Are McDonald's McFlurries a political issue?

The biggest McFlurry controversy used to be whether to add M&Ms or Oreos to the soft serve ice cream available at McDonald's franchises. Or — for our British readers — whether to add Smarties, Oreos, or Rolo (we opt for the latter here at Warranty Week).

Forgive us for reminiscing about the past, when you could walk into any McDonald's franchise and reasonably expect to be able to buy soft serve. These days, McDonald's ice cream machines are so frequently out of order that countless memes have emerged about the issue, and there's even a crowdsourced online tracker called McBroken that helps users find the few franchises with working soft serve machines.

In a recent Weekend Edition segment, NPR's Scott Simon aptly noted, "The McFlurry machines seem to be down so much, the question ought to be, when are they actually, you know, in service?"

But it's not neglectful franchises at fault for the widespread ice cream malfunctions. Instead, the culprit was the Digital Millennium Copyright Act, which "protects the code embedded in the ice cream machines," and "made it illegal for third parties, like McDonald’s employees and franchisee owners, to break the digital locks installed by manufacturers," according to Emma Bowman at NPR.

As stated by the Dentons US Intellectual Property & Technology Group, "the DMCA's anti-circumvention provisions made it illegal for businesses to bypass software locks embedded in their equipment, even for routine repairs. Equipment manufacturers used these digital locks, ostensibly protecting proprietary software, to prevent any unauthorized repairs — effectively requiring businesses to rely solely on manufacturer-authorized service providers."

But a new rule, which went into effect at the beginning of November, adopts "exemptions to the provision of the Digital Millennium Copyright Act ("DMCA") that prohibits circumvention of technological measures that control access to copyrighted works," as stated by the U.S. Copyright Office at the Library of Congress. The rule change will last for three years.

Even the United States' prominent political figures have weighed in on the Right to Repair issue this month. Bowman noted, "Two days before the law went into effect, former President Donald Trump posted a photograph on X of him at a McDonald's drive-thru, with a photoshopped President Biden holding an ice cream cone, alongside a promise: 'WHEN I’M PRESIDENT THE MCDONALD’S ICE CREAM MACHINES WILL WORK GREAT AGAIN!'"

However, it seems that the Biden administration beat him to it, with the rule exempting food preparation machines from the DMCA taking effect the day before the 2024 presidential election.

DMCA Rule Change: A Win for Right to Repair

According to the Library of Congress,

"Every three years, the Librarian of Congress, upon the recommendation of the Register of Copyrights, is authorized to adopt temporary exemptions, with respect to certain classes of copyrighted works, to remain in effect for the ensuing three-year period. Congress established this rulemaking as a 'fail-safe mechanism' to ensure that the prohibition on circumvention would not adversely affect the public’s ability to make lawful uses of copyrighted works, including activities protected by the fair use doctrine."

Later in that document, the Library of Congress states that two organizations, Public Knowledge, a nonprofit, and iFixit, an online repair website, "jointly petitioned for an expanded repair exemption that would permit circumvention for the purposes of diagnosis, maintenance, and repair of commercial and industrial equipment. The U.S. Department of Justice Antitrust Division and the Federal Trade Commission filed comments in support of the petition."

On the other hand, groups including Associated Equipment Distributors, Entertainment Software Association, Motion Picture Association, Recording Industry Association of America, Philips North America LLC, and the Association of Home Appliance Manufacturers opposed the rule change. The Library of Congress stated that these groups "primarily argued that the scope of the class was overly broad and unsupported by the record."

In the end, the Register of Copyrights recommended "adopting a new exemption covering diagnosis, maintenance, and repair of retail-level commercial food preparation equipment, because proponents sufficiently showed, by a preponderance of the evidence, adverse effects on the proposed noninfringing uses of such equipment." The exemption will also extend to certain medical devices.

However, the Register declined "to recommend an exemption for a broader class of software-enabled commercial and industrial devices, in the absence of a sufficient showing of adverse effects on the record presented in this rulemaking."

In other words, the Register of Copyrights was sufficiently convinced to change the rule related to the repair of retail-level commercial food preparation equipment, along with certain medical equipment, but refused to apply the change more broadly to all software-enabled commercial devices.

The Argument for the Right to Repair

The Dentons US Intellectual Property & Technology Group supported the DMCA rule change, and stated, "This development addresses critical challenges across multiple sectors where maintenance delays and restricted repair options have significantly impacted operations."

Proponents for the right to repair argue that "arbitrary software locks," as described by journalist Jason Koebler from 404 Media, such as those placed on the McFlurry machines, exist as a cash grab from manufacturers.

In conversation with Scott Simon, Koebler stated,

"We've seen over the last decade or so, manufacturers have realized that they can make a lot of money by monopolizing repair of their devices. So they make it very difficult to get into the diagnostic systems of these devices to find out what's going wrong. And so there's this thing called the Right to Repair movement that seeks to help the people who bought these devices fix their own things that they have legally bought. And part of that has been petitioning the Library of Congress for these Section 1201 exemptions."

