What Does Copyright Have to Do With McFlurries?

If you follow copyright news, you’ve likely seen two separate stories repeatedly.

The first is how McDonald’s franchise owners can legally fix broken ice cream machines. The second is how the US Copyright Office (USCO) delivered a blow to video game preservation.

While the two stories sound very different, they’re actually the same story at their core. They both deal with the USCO’s triennial Digital Millennium Copyright Act (DMCA) rulemaking process, which concluded earlier this month.

As part of that process, the USCO approves and denies exemptions to the DMCA’s anti-circumvention rules.

While that makes some sense, it raises a simple question: What does copyright have to do with a broken ice cream machine?

To answer that, we must first go back to 1998 and understand the DMCA.

Understanding the DMCA

In 1998, Congress passed the Digital Millennium Copyright Act or DMCA. The act contained three separate parts, each dealing with a different area of copyright law.

1. Section 512: Section 512 is the notice-and-takedown regime. It’s the section most identified with the DMCA as it is the system rightsholders use to remove allegedly infringing materials from the web.
2. Section 1201: Section 1201 is the anti-circumvention provision. The section makes it illegal to circumvent technological protection measures (TPMs) or make or traffic in tools that circumvent such technologies.
3. Section 1202: Section 1202 makes removing or falsifying copyright management information (CMI) unlawful when inducing or concealing infringement. CMI includes information such as a work’s title, author, or other helpful information to identify its copyright status.

In this case, Section 1201 is the focus. In that section, Congress required the USCO to undergo a triennial rulemaking process to determine what acts of circumvention should be exempted. According to the USCO’s 1201 page, they completed this process nine times since 2000.

The process involves a public comment period followed by the Register of Copyrights’ recommendation. The recommendation is then turned into the final rule, which was published on October 28 this year.

This year’s final rule renewed eighteen previously granted exemptions and added three new ones. Among the new ones is an exemption for “Computer Programs—Repair of Commercial Industrial Equipment.”

That, in turn, is where the McDonald’s ice cream machine comes into play. Though it is far from the only machine impacted by his rule change, it has been the poster child for why it was needed.

McFlurries and Copyright

The broken McDonald’s ice cream machine is a meme unto itself. Competitors lampoon it, it’s tracked on sites like McBroken and turned into countless jokes.

While the reasons for the issue are complicated, one key reason is that McDonald’s franchises use a very specific machine created by a company named Taylor. That machine is infamously finicky and known for breaking for minor reasons.

However, diagnosing those reasons is complicated as the machine doesn’t provide clear guidance on what the issues are. Taylor’s agreement forbids the use of third-party repair people, so the only way to fix the machine is to call a Taylor technician. This can be both expensive and time-consuming.

Because of this, the machines have extended downtime, even for relatively simple repairs.

One company, Kytch, developed and released a dongle that allowed owners to conduct simple repairs on their machines. However, according to a lawsuit by Kytch, McDonald’s and Taylor joined forces to raise questions about the device’s legality and safety. This scared away customers and prompted Kytch to file an ongoing defamation lawsuit.

Kytch further alleges that Taylor and McDonald’s conspired to make their own version of the device and sell it to franchise owners.

While Kytch and McDonald’s never battled over copyright, Kytch’s device circumvented restrictions on machines meant to lock out all but authorized repair people from accessing the software. Under the DMCA, that could be a copyright violation in and of itself.

Now, the exemption has removed this copyright concern. While there may be other contract or warranty issues, there are no copyright issues with repairing it or other “retail-level commercial food preparation equipment” for at least the next three years.

It’s a significant win for restaurant owners, especially franchisees, who are often compelled to use one type of device.

Bottom Line

Ultimately, this exemplifies how one bad actor can necessitate a rule for everyone.

The McDonald’s/Taylor collusion on this issue was downright comical. The extent to which they went to protect one another and their business model is insane. It didn’t matter that both franchisees and customers were harmed.

It was ridiculous that the Federal Trade Commission and the Department of Justice asked the USCO to approve this exemption.

Though this ruling impacts all similar retail kitchen equipment, this was the use case on everyone’s mind.

This egregiousness likely played a crucial role in passing the exemption. As discussed above, video game archivists strongly argued for a limited exemption to share games for research. However, in addition to strong opposition, there wasn’t a compelling case of abuse like the McDonald’s ice cream machine.

In short, all the attention on the McDonald’s problem likely ensured the USCO would grant the exemption.

It’s something for petitioners to consider in 2027.