The Federal Trade Commission and the Department of Justice’s antitrust division filed a comment with the US Copyright Office asking for an expanded exemption to copyright law for the right to repair certain devices. The comment was submitted on Thursday, amid the Copyright Office’s deliberations over whether to issue new exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA), a law that prohibits breaking software copy protection. Under Section 1201, repairing your own devices can often become a copyright violation.
Exemptions to DMCA Section 1201 are issued every three years, as per the Register of Copyrights’ recommendation. Prior exemptions have been issued for jailbreaking cellphones and repairing certain parts of video game consoles. The FTC and DOJ are asking the Copyright Office to go a step further, extending the right to repair to “commercial and industrial equipment.” The comment singles out four distinct categories that would benefit from DMCA exemptions: commercial soft serve machines; proprietary diagnostic kits; programmable logic controllers; and enterprise IT.
“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 comment reads.
The inability to do third-party repairs on these products not only limits competition, the agencies say, but also makes repairs more costly and can lead to hundreds or thousands of dollars in lost sales. Certain logic controllers have to be discarded and replaced if they break or if the passwords for them get lost. The average estimated cost of “unplanned manufacturing downtime” was $260,000 per hour, the comment notes, citing research from Public Knowledge and iFixit. As for soft serve machines, breakdowns can lead to $625 in lost sales each day. Business owners can’t legally fix them on their own or hire an independent technician to do so, meaning they have to wait around for an authorized technician — which, the comment says, usually takes around 90 days.
Last August, iFixit performed a teardown on the exact ice cream machine model McDonald’s uses. The machine let out multiple “nonsensical, counterintuitive, and seemingly random” error codes, but there was nothing to be done — not because it was unfixable but because the law prohibits anyone but Taylor, the manufacturer, from fixing the machines. After a third-party company, Kytch, built a product that can read the error codes, McDonald’s told its franchise owners not to use it.
If the Copyright Office decides to listen to the FTC and DOJ, that could all change. For now, though, the odds the ice cream machine at your local McDonald’s is broken are still pretty high.
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