Bill Summary – FastDemocracy

PRIOR PRINTER'S NO. 3566                         PRINTER'S NO.   3695
                    THE GENERAL ASSEMBLY OF PENNSYLVANIA
                        HOUSE BILL
                        No. 2535
                                               Session of
                                                 2024
     INTRODUCED BY MULLINS, PISCIOTTANO, WEBSTER, HILL-EVANS,
        McANDREW, MADDEN, GALLAGHER, HOHENSTEIN, McNEILL, BRENNAN,
        FIEDLER, VENKAT, SANCHEZ, KENYATTA, KHAN, JAMES, DALEY,
        GREEN, GUENST, SHUSTERMAN, MUNROE, OTTEN, GILLEN, WAXMAN,
        HOWARD, PIELLI, SALISBURY, FRANKEL AND HANBIDGE,
        AUGUST 15, 2024
     AS REPORTED FROM COMMITTEE ON COMMERCE, HOUSE OF
        REPRESENTATIVES, AS AMENDED, OCTOBER 1, 2024
                                    AN ACT
 Requiring manufacturers of digital electronic equipment to make
    available to owners and independent repair providers, on fair
    and reasonable terms, documentation, parts and tools used to
    diagnose, maintain and repair digital electronic equipment;
    and imposing a penalty.
    The General Assembly of the Commonwealth of Pennsylvania
 hereby enacts as follows:
 Section 1.    Short title.
    This act shall be known and may be cited as the Right-to-
 Repair Act.
 Section 2.    Definitions.
    The following words and phrases when used in this act shall
 have the meanings given to them in this section unless the
 context clearly indicates otherwise:
    "Authorized repair provider."   As follows:
        (1)    An individual or business entity that has an
    arrangement with the OEM under which the OEM grants to the
    individual or business entity a license to use a trade name,
    service mark or other proprietary identifier for the purposes
    of offering the services of diagnosis, maintenance or repair
    of equipment under the name of the OEM or other arrangement
    with the OEM to offer the services on behalf of the OEM.
          (2)   An OEM that offers the services of diagnosis,
    maintenance or repair of the OEM's own equipment and who does
    not have an arrangement described under paragraph (1) with an
    unaffiliated individual or business.
    "Diagnosis."    The process of identifying the issue that
 causes digital electronic equipment to not be in full working
 order.
    "Digital electronic equipment."      A product manufactured for
 the first time, and first sold or used in this Commonwealth, on
 or after July 1, 2021, and that depends for its functioning, in
 whole or in part, on digital electronics embedded in or attached
 to the product.
    "Documentation."    A manual, diagram, reporting output,
 service code description, schematic diagram or other information
 used in effecting the services of diagnosis, maintenance or
 repair of equipment.
    "Fair and reasonable terms."     Terms that make documentation,
 tools or parts available as follows:
          (1)   With respect to documentation, that the
    documentation is made available by the OEM at no charge,
    except that when the documentation is requested in physical
    printed form, a charge may be included for the reasonable,
    actual costs of preparing and sending the copy.
          (2)   With respect to tools, that the tools are made
    available by the OEM at no charge and without imposing
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  impediments to access or use of the tools to diagnose,
  maintain or repair and enable full functionality of a device,
  or in a manner that impairs the efficient and cost-effective
  performance of the diagnosis, maintenance or repair, except
  that, when the tool is requested in physical form, a charge
  may be included for the reasonable, actual costs of preparing
  and sending the tool.
      (3)   With respect to parts, that the parts are made
  available by the OEM, either directly or through an
  authorized repair provider, to independent repair providers
  and owners at costs and terms that are equivalent to the most
  reasonable costs and terms under which an OEM offers the
  parts to an authorized repair provider and which:
            (i)    Accounts for any:
                   (A)   discount, rebate, convenient and timely
            means of delivery, means of enabling fully restored
            and updated functionality, rights of use or other
            incentive and preference the OEM offers to an
            authorized repair provider; or
                   (B)   additional cost, burden or impediment the
            OEM imposes on an owner or independent repair
            provider.
            (ii)    Is not conditioned on or imposing a substantial
      obligation or restriction that is not reasonably
      necessary for enabling the owner or independent repair
      provider to engage in the diagnosis, maintenance or
      repair of equipment made by or on behalf of the OEM.
            (iii)    Is not conditioned on an arrangement described
      under paragraph (1) of the definition of "authorized
      repair provider."
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    "Independent repair provider."       An individual or business
 entity operating in this Commonwealth that is not an authorized
 repair provider and that is engaged in the services of
 diagnosis, maintenance or repair of equipment.
    "Maintenance."   An act necessary to keep currently working
 digital electronic equipment in full working order.
