FTC and DOJ Weigh in On McFlurry Ice Cream Debacle
The DOJ and FTC offered support for a right to repair as the Copyright Office weighs a DMCA 1201 exemption for industrial equipment. Also: Amazon says it recycles its plastic. Airtags say otherwise.
This week, the Antitrust Division of the Department of Justice has joined the Federal Trade Commission weighing in on the right to repair McDonald's ice cream machines. Submitting comments to the U.S. Copyright Office, both are asking that these industrial-grade ice cream makers receive an exemption from a draconian Clinton-era copyright law.
Section 1201 of the Digital Millennium Copyright Act (DMCA) strictly prohibits anyone from bypassing the digital locks on machines, and makes no exemptions for so-called “fair use,” such as disabling software locks for the purposes of repair and maintenance. And while we might find it laughable that a copyright law written to stop VHS piracy is being used to restrict industrial food machinery, that’s the sad legacy of the DMCA and Congress’s unwillingness to update the law over the past 30 years. Today, anyone who breaks software-locks can still face jail time and/or hefty fines. That is unless the type of machine they’re working on wins an "exemption” from the law from the Librarian of Congress - obtained via a lengthy and expensive appeal process.
There have been numerous exemptions issued over the past decade - for everything from smart phones to video games to agricultural equipment. The exemption process happens every three years. As we reported back in December, the latest round includes a petition by Public Knowledge and iFixit to pull soft ice cream machines and a broader range of industrial equipment out of the archaic 1201 prison.
(Listen to our podcast with Kyle Wiens of iFixit about the petition for a DMCA 1201 exemption for industrial equipment.)
That’s why the FTC and DOJ are voicing their opinion now.
Bureaucrats like ice cream too
So why is the federal government interested in the woes of McDonald's franchise owners? Because it is not a coincidence that the McFlurry machines at McDonald's are always broken. It's actually by design, since there are allegations that, Taylor Machines, the maker of the McFlurry machines runs them at suboptimal settings—causing them to break more quickly. But it gets worse, because McDonalds workers are not allowed to bypass the software locks on these ice cream makers they can only have them fixed by the company's authorized repair services.
(Check out our post about the “repair” angle in the McDonald’s McFlurry saga.)
The real kicker is that because McDonalds operates as a franchise, there is no option for owners to take their businesses to other ice-cream manufacturers since the food needs to be consistent across stores. These business owners have their hands tied, and between the choice of expensive and frequent repairs to machines or tens of thousands of dollars in fines the choice becomes very simple: accept that McFlurry machines will always break and that there's little they can do about it.
This seemingly low-stakes example of a broken ice cream machine has much wider consequences. What would happen if you couldn't repair your car, or phone, or household appliances, or essential infrastructure without original manufacturers sending their repair technicians? In a nation that prides itself on "free markets" to create more efficient businesses, these tactics of using software to create monopolies on repair—making free and fair competition impossible. That is exactly why Kytch, a company that tried to create an alternative diagnostic tool for these machines, is suing Taylor for making it impossible for them to compete in the marketplace.
The FTC and DOJ’s comment urging an exemption for industrial equipment makes clear that both agencies see through the lies about copyright protection and cybersecurity that manufacturers use to justify their liberal use of software locks like “trusted platform modules” or TPMs in equipment.
“Although TPMs can serve the important function of protecting copyrighted works from theft and infringing uses, TPMs can also be used to prevent non-infringing ‘DIY’ or third-party repair…Ultimately, by limiting access to data and software functionality necessary for independent repair and maintenance, TPMs can be used to squash competition for replacement parts, repair, and maintenance, thus ultimately limiting consumer choice,” the FTC noted.
“Expanding the current exemption to include computer programs that control access to commercial and industrial equipment would open repair aftermarkets to competition. OEM lock-in reduces opportunities for service and repair aftermarkets and decreases incentives to innovate and compete on price,” the FTC and DOJ wrote in their comments.
While the support of these federal agencies is good news, there is a broader need for reform. Exemptions every three years is a snails pace, pointing to the huge upsides of rewriting 1201 with 21st century tech in mind. McFlurries are just the start, and more ice cream could be just the start of good news if policymakers make that change happen.
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