US Copyright Office “frees the McFlurry,” allowing repair of ice cream machines - Ars Technica

Soft-serve machines get a not-quite-parfait exemption to DMCA circumvention rule.

Consumer advocacy group Public Knowledge today hailed a decision by the US Copyright Office to "grant an exemption specifically allowing for repair of retail-level food preparation equipment—including soft serve ice cream machines similar to those available at McDonald's."

The group, which teamed with iFixit to request the exemption last year, said the government ruling will "free the McFlurry." Public Knowledge Senior Policy Counsel Meredith Rose called the decision a victory for "franchise owners, independent repair shops, and anyone who's had to bribe their kids with a chilly treat on lengthy road trips."

The change should "spark a flurry of third-party repair activity and enable businesses to better serve their customers," Rose said. "While we are disappointed that the Register recommended a narrower exemption than we had proposed, this does not soften our enthusiasm. We will continue to chip away at half-baked laws blocking the right to repair, sprinkling consumer victories as we go. Today's win may not be parfait, but it's still pretty sweet."

The final rule adopted by Librarian of Congress Carla Hayden was based on recommendations made by Shira Perlmutter, the register of copyrights and director of the US Copyright Office. The ruling came in the ninth triennial proceeding to determine exemptions under Section 1201 of the Digital Millennium Copyright Act. The process provides exemptions for the next three years to "the prohibition against circumvention of technological measures that effectively control access to copyrighted works."

As Public Knowledge notes, "Section 1201 of the DMCA makes it illegal to bypass a digital lock that protects a copyrighted work, such as a device's software, even when there is no copyright infringement." Public Knowledge and iFixit jointly petitioned for a repair exemption covering diagnosis, maintenance, and repair of commercial and industrial equipment.

Manufacturers opposed the exemption, but it received support from the Department of Justice Antitrust Division, the Federal Trade Commission, and the National Telecommunications and Information Administration.

"The Register recommends adopting a new exemption covering diagnosis, maintenance, and repair of retail-level commercial food preparation equipment because proponents sufficiently showed, by a preponderance of the evidence, adverse effects on the proposed noninfringing uses of such equipment," the Register's findings said.

The exemption does not include commercial and industrial food preparation devices. Unlike the retail-level equipment, the software-enabled industrial machines "may be very different in multiple aspects and proponents have not established a record of adverse effects with respect to industrial equipment," the Register wrote.

While ice cream machines aren't the only devices affected, the Register's recommendations note that "proponents primarily relied on an example of a frequently broken soft-serve ice cream machine used in a restaurant to illustrate the adverse effects on repair activities."

Proponents said that fixing the Taylor Company ice cream machines used at McDonald's required users to interpret "unintuitive" error codes. Some error codes are listed in the user manual, but these manuals were said to be "often outdated and incomplete" because error codes could change with each firmware update.

Difficulties in repair related to "technological protection measures," or TPMs, were described as follows:

Moreover, other error codes can only be accessed by reading a service manual that is made available only to authorized technicians or through a "TPM-locked on-device service menu." This service menu can only be accessed by using a manufacturer-approved diagnostic tool or through an "extended, undocumented combination of key presses." However, "it is unclear whether the 16-press key sequence... still works, or has been changed in subsequent firmware updates." Proponents accordingly asserted that many users are unable to diagnose and repair the machine without circumventing the machine's TPM to access the service menu software, resulting in significant financial harm from lost revenue.

The Register said it's clear that "diagnosis of the soft-serve machine's error codes for purposes of repair can often only be done by accessing software on the machine that is protected by TPMs (which require a passcode or proprietary diagnostic tool to unlock)," and that "the threat of litigation from circumventing them inhibits users from engaging in repair-related activities."

The Register found that repair of other food preparation equipment is similarly inhibited. "As with soft-serve machines, users of software-enabled ovens and refrigerators used in retail or restaurant settings are being inhibited from performing certain repairs by TPMs that block access to error codes. Accordingly, the Register finds that users of retail-level commercial food preparation equipment may be adversely affected by the prohibition against circumvention," the recommendation said.

The Register noted a lawsuit against McDonald's filed by Kytch, which sold a product to McDonald's restaurant owners to help them keep the ice cream machines running. Kytch sued McDonald's in 2022, alleging that the fast food chain and Taylor "joined forces to drive Kytch out of the marketplace." Kytch and McDonald's now say they are working on a settlement.

The Association of Home Appliance Manufacturers argued at a hearing that repair activities do not require the circumvention of TPMs because almost all of those repairs are mechanical in nature. More opposition came from the Entertainment Software Association, Motion Picture Association, and Recording Industry Association of America, which were collectively referred to in the Register's recommendations as Joint Creators I.

"During the hearing, Joint Creators I testified that 'it seems like the proponents' complaint about the Taylor [soft-serve] machines is that they display cryptic error codes and break a lot. But neither of those is a circumvention issue,'" the Register wrote. "Joint Creators I further noted that to the extent that proponents seek an exemption for a specific third-party circumvention device, trafficking in that device would be prohibited by the anti-trafficking provisions of section 1201."