Manufacturers opposed the exemption, but it received support from the Department of Justice Antitrust Division, the Federal Trade Commission, and the National Telecommunications and Information Administration.
“The Register recommends 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 Register’s findings said.
The exemption does not include commercial and industrial food preparation devices. Unlike the retail-level equipment, the software-enabled industrial machines “may be very different in multiple aspects and proponents have not established a record of adverse effects with respect to industrial equipment,” the Register wrote.
Error codes unintuitive and often change
While ice cream machines aren’t the only devices affected, the Register’s recommendations note that “proponents primarily relied on an example of a frequently broken soft-serve ice cream machine used in a restaurant to illustrate the adverse effects on repair activities.”
Proponents said that fixing the Taylor Company ice cream machines used at McDonald’s required users to interpret “unintuitive” error codes. Some error codes are listed in the user manual, but these manuals were said to be “often outdated and incomplete” because error codes could change with each firmware update.
Difficulties in repair related to “technological protection measures,” or TPMs, were described as follows:
Moreover, other error codes can only be accessed by reading a service manual that is made available only to authorized technicians or through a “TPM-locked on-device service menu.” This service menu can only be accessed by using a manufacturer-approved diagnostic tool or through an “extended, undocumented combination of key presses.” However, “it is unclear whether the 16-press key sequence… still works, or has been changed in subsequent firmware updates.” Proponents accordingly asserted that many users are unable to diagnose and repair the machine without circumventing the machine’s TPM to access the service menu software, resulting in significant financial harm from lost revenue.
The Register said it’s clear that “diagnosis of the soft-serve machine’s error codes for purposes of repair can often only be done by accessing software on the machine that is protected by TPMs (which require a passcode or proprietary diagnostic tool to unlock),” and that “the threat of litigation from circumventing them inhibits users from engaging in repair-related activities.”