A pair of federal governing bodies is advocating for broader exemptions for industrial and commercial repairs that involve tinkering with copyrighted software—a reform that would make it legal for McDonald’s franchise owners to independently fix their chronically broken ice cream machines.
The Federal Trade Commission and the U.S. Department of Justice’s anti-trust division are seeking to expand an exemption to a copyright law, so that business owners would be allowed to fix “commercial and industrial equipment” themselves or go to a third-party repair shop, rather than having to rely on officially authorized repairmen.
Exemptions to Section 1201 are issued every three years, when the Copyright Office determines what kind of repairs and third-party tools are and aren’t lawful. For example, in 2021, the Copyright Office granted jailbreaking exceptions for video streaming devices like the Apple TV, but only allowed video game console owners to repair the device’s optical drives.
“In the Agencies’ view, renewing and expanding repair-related exemptions would promote competition in markets for replacement parts, repair, and maintenance services, as well as facilitate competition in markets for repairable products,” the FTC-DOJ joint comment stated.
A DMCA exemption will not only promote competition in the repair market, the agencies argued, but will also save money for consumers and make their purchase a better investment.
Citing a petition filed by popular repair parts vendor iFixit and advocacy group Public Knowledge, the agencies said the inability to perform independent repairs can lead to hundreds or thousands of dollars in lost sales. The average estimated cost of “unplanned manufacturing downtime” was $260,000 per hour. Meanwhile, for soft serve machines, breakdowns can lead to $625 in lost sales each day the owner has to wait around for an authorized technician to come.
“Eliminating repair restrictions can lower the cost of repairs, improve access to repair services, and minimize costly and inconvenient delays,” the agencies said. “Unnecessary repair restrictions have the opposite effect. They can reduce consumer choice, raise repair costs, and drive independent repair shops out of business by denying them access to key inputs.”
However, after a California-based tech firm, Kytch, built a gadget that can intercept the error messages to help owners better troubleshoot McFlurry machines, McDonald’s in 2020 sent warnings to every franchisee, telling them to immediately stop using Kytch devices.
In 2022, Kytch sued McDonald’s, seeking $900 million in damages. It also sued Taylor, alleging that the freezer maker obtained one of Kytch’s devices and reverse-engineered it to create its own troubleshooting assistant. Taylor responded to the lawsuit by claiming that using the Kytch product could “cause serious human injury.”
The Kytch cases, which are still pending, came amid an FTC investigation into complaints by McDonald’s franchise owners who claimed they were losing business due to not being allowed to independently fix McFlurry machines that kept on breaking down.
Taylor has defended its machinery in response to complaints, saying that there was a “lack of knowledge about the equipment and how they operate in the restaurants.”
When working with dairy products, the company said, “you have to make sure the machine is cleaned properly. The machines are built up with a lot of interconnecting parts that have to operate in a complex environment and manner.”
