SECTION 1. It is hereby found and declared:
Whereas motor vehicles are now equipped with sophisticated and complex computerized
monitoring and diagnostic systems; and whereas complete and accurate diagnostic, service and
repair information needs to be available to vehicle owners and all motor vehicle service industry
sectors in order to properly, safely, and affordably diagnose problems with, maintain, and repair
vehicles; and whereas such complete and accurate diagnostic, service and repair information may
not presently be readily available to vehicle owners and all motor vehicle service industry
sectors; it is determined that it is necessary to enact legislation that will assure that such accurate
diagnostic service and repair information be readily available, so that the safety of the public in
Massachusetts is protected and so that the public can be assured of obtaining safe and affordable
diagnosis, service, and repair of their motor vehicles, and it is the purpose of this Act so to do.
SECTION 2. The General Laws are hereby amended, by inserting after Chapter 93I thereof the
following Chapter: --
Chapter 93J. Motor Vehicle Diagnostic, Repair and Service Information
Section 1. Definitions. The following words and phrases, as used in this chapter, unless
the text otherwise requires or a different meaning is specifically required, shall mean--
(a) “New vehicle manufacturer” or “original equipment manufacturer” or “OEM”, a
business that manufactures or builds new motor vehicles and then distributes such motor vehicles
through dealers that they authorize to lease and / or sell the motor vehicles at retail.
(b) “Dealer”, a business authorized by a new vehicle manufacturer to lease and / or sell
the manufacturer’s new motor vehicles at retail, and which is engaged in the diagnosis, service,
maintenance, or repair of motor vehicles or motor vehicle engines.
( c) “Independent motor vehicle repair facility”, a business that is not a dealer and which
is engaged in the diagnosis, service, maintenance, or repair of motor vehicles or motor vehicle
engines.
( d) “The aftermarket”, independent motor vehicle repair facilities, used car dealers, and
third party suppliers of motor vehicle repair related information and technology, including, but
not limited to, businesses providing diagnostic, service and repair information for motor
vehicles, information service providers, Internet based services, aftermarket scan tool providers,
and technical telephone support services.
(e) “Firmware”, instructions that are stored in electronic device memory, used to control
the electronic device, without which such device would not function. “Firmware” includes, but is
not limited to, an embedded instruction set to control the operation of logical hardware found in
motor vehicle monitoring and /or control systems.
(f) “Application software”, software that is loaded onto computers and electronic devices,
utilized to perform tasks for the users of the computers or devices, including, but not limited to
word processing, database, spreadsheet, and diagnostic programs.
(g) “Software”, programs and applications for a computer or other electronic device, and
programs and applications that can be run on a computer system or other electronic device
system, including, but not limited to, operating systems, firmware, and application software.
(h) “Vehicle data”, the set of data that a motor vehicle’s computer and / or electronic
device systems and firmware or application software records or produces, including, but not
limited to, a live data stream, diagnostic trouble codes (DTC), computerized self-test results, bidirectional
operation, global positioning system (GPS) location, all malfunction indicator lamp
(MIL) or check engine light status, stored memory data and adaptive memory data, any or all of
which are transmitted through the vehicle’s computers, electronic devices, and communication
network or BUS or any additional or emerging technology.
(i) “Interactive monitoring service” means a service that a vehicle lessee or owner utilizes
to remotely monitor the vehicle, including. but not limited to, services for determining motor
vehicle service intervals and maintenance requirements, for detecting defects by retrieving
diagnostic trouble codes, for retrieving vehicle identification numbers for reference, firmware or
software revision numbers or parts numbers, for global positioning system location, for air bag
status, for vehicle mileage, and for analyzing vehicle data or any other information indicating the
condition of the vehicle. “Interactive monitoring service” includes so-called OnStar and other
similar remote monitoring systems.
(j) ”Flash”, to embed or copy firmware or application software permanently onto an
electronically erasable and programmable read only memory (EEPROM) chip.
