls or location identification between equipment and a provider of repair services.

"Trade secret" means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; provided that:

(1) The owner thereof has taken reasonable measures to keep the information secret; and

(2) The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.

-2 Applicability of chapter. This chapter shall not apply to:

(1) A manufacturer, as defined in section 437-1.1, or a product or service of a manufacturer;

(2) A motor vehicle repair dealer, as defined in section 437B-1;

(3) A motor vehicle mechanic, as defined in section 437B-1; or

(4) A dealer, as defined in section 437-1.1.

-3 Availability of diagnostic and repair information; service parts. (a) An original equipment manufacturer of equipment and parts sold or used in the State shall:

(1) In a timely manner, make available to independent repair providers or owners of equipment manufactured by the original equipment manufacturer, diagnostic and repair information, including repair technical updates, schematic diagrams, updates, corrections to embedded software, and safety and security patches; provided that:

(A) Diagnostic and repair information shall be made available at no charge or for no more than what the original equipment manufacturer would charge to make the same information available to an authorized repair provider; and

(B) Diagnostic and repair information shall be made available in the same format that the original equipment manufacturer would use to make the same information available to an authorized repair provider; and

(2) Make available for purchase by the owner, the owner's authorized agent, or an independent repair provider, equipment or service parts, inclusive of any updates to the embedded software of the equipment or parts;

provided that an original equipment manufacturer shall not be required to make equipment or service parts available for purchase if the parts are no longer available to the original equipment manufacturer or the authorized repair provider of the original equipment manufacturer.

(b) Any original equipment manufacturer that sells or offers for sale any diagnostic, service, or repair documentation to any independent repair provider or to any owner in a format that is standardized with other original equipment manufacturers and upon terms that are more favorable than the terms under which the original equipment manufacturer sells or offers for sale the same diagnostic, service, or repair documentation to an authorized repair provider, shall be prohibited from requiring any authorized repair provider to continue purchasing diagnostic, service, or repair documentation in a proprietary format, unless the proprietary format includes diagnostic, service, or repair documentation or functionality that is not available in the standardized format.

-4 Availability of diagnostic tools. Each original equipment manufacturer of equipment sold or used in this State shall offer for sale to owners and independent repair providers all diagnostic repair tools, incorporating the same diagnostic, repair, and remote diagnostics capabilities that the original equipment manufacturer makes available to its own repair or engineering staff or an authorized repair provider.

-5 Fair and reasonable terms. (a) The terms of any sale of diagnostic, service, or repair documentation or diagnostic repair tools to an owner or independent repair provider pursuant to sections    -3 or    -4 shall be fair and reasonable.

(b) For the purposes of this section, "fair and reasonable" means an equitable price considering relevant factors, including:

(1) The net cost to the authorized repair provider for similar information or tools obtained from an original equipment manufacturer, less any discounts, rebates, or other incentive programs;

(2) The cost to the original equipment manufacturer for preparing and distributing the information or tools, 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 information or tools;

(3) The price charged by other original equipment manufacturers for similar information or tools;

(4) The price charged by the original equipment manufacturer for similar information or tools prior to the launch of original equipment manufacturer websites;

(5) The means by which the information or tools are distributed;

(6) The extent to which the information or tools are used, including the number of users, and frequency, duration, and volume of use; and

(7) Inflation.

-6 Third party providers. An original equipment manufacturer that provides diagnostic repair documentation to third party diagnostic tool manufacturers, diagnostics manufacturers, or service information publications shall be deemed to have fully satisfied its obligations under sections    -3 and    -4 and shall not be responsible for the content and functionality of the diagnostic tools, diagnostics, or service information publications offered or sold by those third party manufacturers.

-7 Security functions. An original equipment manufacturer of equipment or parts sold or used in this State for security-related functions shall not exclude diagnostic, service, and repair information necessary to reset a security-related electronic function from the information provided to owners and independent repair providers pursuant to this chapter. An original equipment manufacturer may provide the information necessary to reset an immobilizer system or a security-related electronic module to owners and independent repair providers through an appropriate secure data release system.

-8 Limitations. Nothing in this chapter shall be construed to:

(1) Require an original equipment manufacturer to divulge a trade secret;

(2) Abrogate, interfere with, contradict, or alter the terms of any agreement between an authorized repair provider and an original equipment manufacturer, including the performance or provision of warranty or recall repair work by an authorized repair provider on behalf of an original equipment manufacturer; provided that any provision of an agreement that waives, avoids, restricts, or limits an original equipment manufacturer's compliance with this section shall be held void and unenforceable;

(3) Require an original equipment manufacturer or authorized repair provider to provide an owner or independent repair provider access to non-diagnostic and repair information provided by an original equipment manufacturer to an authorized repair provider pursuant to the terms of an authorizing agreement; or

(4) Require a manufacturer of a medical device to comply with any provision in this chapter that conflicts with the Federal Food, Drug, and Cosmetic Act, as may be amended.

-9 Enforcement. A violation of this chapter shall be deemed an unfair or deceptive act or practice under section 480‑2."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Digital Electronic Equipment Repairs; Right to Repair

 

Description:

Requires original equipment manufacturers of digital electronic devices to make diagnostic and repair information available to device owners and independent repair providers.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.