Manufacturers opposed the exemption, but it received support from the Justice Department's Antitrust Division, the Federal Trade Commission and the National Telecommunications and Information Administration.
“The Register recommends adopting a new exemption covering the diagnosis, maintenance, and repair of commercial retail food preparation equipment because proponents have demonstrated by a preponderance of the evidence sufficient adverse effects on the proposed non- infringing use of such equipment,” according to the Register's findings. said.
The exemption does not apply to commercial and industrial food preparation equipment. Unlike retail-level equipment, software-enabled industrial machines “can be very different in several respects and proponents have no data on adverse effects related to industrial equipment,” the Register wrote.
Error codes are not intuitive and change often
While ice cream machines are not the only affected appliances, the Register's recommendations note that “advocates primarily relied on an example of a frequently broken soft-serve machine used in a restaurant to illustrate the adverse impact on repair operations.”
Advocates said repairing the Taylor Company ice cream machines used at McDonald's required users to interpret “unintuitive” error codes. Some error codes are listed in the owner's manual, but these manuals are said to be “often outdated and incomplete” because error codes can change with each firmware update.
Difficulties in repair related to 'technological protection measures' or TPMs were described as follows:
Additionally, other error codes can only be accessed by reading a service manual made available only to authorized technicians or through a 'TPM locked service menu on the device'. This service menu can only be accessed through a manufacturer-approved diagnostic tool or through an “extensive, undocumented combination of keystrokes.” However, “it is unclear whether the 16-key key array still works, or has been changed in subsequent firmware updates.” Proponents accordingly claimed that many users are unable to diagnose and repair the machine without bypassing the machine's TPM to access the service menu software, resulting in significant financial damage from lost revenue.
The Register said it is clear that “diagnosing soft-serve machine error codes for the purpose of repair can often only be done by accessing software on the machine that is protected by TPMs (which require an access code or requires a proprietary diagnostic tool to unlock)” and that “the threat of lawsuits resulting from circumventing it deters users from engaging in repair-related activities.”
