It is now legal to hack or otherwise bypass technical protection measures on McFlurry machines and other commercial food preparation machines in order to repair them thanks to a new rule issued by the Federal government. After a challenge it has also remained legal to circumvent manufacturer locks that prevent the repair of medical equipment. This is good news in several long-running yet somehow related sagas that has resulted in both a huge number of McDonald’s ice cream machines and a large number of medical devices being broken at any given moment and which often cannot be fixed without the help of their manufacturer due to arbitrary software locks that prevent McDonald’s stores and also hospitals from fixing the devices they own.
The new exemptions to Section 1201 of the Digital Millennium Copyright Act allows for the circumvention of DRM and software locks, which are often called “TPMs” or technical protection measures, on equipment made for “commercial food preparation when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device.” The exemption that allows for the circumvention of software locks on “a lawfully acquired medical device or system, and related data files, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device or system,” was also renewed, as were exemptions for farm equipment and a host of other devices.
If this sounds like an absurd state of affairs, it is. Manufacturers of everything from video game consoles to tractors to ventilators to ice cream machines, kitchen appliances, and trains have learned over the years that they can make a lot of money by putting digital rights management systems and technical protection measures on the hardware they make that do nothing besides preventing the people who buy their equipment from diagnosing and repairing the devices they’ve purchased. This has helped create many different but functionally related repair monopolies across all sorts of industries. The Section 1201 rulemaking process is a part of copyright law that allows the Library of Congress’s Copyright Office to make rules that essentially make it legal for repair professionals and device owners to find ways to hack the machines they’ve purchased for the purposes of repair.
I have covered the McFlurry issue many times over the years. Basically, a company named Taylor makes the soft-serve ice cream machine McDonald’s uses to make McFlurries. These break constantly, and Taylor has put embedded software lockout systems that prevent anyone besides “authorized” repair professionals from fixing them. In the interim, McDonald’s franchises have found ways to bypass these lockout codes. There is ongoing litigation in which a company called Kytch made a device that automated this process. iFixit and the digital rights group Public Knowledge petitioned the Library of Congress for this exemption, and Friday, it was granted.
In a document about its reasoning for new exemptions, the Copyright Office explained that the Kytch litigation and the untenable McFlurry situation ultimately led it to grant the exemption.
“The [office] is aware that the ‘issue [with broken soft-serve machines] is so widespread that it has become a news story in its own right,’” the office wrote. It “also notes that efforts to circumvent TPMs [technical protection measures] on soft-serve machines to repair them have resulted in at least one lawsuit. While the lawsuit involves the commercial distribution of a circumvention tool in violation of the DMCA anti-trafficking provisions, it indicates why, absent an exemption, users may be deterred from developing their own means of circumvention. The unrefuted record supports the conclusion 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 the threat of litigation from circumventing them inhibits users from engaging in repair-related activities.”
The office “finds that users of retail-level commercial food preparation equipment may be adversely affected by the prohibition against circumvention.”
In a phone call with reporters, Suzy Wilson, the associate register of copyrights at the Copyright Office, said that the office was swayed on commercial food equipment based on “specific examples of situations where someone sought to repair or diagnose the need for a repair in retail food establishments.”
“While one example was the one that made some press over the years about McDonald’s food equipment, we received other examples,” which included ovens that have lockout codes on them, she added.
Similarly, I have written about how trained technicians at hospitals have been prevented from making simple repairs and doing simple diagnostics on ventilators and other medical equipment, which has led to perfectly good equipment being kept out of commission for weeks or months at a time. Bypassing these technical protection measures was made legal in 2021, but medical device manufacturers launched an intense campaign to kill renewal of it this year. The Copyright Office was not swayed.
Unfortunately, the Copyright Office did not grant an exemption for all industrial equipment, which petitioners also asked for, so the commercial food equipment exemption will be limited to devices in restaurants.
Kyle Wiens, CEO of iFixit, who petitioned for several exemptions, and whose company did a teardown of the Taylor ice cream machine, told 404 Media that the new rules are a bit of a mixed bag because industrial equipment was left out, and because it does not legalize the sale of tools that would bypass software locks.
“This exemption is helpful, but what we really need is Congress to solve this problem and truly legalize repair,” he said.
"Here’s the catch: while it’s now legal to circumvent the digital locks on these machines, the ruling does not allow us to share or distribute the tools necessary to do so," he said. "This is a major limitation. Most franchise owners and independent repair shops won’t have the technical expertise to create their own unlocking tools from scratch, meaning that while the door to repair has been opened, few will be able to walk through it without significant difficulty. It is still a crime for iFixit to sell a tool to fix ice cream machines, and that’s a real shame."
"The ruling doesn’t change the fact that it’s still illegal to share or sell tools that bypass software locks," he added. "This leaves most of the repair work inaccessible to the average person, since the technical barriers remain high. Without these tools, this exemption is largely theoretical for many small businesses that don’t have in-house repair experts."
On the call with reporters, I asked Wilson if the Copyright Office supports the idea of repair legislation in Congress.
“Yes,” Wilson said. “We do support the consideration [by Congress] of a permanent exemption in areas where it’s dealing with computer software and repair.”
