A new exemption to the Digital Millennium Copyright Act (DMCA) allows McDonald’s employees, franchise owners, and others to fix McDonald’s often out-of-order ice cream machines. Prior to this exemption, most McDonald’s ice cream machines could be fixed only by the copyright or license holder to the code embedded in the ice cream machines.
Background
Previously, it may have been a violation of United States copyright law for anyone who did not have the rights to the code to repair the machines; in other words, McDonald’s employees were likely prohibited from attempting to repair the machines if there was a malfunction or the machine broke, resulting in frustrated customers seeking a McDonald’s sweet treat. In fact, McDonald’s ice cream machines were a topic in this year’s presidential race and have spurred an online tracker so that consumers could know before making the trek whether their local McDonald’s ice cream machine was down.
DMCA Exemption
Now, the Copyright Office has adopted exemptions to the provisions of the DMCA that previously prohibited the circumvention of technological measures that control access to copyrighted works. Specifically, the Copyright Office determined that the “prohibition against circumvention of technology measures that effectively control access to copyrighted works set forth in 17 U.S.C. § 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses” of certain classes of copyrighted works. Those classes include:
- Motion pictures, including television shows and videos.
- Literary works, excluding computer programs and compilations that were compiled specifically for text and data mining purposes, distributed electronically.
- Literary works consisting of compilations of data generated by medical devices or by their personal corresponding monitoring systems.
- Computer programs that enable wireless devices, smartphones, smart televisions, land vehicles and marine vessels.
- Computer programs where circumvention is necessary to allow the diagnosis, maintenance, or repair of such device.
- Video games in the form of computer programs when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to enable gameplay.
For a complete list of the certain classes of copyrighted works and the specifics of the exemptions, please consult the rule found on the Federal Register’s website.
The Right to Repair Movement
The exemption comes as a win for the “Right to Repair” movement, which sought to push back against companies benefiting from the repairs made to their own products. Before the exemption, only those authorized to access or change the embedded digital codes via the copyrights were permitted to do so. Companies were thus incentivized to hold the copyrights so that not only would they profit from the initial sale of the product but also the subsequent repairs. Now, the new rule should enable the efficient and economic repair while also impacting other products, like smartphones and video games.
But, one supporter of the Right to Repair movement, iFixit, claims that while the new rule authorizes the repair of machines, the new rule does not authorize the distribution of tools necessary to do so. Elizabeth Chamberlain of iFixit.com wrote:
“It is still a crime for iFixit to sell a tool to fix ice cream machines, and that’s a real shame. The Copyright Office declined to extend similar protections to a wider class of commercial devices—meaning the ruling does not apply to things like heavy machinery, factory equipment, or even broader categories of restaurant hardware.”
What’s Next?
As the new rule takes effect, the interpretations and exemptions, as well as others to the DMCA, may change. For more information on how the new rule may impact you, your business, or your products, as well as other DMCA and intellectual property law, please contact Kyle D. Stroup (KDS@kjk.com or 216.736.7231).