By: Jee Soo Han

Have you ever gone to a McDonald’s for their signature McFlurry, only to be denied because the ice cream machine was broken, yet again? Having one’s McFlurry cravings thwarted is a comical universal experience that even spurred the creation of a website that gives live updates on the working status of every McDonald’s ice cream machine in the United States. Fortunately, those who seek the delightful snack in the future may not be so disappointed, thanks to the recent exemption granted by the U.S. Copyright Office that will allow ice cream machines to be fixed in a timelier manner.

Why are the ice cream machines always broken?

In 1998, Congress enacted the Digital Millenium Copyright Act (“DMCA”) to foster the growth of digital works by providing copyright owners with legal protections against unauthorized access to their works. Section 1201 of the DMCA prohibits circumventing any access controls, such as digital locks, on any copyrighted works. This prohibition includes accessing proprietary software encoded in retail machinery. That’s right: Section 1201 prohibits bypassing the digital lock to access the software operating the ice cream machines, despite being essential to the repair process.

The ice cream machines in most McDonald’s franchises are made by Taylor Company, a commercial food service equipment manufacturer that has been supplying McDonald’s with ice cream machines since 1956. Under Section 1201, only Taylor Company and associated contractors could repair broken McDonald’s ice cream machines, as they are the copyright owners of the underlying software and, therefore, the only party legally allowed to bypass the lock on the machines. Additionally, bypassing the lock itself is an ordeal that can only be done by “authorized technicians” or those with access to a “Taylor-approved diagnostic tool, or via an extended, undocumented combination of key presses,” according to the long comment submitted by the petitioners. This means that the information needed to bypass the machines’ digital locks is neither widely distributed nor available, and repairs can only be done by those with said information. McDonald’s has 13,449 locations in the United States, and Taylor is just one company. Doing the math, it’s easy to see how there could be significant delays in fixing the ice cream machines. 

There was a brief interlude in 2019 and 2020 when a startup called Kytch created a device that would unlock the Taylor ice cream machines to find and fix software issues. Kytch devices were a hit with franchisers looking to repair ice cream machines in a more efficient manner until November 2020, when McDonald’s sent an email warning franchise owners of a “human injury” hazard when using a Kytch device. After McDonald’s urged franchise owners to stop partnering with Kytch, the startup’s business dried up almost immediately, and consumers were left with ice cream machines that were still often inoperable. 

Enter: Section 1201 exemptions

Within Section 1201, a rulemaking process grants temporary exemptions to the prohibition against circumventing access controls. This process involves: (1) a petition arguing that the proposed exemption satisfies the necessary requirements; (2) a public comments and hearings period; (3) the Copyright Office’s review and recommendation of the exemption; and (4) a final rule issued by the Librarian of Congress in the Federal Register. 

To qualify for a temporary exemption, the petitioner must show that (1) the proposed exemption relates to a work protected by copyright law; (2) use of the work does not infringe copyright; (3) users must currently be or soon to be adversely affected in their ability to make such use; and (4) the protection measure indicated in Section 1201 must be the cause of such adverse effects. The Copyright Office reviews exemption requests and issues recommendations every three years. 

Public Knowledge, a public advocacy group, and iFixit, an e-commerce repair website, petitioned the U.S. Copyright Office for a temporary exemption to Section 1201, allowing circumvention of digital locks on commercial and industrial equipment to repair their software. The petitioners detailed how many commercial and industrial equipment, such as McDonald’s ice cream machines, have complex, frequently changing access codes that only allow specific users to get past them to repair the equipment. Despite the software fix being relatively simple after getting past the digital locks, Section 1201 prevents business and franchise owners from repairing their machinery in a timely and economical manner, which costs them much-needed business. The Federal Trade Commission (FTC) and Department of Justice also filed comments supporting this petition. 

After review, on October 25, 2024, the Copyright Office granted an exemption allowing users to circumvent digital locks to repair “retail-level food preparation equipment,” and the Library of Congress issued a corresponding rule soon thereafter.

What does this mean?

This new exemption means that third parties that are not Taylor Company can bypass digital locks to access the software in McDonald’s ice cream machines to repair them. In the era of sweet treats, this is not only a win for consumers, but also for businesses who can better serve customers with working machines. More retailers seeking independent repair services can stimulate third-party repair activities, and you might be able to finally treat yourself to that Oreo McFlurry the next time you crave one.

#copyright #DMCA #McDonalds