Credit: BlueAzures/Shutterstock
McDonald’s ice cream machines are so often broken that it has evolved into a chronic subject of memes and ridicule. McDonald’s ice cream enthusiasts can utilize an online tracker, McBroken, to update them on the status of these machines before they get disappointed at another McDonald’s. However, this laughingstock of popular culture may soon be a memory of the past. On October 28, 2024, the U.S. Copyright Office granted a new exemption to copyright law that allows for “diagnoses, maintenance, and repairs of retail-level commercial food preparation equipment,” without infringing on copyrighted software installed on the machines.
McDonald’s is the most prominent victim on a long list of companies subjected to the previous copyright regime. Taking McDonald’s as an example, Taylor Company has been the exclusive supplier of ice cream machines to McDonald’s for over ninety years. When a franchisee opens a new McDonald’s, it is required to install a specific model of ice cream machines made by Taylor, which contains copyright-protected software and digital locks. When a machine is broken, only certified technicians from Taylor can diagnose and repair the machines; meanwhile, users or third-party technicians would need to circumvent the digital lock, which necessarily violates the copyright software under the old copyright law regime. Taylor’s repair service is both costly and time-consuming, so broken ice cream machines lay unfixed for months on end.
The Copyright Office’s 2024 Expansion of Section 1201 Exemptions
Section 1201 of the 1998 Digital Millennium Copyright Act (DMCA) makes it unlawful to “circumvent a technological measure that effectively controls access to a copyrighted work.” A user is not allowed to hack into the machine’s software, which the user rightfully owns, if the software contains copyrighted material. However, DMCA provides a number of permanent exceptions to the prohibition and allows the Register of Copyrights to recommend exemptions for certain classes of copyrightable works. As a result, the Librarian of Congress may adopt these recommendations, thereby temporarily codifying the exempted class into law. Here, computer programs that diagnose, maintain, and repair commercial food preparation equipment are circumvented, and the exempted class has been adopted temporarily.
The Register uses a four-factor test to determine whether a class is exemptible. First, the class must include some works that are protected by copyright. Second, the proposed use of the work must constitute non-infringing or “fair use” under Section 107 of the Copyright Act. Fair use is a copyright law doctrine that allows people to use copyrighted material without the copyright owner’s permission under certain conditions, such as quoting a book for a book review. Third, “the prohibition on circumventing access controls [must be] the cause of adverse effects.” Finally, the user of the work “must show that circumvention is necessary to avoid the alleged adverse effects.” Whether there are adverse effects depends on another four-factor test under Section 1201(a)(1)(C) of the Copyright Act.
In this case, proponents iFixit and Public Knowledge jointly submitted a petition for exemption. Both organizations argued that “diagnosis, maintenance and repair” constitute fair use and that “downtime caused by the user’s inability to perform the most basic diagnosis and repair resulted in significant, quantifiable financial harm for users of commercial industrial devices.” The Federal Trade Commission and Department of Justice supported the exemption in a comment to the Copyright Office, explaining that the expansion of repair-related uses promotes competition by creating markets for replacement parts and repair services. Therefore, the Register determined that users, like McDonald’s, should be allowed to service their own equipment to avoid financial losses caused by downtime.
Business Implications of Section 1201 Exemption Expansions
The recent expansion to Section 1201 exemptions will allow businesses like McDonald’s to maintain and repair equipment more efficiently. With the expansion, businesses will no longer be constrained to copyright limitations requiring the manufacturer to work exclusively on the businesses’ equipment and machines.
The new rule is also expected to impact repair and maintenance businesses like iFixit, educational institutions, libraries, archives, museums, accessibility services, security researchers, and individual and independent users. Further, the agricultural, automotive, consumer electronics, and healthcare industries are expected to see substantial changes as a result of the new rule. These are industries that routinely rely on equipment previously protected by copyrighted software, as seen in agricultural equipment, consumer electronics, and medical devices.
Expansions to Section 1201 exemptions are also a success for the Right to Repair movement, which aims to increase consumers’ access to repair services through state-level legislation. The changes to the DMCA will not only directly impact businesses, both manufacturers and users nationwide, but also indirectly benefit everyday consumers. Expanded access to equipment repair allows businesses to address mechanical failures more efficiently and gives consumers broader access to automotive and general repair services, enhancing overall consumer welfare.
Anticipated benefits of the recent changes to the DMCA are expected to affect businesses and consumers alike, heralding a new era of efficiency and self-sufficiency for businesses. While it is still unclear whether manufacturers will be negatively impacted, proponents of the law are hopeful that the changes may allow manufacturers to focus on manufacturing and enable businesses to better service their products and services for consumers. The reduction of the repair monopoly is also expected to increase competition and innovation in the repair market, which will likely benefit consumers and businesses alike.
Before you line up for your vanilla-flavored soft-serve ice cream at your nearest McDonald’s, just beware the new exemption has a hidden bug. The new exemption allows digital lock circumvention to diagnose and repair the equipment, but it remains illegal to sell or distribute tools to do so. Therefore, because of the high technical barrier, only large franchise operators with adequate in-house technical know-how can readily benefit from the new exemption. Mom-and-pop retail shops may still largely rely on technicians from the manufacturer to fix their broken ice cream machines. As with all things in life, progress comes in small steps.
*The views expressed in this article do not represent the views of Santa Clara University.