(k) “Proprietary”, pertaining to privately owned property or data, including knowledge or
data that is protected by a patent, copyright, or trademark.
(l) “Trade secret”, a
customers.
Section 2. Vehicle Component Ownership
Whenever a motor vehicle that has been manufactured or built by a new vehicle
manufacturer is leased or purchased from a dealer within the Commonwealth, or leased or
purchased from any dealer and then titled, registered or operated within the Commonwealth,
such lease or purchase shall constitute lease or purchase of a complete product from the original
equipment manufacturer (OEM) and from the dealer. The lease or purchase shall in all instances
include the engine, power train, frame, body, electrical system, mechanical and electronic control
systems and subsystems, computerized modules, communication network or BUS, and digital
computer code that make computerized modules perform specific functions. Except as otherwise
provided in this Chapter, such computer code and all software included with the vehicle or any
of its components shall be considered part of the vehicle and owned by the lessee or purchaser.
Notwithstanding anything else contained herein, the OEM research and development
process for creating vehicle components, including the process of creating firmware, may be a
trade secret which the OEM is not required to release or disclose to dealers, lessees, purchasers,
the aftermarket, or others.
Section 3. Vehicle Data Ownership.
For purposes of Section 2 of this Chapter, vehicle data shall be considered a component
of the vehicle. Upon lease or purchase of a new motor vehicle, all vehicle data which relates to
the way in which the vehicle lessee or owner operates the vehicle and the communication of the
data throughout the vehicle shall be property owned by the lessee or purchaser and not by the
OEM or dealer.
Section 4. Service and Repair Information.
(a) With the consent of a motor vehicle’s lessee or owner, dealers, motor vehicle
purchasers, and the aftermarket shall have the right to access all diagnostic, service and repair
information for a motor vehicle, the same referring to all information relating to items required
by an OEM as a condition of continuing a warranty for a new motor vehicle for a lessee or
purchaser, relating to appropriate diagnostics, service and repairs performed to keep a motor
vehicle warranty in force, relating to service, maintenance and parts that may allow a motor
vehicle lessee or owner to extend the life of a motor vehicle, and relating to or necessary for the
proper repair of a vehicle that suffers collision damage.
(b) Diagnostic, service and repair information for a motor vehicle shall include but not be
limited to (i) diagnostic trouble code (DTC) information, (ii) systems description and operations,
(iii) complete wiring diagrams, (iv) diagnostic procedures, (v) repair procedures, (vi) technician
training and materials, (vii) non part-producing related specifications, both mechanical and
electronic in nature, (viii) technical service bulletins (TSB), (ix) hot line technical support data,
(x) recalls, and (xi) firmware upgrades for enhanced vehicle operation.
(c) The process of developing diagnostic, service and repair information may be a
protected trade secret of a new vehicle manufacturer; and the diagnostic, service and repair
information itself may be proprietary to the OEM. Nevertheless, the motor vehicle lessee or
owner and the aftermarket shall in all instances have the right to access all diagnostic, service
and repair information. Diagnostic, service and repair information shall not be a trade secret of
the new vehicle manufacturer, and shall not be protected by a new vehicle manufacturer or dealer
in any manner that would create a competitive advantage for them.
(d) All diagnostic, service and repair information shall be disseminated to dealers,
vehicle lessees or owners, and the aftermarket in a nondiscriminatory manner by new vehicle
manufacturers. Diagnostic, service and repair information shall not be bundled to inflate
purchase prices or to require multiple purchases to acquire one complete set of diagnostic,
service and repair information by a vehicle lessee or owner or the aftermarket, or in any manner
to create a competitive advantage. Diagnostic, service and repair information disseminated by
new vehicle manufacturers shall be complete for the purposes for which it is to be utilized; no
additional reference material or device shall be needed to interpret the information.
Section 5. Vehicle Data Privacy.
