The Federal Trade Commission (FTC) and the Department of Justice’s antitrust division have jointly submitted a comment to the US Copyright Office, urging for an expansion of exemptions to copyright law that would enable the repair of certain devices. This move comes amidst the Copyright Office’s ongoing deliberations regarding potential new exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits the circumvention of software copy protection. Under Section 1201, undertaking repairs on one’s own devices can often constitute a violation of copyright law.
Exemptions to DMCA Section 1201 are typically revisited every three years, based on recommendations from the Register of Copyrights. Previous exemptions have encompassed activities such as jailbreaking cellphones and repairing specific components of video game consoles. However, the FTC and DOJ are advocating for a broader scope, proposing an extension of the right to repair to encompass “commercial and industrial equipment.” Specifically, the comment highlights four distinct categories that could benefit from DMCA exemptions: commercial soft serve machines, proprietary diagnostic kits, programmable logic controllers, and enterprise IT systems.
According to the comment submitted by the agencies, renewing and expanding repair-related exemptions would foster competition in markets related to replacement parts, repair services, and maintenance, while also promoting competition in markets for repairable products.
The current limitations on third-party repairs for these products not only stifle competition, but also result in higher repair costs and significant financial losses for businesses. For instance, certain logic controllers must be replaced entirely if they malfunction or if their passwords are lost. Research cited in the comment, conducted by Public Knowledge and iFixit, indicates that the average estimated cost of “unplanned manufacturing downtime” stands at $260,000 per hour. Similarly, breakdowns in soft serve machines can result in daily sales losses amounting to $625. However, business owners are often unable to conduct repairs independently or hire independent technicians due to legal constraints, leading to prolonged wait times for authorized technicians, averaging around 90 days.
A notable example highlighted in the comment involves McDonald’s ice cream machines, which are subject to strict repair restrictions imposed by the manufacturer, Taylor. Despite efforts by third-party companies, such as Kytch, to develop products capable of diagnosing and addressing issues with the machines, franchise owners are prohibited from utilizing these solutions.
Should the Copyright Office heed the recommendations put forth by the FTC and DOJ, significant changes could be implemented. However, as of now, the prevalence of broken ice cream machines at local McDonald’s outlets remains a prevalent issue, pending potential regulatory adjustments.