    "Medical device."   An instrument apparatus, implement,
 machine, contrivance, implant or other similar or related
 article, including a component part or accessory, including a
 device as defined under 21 U.S.C. § 321(h) (relating to
 definitions; generally), which is intended for use in the
 diagnosis of disease or other condition, or in the cure,
 mitigation, treatment or prevention of disease in humans or
 other animals.
    "Motor vehicle."    A vehicle that is designed for transporting
 individuals or property on a street or highway and is certified
 by the motor vehicle manufacturer under all applicable Federal
 safety and emissions standards and requirements for distribution
 and sale in the United States.
    "Motor vehicle manufacturer."       An individual or business
 entity operating as a manufacturer, as defined under 75 Pa.C.S.
 § 102 (relating to definitions).
    "Original equipment manufacturer" or "OEM."       An individual or
 business entity engaged in the selling, leasing or supplying of
 new equipment manufactured by or on behalf of itself to an
 individual or business entity.
    "Owner."   An individual or business entity that owns or
 leases equipment purchased or used in this Commonwealth.
    "Part."    A new or used replacement part made available by or
 to an OEM for the purpose of effecting the maintenance or repair
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 of equipment manufactured by or on behalf of, sold or supplied
 by the OEM.
    "Parts pairing."   A manufacturer's practice of using software
 to identify component parts through a unique identifier.
    "SECURITY AND LIFE SAFETY SYSTEMS AND EQUIPMENT."     A PRODUCT   <--
 DESIGNED TO PREVENT, DETECT, PROTECT AGAINST OR RESPOND TO
 SECURITY INCIDENTS OR SAFETY HAZARDS IMPACTING INDIVIDUALS OR
 PROPERTY, INCLUDING, BUT NOT LIMITED TO:
        (1)    A FIRE ALARM.
        (2)    A MEDICAL ALERT.
        (3)    INTRUSION DETECTION.
        (4)    VIDEO SECURITY.
        (5)    AN ACCESS CONTROL SYSTEM OR DEVICE.
    "Tool."    A software program, hardware implement or other
 apparatus used for diagnosis, maintenance or repair of
 equipment, including software or other mechanisms that:
        (1)    provision, program or pair a new part;
        (2)    calibrate functionality; or
        (3)    perform any other function required to make the
    product fully functional, including any updates.
    "Trade secret."    As defined under 18 Pa.C.S. § 3930 (relating
 to theft of trade secrets).
    "Updates."   Recommended corrections or adjustments to parts,
 tools or information that are created and distributed by the OEM
 and used in offering the services of diagnosis, maintenance or
 repair of digital electronic equipment.
    "Video game console."      A computing device or system and the
 components and peripherals that are primarily used by consumers
 for playing video games. The term does not include a general or
 all-purpose computer such as a desktop computer, laptop, tablet
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 or cell phone.
 Section 3.   Provision.
    For equipment and parts for the equipment that are sold or
 used in this Commonwealth:
        (1)   An OEM shall make available, on fair and reasonable
    terms, documentation, parts and tools required for the
    purpose of diagnosis, maintenance or repair, including
    updates to information, to an independent repair provider or
    to the owner of the equipment manufactured by or on behalf of
    or sold or supplied by the OEM. The documentation, parts and
    tools reference may be made available either directly by an
    OEM or via an authorized repair provider or authorized third-
    party provider.
        (2)   Nothing under this subsection shall require an OEM
    to make available parts or tools if the parts or tools are no
    longer available to the OEM.
        (3)   For digital electronic equipment manufactured for
    the first time and first sold or used in this Commonwealth
    after July 1, 2021, an OEM may not use parts pairing to:
              (i)    Prevent or inhibit an independent repair
        provider or an owner from installing or enabling the
        function of an otherwise functional replacement part or a
        component of digital electronic equipment, including a
        replacement part or component, that the OEM has not
        approved.
              (ii)    Reduce the functionality or performance of
        digital electronic equipment.
              (iii)    Cause digital electronic equipment to display
        misleading alerts or warnings about unidentified parts
        which the owner cannot immediately dismiss.
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 Section 4.     Civil penalty.
    (a)   Violation.--A person that violates a provision of this
 act shall be subject to a civil penalty of not less than $1,000
 nor more than $10,000 for each violation. A penalty imposed
 under this section shall be paid to the Commonwealth.
    (b)   Enforcement.--The Attorney General shall institute a
 proceeding to recover the civil penalty provided under
 subsection (a) against any person liable to the Commonwealth for
 the penalty.
 Section 5.     Limitations and exclusions.
    (a)   Limitations.--Nothing in this act shall:
          (1)   Require an OEM to disclose a trade secret except as
    necessary to provide, on fair and reasonable terms, any
    documentation, tool, part or other device or implement used
    to diagnose, maintain, repair or update digital electronic
    equipment.