A lessee or owner of a motor vehicle shall have a right to privacy with regard to vehicle
data. No OEM, dealer, or other entity shall have the right to access or collect vehicle data by way
of a motor vehicle’s communication BUS, either through wired or wireless means. Access to
vehicle data without the express written authorization of the vehicle lessee or owner is
prohibited, except in the case of an emergency when lives or safety of the public may be
endangered.
Section 6. Right to Access Vehicle Data.
With the authority of, and upon the request of, a motor vehicle’s lessee or owner, a
dealer, individual, or independent motor vehicle repair facility or other aftermarket entity shall
have the right to access all of a motor vehicle’s module functions and data in the vehicle’s
computer memory, firmware or software and transferred on the communication BUS. An OEM
or dealer is prohibited from restricting access to the vehicle data and communication BUS. Such
access shall include disclosure of research and development information, including but not
limited to firmware, software, data, memory, and BUS configurations to the aftermarket for the
purpose of developing tools to access the vehicle data by the aftermarket on behalf of a vehicle’s
lessee or owner.
Section 7. Interactive Monitoring Services.
(a) Whenever a motor vehicle is equipped for interactive monitoring, the vehicle lessee or
owner shall have the right to choose the form in which interactive monitoring vehicle data will
be sent and to whom it will be sent. An OEM or dealer shall not mandate that interactive
monitoring vehicle data be sent to an entity which it chooses, and may not prohibit a vehicle
lessee or owner from directing that the vehicle data be sent to a dealer, individual, aftermarket
facility, or other entity of the lessee’s or owner’s choice.
(b) Whenever a dealer leases or sells a motor vehicle equipped with an interactive
monitoring device, the dealer shall disclose in a separate writing at the time of the lease or sale,
in a clear and conspicuous manner, exactly what vehicle data may be transferred through the
interactive monitoring service, including, but not limited to, such data as GPS location, vehicle
speed, stored DTC, MIL status, or any other vehicle data or information on the vehicle
communication BUS. The lessee or purchaser shall in all instances be given the right to choose
what data is and is not to be monitored and transferred, and for what purposes.
(c) If a motor vehicle lessee or owner contracts with an interactive monitoring service
provider, such vehicle lessee or owner shall at all times have the right to change interactive
monitoring service providers, without penalty, upon written notice to the provider. Further, upon
written notice to the provider, the vehicle lessee or owner shall at all times have the right to
change the interactive monitoring service vehicle data that is being collected and to whom it is
sent or distributed.
Section 8. Software Installation.
(a) An OEM may install software in computers and / or electronic devices that are
component parts of new motor vehicles and continue to retain ownership of the motor vehicle’s
computer code and /or device code; provided, however, that the OEM and dealer must disclose
that the OEM is doing so at the time of new vehicle lease or purchase, and provided further that a
clearly identified and separate global End User’s License Agreement (EULA) must be entered
into with the lessee or purchaser at the time of lease or purchase.
(b) The EULA required by this section must allow the lessee or purchaser to transfer their
rights under the EULA upon transfer of the vehicle at no cost to the lessee or purchaser or to the
transferee and must disclose a good faith estimate of the applicable software life expectancy.
(c) All software installed by an OEM in a new motor vehicle shall be viable for the life
expectancy of the vehicle, or shall be replaced or upgraded by the OEM or dealer at a reasonable
cost when either defects are detected and repaired or when new enhancements become available
when the vehicle is out of warranty.
(d) An OEM or dealer cannot separately charge a motor vehicle lessee or purchaser for,
or separately lease to a motor vehicle purchaser or lessee, software installed by the OEM, and
cannot charge a separate service or maintenance fee for such software.
(e) If an OEM installs software in components of a new motor vehicle, it may not include
clocks, calendars or any other counter functions that cause either the software to cease to fully
function in any manner at a predetermined time or mileage.
(f) If a new motor vehicle is equipped with application software rather than firmware,
then only the application software itself shall be subject to this section; and, the vehicle data
created by the computerized module and application software shall at all times be owned by the
vehicle lessee or owner, to the same extent as if the vehicle were equipped with firmware.