Concurring with Koebler's sentiment, Gay Gordon-Byrne, executive director of The Repair Association, told NPR's Chloe Veltman that OEMs "are not in the business of fixing stuff. [...] They would rather your stuff falls apart and dies and you have to go back to the store."

And while ice cream machines are not essential to everyday life, Koebler noted that "the medical repair device exemption is a huge deal." He recounted:

"In the aftermath of the first wave of COVID in 2020, there were many, many hospitals who had ventilators that were broken. And, you know, hospitals often have their own trained repair people to fix medical devices. But they often were not able to fix ventilators because the manufacturers were overwhelmed by the number of ventilators that were broken because there were so many being used. And so you had hospitals that had to wait weeks or months in order to get an authorized repair person in."

Other Right to Repair Developments

While this recent rule change to the DMCA only affects food preparation and medical equipment for commercial use, there have been developments in the consumer right to repair space in recent years as well. Back in July 2021, President Biden signed an executive order that limited manufacturers' ability to restrict repairs to their products. This was followed by the Federal Trade Commission (FTC) issuing new guidance against repair restrictions, based on anti-trust law.

A major result of these mandates and recommendations was that Apple, Samsung, and Google have all started selling parts and tools for repairing their devices, specifically mobile phones, as well as providing diagnostic functions. Apple's Self Service Repair Store was rolled out in 2022, and enables consumers and independent repair shops to order parts and order Apple-authorized tools to fix iPhones.

At the state level, over 25 states have proposed right to repair bills so far. Veltman reported that one such bill, which has gained national notoriety, is New York's Digital Fair Repair Act, passed at the end of 2022, which "requires [OEMs] to make diagnostic and repair information for digital electronic parts and equipment available to independent repair providers and consumers if such parts and repair information are also available to OEM authorized repair providers and servicers."

However, the New York bill significantly narrowed in scope between its proposal and being signed into law. Veltman stated, "The New York bill [...] was originally meant to encompass everything from home appliances to farm equipment. By the time the state's governor signed it into law [in] late [2022], its scope had been reduced to just small consumer electronics.

So while there have been public "wins" for the right to repair movement in certain industries, such as consumer electronics and restaurant equipment, in recent years, the "wins" for the opposition have been protecting other industries, especially heavy equipment, from being subject to these new laws and regulations.

The Argument Against the Right to Repair

In relation to the New York right to repair bill, Veltman spoke to David Edmonson, "vice president of state policy and government relations for TechNet, a tech sector trade association that represents companies like Apple, Google and Toyota."

Edmonson stated:

"Our concerns are that the [right to repair] bills are going to mandate that manufacturers provide unvetted third parties with sensitive diagnostic information tools and parts, without requiring any of the critical consumer protections that are afforded by authorized repair networks, like training and competency certification."

In April, another industry advocacy group, the National Association of Manufacturers (NAM), argued to the U.S. Copyright Office that "exemptions from copyright protections would weaken manufacturers' intellectual property rights, do significant harm to their businesses, and potentially endanger consumers."

At the hearing, NAM Vice President of Domestic Policy Charles Crain asserted, "The basis of the so-called 'right to repair' movement hinges on the false notion that owners do not have the ability to repair their own equipment. The truth, however, is that the majority of [OEMs] already provide a wide range of resources and tools that allow users — and third-party repair businesses — to maintain, diagnose and repair products."

The NAM in particular often refers to the right to repair as the "so-called 'right-to-repair' movement," but doesn't clarify who does or does not use this term, nor offer any alternative names for the movement.

Crain continued, "These exemptions would undermine manufacturers' IP rights in service of right to repair," and "would expose proprietary information to public consumption and use, likely endangering consumers and allowing for unlawful modifications of government-mandated safety and emissions limits."

The Future of Right to Repair?

The DMCA rule exemption will last for three years. But the future of the right to repair for other manufacturing categories remains up in the air, especially as the United States transitions presidential administrations.

The right to repair bills proposed and passed across many states have mainly addressed mobile phones and personal devices, with some also addressing auto repairs. However, commercial farm equipment is likely the next big frontier of the right to repair movement, and the field where we'll see the staunchest opposition from industry groups.

Right now, farmers are not able to run diagnostic codes for their equipment — only manufacturer dealerships or qualified repair shops are able to run these diagnostics. Tractors, much like passenger and commercial vehicles, are now built with so many sensors and software-embedded parts that DIY repairs are much more complicated, and in many cases, now impossible.

Of course, tractor OEMs argue that only certified technicians should be able to repair equipment, especially if it is leased, as DIY repairs can pose risks to safety, re-sale value, and intellectual property. On the other hand, farmers don't always have the time to spare to transport their tractor a few hundred miles during peak season, and can't afford to miss a crucial day of work to bring the tractor to an authorized dealer mechanic.

It remains to be seen how president-elect Trump will treat the right to repair during his upcoming second term. He has voiced his support for working McFlurry machines, but has also voiced his support to manufacturer groups, including the NAM.

The right to repair will undeniably continue to have a profound impact on the warranty world, from consumer electronics, to medical equipment, to vehicles, to agricultural equipment. Let's see how a new head of the executive branch changes the tides of the increasingly popular right to repair movement across the United States.