          (2)   Alter the terms of an arrangement in force between
    an authorized repair provider and an OEM, including the
    performance or provision of warranty or recall repair work by
    an authorized repair provider on behalf of an OEM and
    pursuant to the arrangement, except that a provision in the
    terms that purports to waive, avoid, restrict or limit the
    OEM's obligations to comply with this section shall be void
    and unenforceable.
          (3)   Authorize a person to alter equipment in a manner
    that the equipment operates in violation of an environmental,
    safety or other law.
          (4)   Hold an OEM liable for damage or injury caused by an
    independent repair provider or owner which occurs during the
    course of the repair, diagnosis or maintenance, including
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  indirect, incidental, special or consequential damage, loss
  of data, privacy or profits or liability to use or reduce
  functionality of the equipment.
      (5)   Require an OEM to warrant repairs provided by
  independent repair providers or owners.
      (6)   Require an OEM to provide documentation or tools
  that the OEM uses to perform, at no cost, diagnostic services
  virtually through telephone, Internet, chat, email or other
  similar means that do not involve the OEM physically handling
  the digital electronic equipment, unless the OEM also makes
  the documentation or tools available to an individual or
  business that is unaffiliated with the OEM.
      (7)   Require an OEM to provide documentation or tools
  used exclusively by the OEM for diagnosis, maintenance or
  repairs completed by machines that operate on several digital
  electronic equipment products simultaneously if the OEM makes
  available to owners and independent repair providers
  sufficient alternative documentation and tools to effect the
  diagnosis, maintenance or repair of the digital electronic
  equipment.
      (8)   Require an OEM to provide or make available source
  code.
      (9)   Invalidate or alter the terms of any agreement
  between an OEM and an authorized repair provider, including
  the performance or provision of warranty or recall repair
  work by an authorized repair provider on behalf of an OEM
  pursuant to an authorized repair agreement, except that any
  provision in an authorized repair agreement that purports to
  waive, avoid, restrict or limit an original manufacturer's
  compliance with this act shall be void and unenforceable.
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  (b)   Exclusions.--Nothing under this act shall apply to:
        (1)   a motor vehicle manufacturer or a manufacturer of
  motor vehicle equipment, acting in their capacity as a motor
  vehicle manufacturer or a manufacturer of motor vehicle
  equipment;
        (2)   a manufacturer or distributor of a medical device or
  a digital electronic product or embedded software
  manufactured for use in a medical setting, including
  diagnostic, monitoring or control equipment, or a product or
  service that the manufacturer or distributor of a medical
  device offers; or                                                     <--
        (3)   a manufacturer, distributor, importer or dealer of:
              (i)    off-road equipment, including farm and utility
        tractors, farm implements and farm machinery;
              (ii)    forestry equipment;
              (iii)    industrial equipment;
              (iv)    utility equipment;
              (v)    construction equipment;
              (vi)    road-building equipment;
              (vii)    compact construction equipment;
              (viii)    mining equipment;
              (ix)    turf, yard and garden equipment;
              (x)    outdoor power equipment, including portable
        generators;
              (xi)    marine, all-terrain sports and recreational
        vehicles, including racing vehicles;
              (xii)    stand-alone or integrated stationary or mobile
        internal combustion engines or other power sources,
        including generator sets, electric/battery and fuel cell
        power;
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                   (xiii)    tools, technology, attachments, accessories,
             components and repair parts for any of the foregoing; and <--
                   (xiv)    safety communications equipment, the intended
             use of which is for emergency response or prevention
             purposes by an emergency service organization such as a
             police, fire or medical and emergency rescue services
             agency.; AND                                                     <--
                   (XV)     SECURITY AND LIFE SAFETY SYSTEMS AND EQUIPMENT;
             OR
             (4)   AN OEM THAT PROVIDES TO THE OWNER OF EQUIPMENT
       MANUFACTURED BY OR ON BEHALF OF, SOLD OR SUPPLIED BY THE OEM,
       AT NO CHARGE TO THE OWNER:
                   (I)    REIMBURSEMENT OF THE COST OF THE EQUIPMENT; OR
                   (II)    EQUIVALENT OR BETTER, READILY AVAILABLE
             REPLACEMENT EQUIPMENT.
       (c)   Construction.--Nothing in this act shall be construed
 to:
             (1)   Require an OEM or authorized repair provider to make
       available parts, tools or documentation required for the
       diagnosis, maintenance or repair of a video game console and
       its components and peripherals.
             (2)   Require an OEM to make available special
       documentation, tools and parts that would disable or override
       privacy or antitheft security measures set by the owner of
       the product.
             (3)   Alter any federally recognized copyright protection
       or patent rights granted to the OEM.
             (4)   PROHIBIT A PERSON FROM REPLACING THE BATTERY IN A          <--
       RESIDENTIAL SMOKE DETECTOR.
 Section 6.        Effective