Section 9. Module Programming.
(a) Firmware or application software that is not permanently embedded in a motor
vehicle’s computer or electronic device module shall be capable of being loaded to the module
through module reprogramming or flash process. Neither firmware nor the flash process shall be
considered a trade secret and software owned by the OEM shall not be treated as proprietary to
the OEM, provided that the applicable computer code is not decompiled.
(b) Every version of firmware and application software utilized or installed in a motor
vehicle shall have a unique, easily identifiable part number or product code and shall be available
for purchase and installation in the same manner as other replaceable components of the vehicle.
(c) Flash processes developed or utilized by an OEM shall not include a decompiling
process, and such flash processes are to be made readily available to dealers, independent repair
facilities and to aftermarket tool manufacturers for tool development.
Section 10. Security.
Digital security information related to a motor vehicle shall be proprietary to the vehicle
lessee or owner and not the OEM or dealer. A digital security code or information shall be issued
by an OEM to a lessee or purchaser of a new motor vehicle such as a secure personal
identification number. A digital security code shall also be issued by an OEM to a subsequent
lessee or owner of a vehicle upon satisfactory proof of identity and lease or ownership of the
vehicle.
Security codes may be obtained from an OEM or dealer by presenting a copy of the
vehicle lessee’s or owner’s driver’s license and vehicle registration or title. An independent
repair facility may also obtain security codes for a vehicle by presenting an additional letter of
request signed by the vehicle owner and duly notarized. The information will be provided in a
reasonable and useful format. The process of recoding security data is not to be kept as trade
secret and must be made available to the dealer, vehicle lessee or owner and the aftermarket.
The process of developing a vehicle’s security system shall be considered the OEM’s
trade secret and an OEM shall not be required to disclose such process to a dealer, motor vehicle
lessee or purchaser, or the aftermarket.
Section 11. Original Condition.
A motor vehicle lessee or owner shall at all times have the right to have a damaged or
defective motor vehicle diagnosed, serviced or repaired to its original condition. An OEM may
not discriminate in the manner of dissemination of any product or information to motor vehicle
lessees, owners, dealers, or the aftermarket, when such information is to be provided to support a
vehicle new car warranty, or for the purpose of restoring a damaged motor vehicle to original or
pre-accident condition. Such products and information shall include the sale of firmware or
software revisions to the aftermarket and the distribution of new and remanufactured parts by an
OEM to authorized new car dealers. Authorized new car dealers may not discriminate in the
manner of sale of new or remanufactured OEM parts to motor vehicle lessees or owners or to the
aftermarket.
Section 12. Regulatory Authority.
The executive office of consumer affairs and business regulation may issue regulations
for the enforcement and interpretation of this Chapter.
Notwithstanding any general or special law, or any rule or regulation to the contrary, the
office of consumer affairs and business regulation shall not promulgate any rule or regulation
that:
(a) Interferes with the authority of the Administrator of the United States Environmental
Protection Agency under section 202(m) of the Clean Air Act (42 U. S. C. 752 l(m)) with regard
to motor vehicle emissions control diagnostic systems; or
(b) Conflicts with any rule or regulation prescribed by the Administrator of the United
States Environmental Protection Agency under that Act.
Section 13. Penalties.
A new vehicle manufacturer that manufactures a motor vehicle that is leased, sold,
owned, registered, or operated in the Commonwealth, in addition to any other penalty provided
by law, shall be subject to a civil penalty of not more than $10,000.00 for the first offense and
not more than $20,000.00 for the second and each subsequent offense for any violation of the
provisions of this Chapter.
In the event that is an ongoing noncompliance with the provisions of this Chapter, a new vehicle
manufacturer shall be subject to a civil penalty of not more than $20,000.00 after each period of
sixty days of ongoing noncompliance.
The attorney general or the secretary of consumer affairs and business regulation may institute a
civil proceeding for enforcement of this Chapter, and may seek injunctive relief in addition to
any penalty being sought.
