Copyright Office Grants Exemption, Frees the McFlurry

Ever been the victim of the unique disappointment that befalls those who seek a McFlurry, but can’t get one because the machine is out of order? It’s become a sort of running joke in popular culture that the McFlurry machine at McDonald’s is always broken. But the let down is nothing to laugh about, especially when you’re trying to appease a road weary, ice-cream-craving child! Many people, perhaps including some of the readers of this article, have been wondering. Why is the McFlurry machine so often not working? Interestingly, the reason for the lack of repair is connected to the Digital Millennium Copyright Act (DMCA). 

See, there’s Section 1201 of the DMCA. It states that it’s unlawful to bypass any sort of digital lock that’s purpose is to protect copyrighted work. What’s that got to do with the ice cream at McDonald’s? Well, Section 1201 holds the answer. It makes it so that the McFlurry machine’s software is only serviceable by authorized repair persons. And this is regardless of the fact that if the software were to be bypassed, there actually wouldn’t even be any copyright infringement. 

McFlurry Letdown Due to Digital Millennium Copyright Act

Given the ever-evolving nature of technological advancement, the United States Copyright Office does process exemption requests. Once every three years, the exemption requests are reviewed. The Copyright Office’s recommendations to grant any exemptions to Section 1201 are issued to the Librarian of Congress. If approved by the Librarian of Congress, then those exemptions are in effect. The exemption request process is designed to establish three-year changes. Changes to “the prohibition against circumvention of technological measures that effectively control access to copyrighted works.” 

The latest partial exemption approval that “frees the McFlurry” was achieved by the joint efforts of Public Knowledge and iFixit. A consumer advocacy group and an e-commerce and how-to website. The Copyright Office’s decision states that they will “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 request took a year to reach approval. Librarian of Congress Carla Hayden adopted the rule. And she did so with the aid of recommendations offered by the Register of Copyrights and Director of the Copyright Office, Shira Perlmutter. 

Copyright Office Approves Exemption to Section 1201

Upon its proposal, the repair exemption was to apply to the repair, maintenance, and diagnosis of industrial and commercial equipment. Of course, the manufacturers of said equipment were in opposition to the exemption. Meanwhile, the National Telecommunications and Information Administration, the Federal Trade Commission, and the Department of Justice Antitrust Division all supported the repair exemption. There’s apparently a distinction. In that the exemption doesn’t include industrial food preparation devices or equipment – that which is outside the retail space. The Register specifically stated, “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 success of the push for the exemption was largely based on the evidence gleaned from out of order soft-serve ice cream machines. The Taylor Company is the company that owns the machines at McDonald’s. Reportedly, the error codes on those machines, which would indicate a need for repair, were “often outdated and incomplete” and/or “unintuitive.” Due to changes that would occur with any update to the firmware. These issues connected to repair were due to “technological protection measures,” also known as TPMs. The argument made by the proponents cited the inability to “diagnose and repair the machine.” Because the TPM blocked access to the machine’s software – which ends up resulting in a loss of revenue. Basically, “the threat of litigation from circumventing [the machine’s TPM to access the service menu software] inhibits users from engaging in repair-related activities.”

Third-Party Repair Companies Can Now Service Retail-Level Equipment

Was there more opposition to the retail-level machine exemption? Yes, there definitely was! The Association of Home Appliance Manufacturers stated that because the repairs would be mechanical, the exemption request is inaccurate. And, the Recording Industry Association of America, Motion Picture Association, and Entertainment Software Association, also offered strong opposition. At the hearing regarding the issue, these entities were referred to as “Joint Creators I.” Their testimony included the statement that“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.” In any event, the repair exemption was indeed approved. 

Following the exemption’s approval, McFlurry lovers may anticipate that the ice cream machines should be out of order less frequently. We may finally be living in that beautiful era where you can stop by a McDonald’s, grab the freezing cold treat you’ve been craving, with no issue, and continue on with your day, smiling. How’s that going to happen, exactly? The hope is that with the approved exemption by the Copyright Office, third-party repair companies will be able to repair Taylor Company and similar machines. Without fear of copyright infringement! And if those machines are being serviced more regularly by third-party repairers, customers can be better served overall. 

If you need legal counsel for any intellectual property matters, contact our team at Stockman & Poropat, PLLC today for a free initial consultation!