The FTC and DOJ Call for Ice Cream Machine Repair
Right to Repair

The FTC and DOJ Call for Ice Cream Machine Repair

McDonald’s ice cream machines are always broken. 12% of the machines across the US are currently down. Back in August, we took one apart—we found they’re not bad to repair mechanically, but thanks to an arcane copyright law, McDonald’s franchisees struggle to read and clear the diagnostic codes in their machines. 

That’s why we asked the Copyright Office to exempt commercial and industrial equipment from the Digital Millennium Copyright Act (DMCA). 

Today, two US federal agencies, the Federal Trade Commission (FTC) and the Department of Justice (DOJ), submitted comments in support of our request. 

How Does the DMCA Restrict Repair?

The DMCA was written in 1998 to address the rising issue of piracy: People who made money on recorded music, movies, and television asked Congress to help them stem the rising tide of torrenting, CD copying, and MP3 sharing. Their answer? A law that made it illegal to get around any software restriction on the functioning of an electronic device. These restrictions, called technological protection measures (TPMs), were initially implemented in CD and DVD players to prevent copying a disc or removing region-lock protections.

But increasingly, manufacturers have used TPMs as a barrier to repair. Xbox and PlayStation optical drives, for instance, are paired to the motherboard, making repair 10x as expensive as it should be. John Deere tractors keep repair of many sensors, pumps, and other components behind digital locks.

Every three years, we’ve asked the Copyright Office for permission to break TPMs for the purposes of repair. They’ve granted almost every exemption request we’ve filed.

In the last few years, we’ve started hearing that the exact same problem exists for people who want to repair other electronics: We’ve heard from McDonald’s franchisees, people running server farms, people using Sennebogen and Caterpillar heavy construction equipment, and people who run factory equipment on programmable logic controllers. 

They’ve got similar complaints. They want to be able to read diagnostic codes. They want to be able to reset default passwords. They’re tired of having to wait for manufacturers to send out an official repair technician, when they could easily solve their problems in-house.

The FTC and DOJ have a pretty good summary of the problem in their comments:

Ultimately, by limiting access to data and software functionality necessary for independent repair and maintenance, TPMs can be used to squash competition for replacement parts, repair, and maintenance, thus ultimately limiting consumer choice. 

– The FTC and DOJ in their joint comment today

Mic drop. That’s exactly it.

Why Do the FTC and DOJ Care about Right to Repair?

The FTC exists to protect consumers and accordingly has been a strong ally in the fight for the Right to Repair. They conducted a three-year investigation into manufacturers’ concerns about opening up repair ecosystems and concluded that “there is scant evidence to support manufacturers’ justifications for repair restrictions.” In response, they adopted a bipartisan enforcement policy in favor of protecting the Right to Repair. A Biden executive order called on them to “limit powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs—such as when tractor companies block farmers from repairing their own tractors.”

Since then, they’ve taken action against Harley-Davidson, Weber grills, and Westinghouse power equipment for illegally conditioning their warranties on manufacturer-authorized repair parts and service. They also testified before the California state senate on behalf of the Right to Repair bill that passed last year.

We recently asked via a petition for rulemaking that the FTC create some new rules addressing Right to Repair issues, so that they can take even more impactful action. Meanwhile, Colorado’s legislature just passed a joint resolution calling on the FTC to stand up an agency for doing repairability scoring.

The DOJ has been less deeply involved in the Right to Repair fight, but they did release a filing last year in support of the farmers in Illinois who are suing John Deere for repair restrictions. The Antitrust Division of the DOJ, which weighed in today, doggedly pursues violations of antitrust laws like the Sherman and Clayton Acts. Fighting repair monopolies is well within their purview.

Pre-1978 copyright catalogs at the US Copyright Office, still housed on index cards. Image: Public domain, Wikimedia

What Does the Report Say?

The 18-page joint report lays out the case for open repair markets: Less-expensive repair thanks to competition. More entrepreneurship. Better access to repair, particularly for rural communities. 

Ultimately, they call on the Copyright Office to grant the new exemptions we’ve requested and renew the old ones. 

“Today, the Department of Justice and Federal Trade Commission stood up not just for tasty frozen treats, but for the right of small businesses to repair and maintain the equipment they’ve paid for,” said Meredith Rose, Senior Policy Counsel at Public Knowledge, who penned the longform example-rich request to the Copyright Office. “Not only did they vocally and unreservedly support both repair petitions currently before the Copyright Office, but also noted that the benefits would extend well beyond the specific technologies listed in our petition.”

iFixit CEO Kyle Wiens was also enthusiastic: “Copyright law isn’t supposed to get in the way of ice cream, and today the FTC and DOJ voted today in favor of frozen goodness for all. Americans everywhere want to be able fix our stuff, and we hope the Copyright Office will join these other federal agencies in recognizing the importance of pushing back against repair monopolies.”

Next Steps

Written comments in support of the proposed exemptions are due by March 19, 2024. The Copyright Office will then hold public hearings about the exemptions April 15–19. We expect the final ruling to be released sometime in the fall. 

While we’re waiting, get involved with a Right to Repair advocacy group near you.