Copyright decision is a win for milkshake lovers and the right to repair
Missing out on Oreo McFlurries prompted attorney Meredith Rose to petition the U.S. Copyright Office for an exemption to let McDonald's restaurants repair their soft-serve machines. (Photo by TippyTortue/Shutterstock)
Meredith Rose’s children wanted ice cream on the long drive to her parents’ house for Thanksgiving last year, so she stopped at a McDonald’s and ordered an Oreo McFlurry.
A few minutes later, the attorney from Rockville, Maryland, learned that the restaurant’s ice cream machine was broken.
That disappointing moment for her children—something Americans nationwide have experienced—motivated Rose to fight for a legal exemption that could lead to more functioning ice cream machines at the world’s largest fast-food chain, she said.
At that time, it was illegal for anyone other than the machines’ manufacturer, the Taylor Company, to repair the copyrighted devices, which include access codes that only the manufacturer typically knows. But Rose and her colleagues had recently begun petitioning the U.S. Copyright Office for an exemption to federal law, arguing that copyright shouldn’t apply to repairs.
The Library of Congress—which houses the Copyright Office—agreed, ruling last week that any technician can repair some commercial food preparation equipment, including the McDonald’s ice cream machines. The decision could decrease the amount of time McDonald’s restaurants have to wait for an expert to fix the devices, Rose said.
“It makes it easier for restaurants to be able to call in a third-party repair tech to fix their stuff,” Rose told The Washington Post, “rather than having to wait on an official dispatch by the manufacturer.”
Jokes and memes about broken McFlurry and soft-serve machines have been staples of pop culture for years, and there’s even a popular website that tracks where the devices are out of order.
The 1998 Digital Millennium Copyright Act prevented third-party technicians from repairing some machines. Public Knowledge, a nonprofit that Rose works for that says it aims to “shape policy on behalf of the public interest,” and iFixit, a website that helps people repair electronics, petitioned for an exemption in summer 2023.
That summer, iFixit bought a McDonald’s ice cream machine on eBay and broke it apart to find pieces inside that most technicians could fix, said Elizabeth Chamberlain, iFixit’s director of sustainability. The groups’ petition received support from the Justice Department and the Federal Trade Commission.
On Oct. 18, the Copyright Office said in a report that some machines, like McDonald’s ice cream devices, could only be fixed by knowing their error codes, which often are only accessible by the manufacturer.
Shira Perlmutter, the Copyright Office’s director, wrote that restaurants might be “adversely affected” by the law, including financially. She recommended an exemption that allowed more flexibility in “diagnosis, maintenance, and repair of retail-level commercial food preparation equipment.”
Librarian of Congress Carla Hayden approved the recommendation, which took effect Monday.
Technicians can now use their own software to bypass the Taylor Company’s restrictions, Chamberlain said. Rose said such software could become more common now that legal barriers have been lifted.
But Darcy Bretz, a spokeswoman for the Illinois-based Taylor Company, wrote in an email to The Post that she doesn’t expect the organization’s business to change. Many of the company’s clients use third-party technicians without pushback from the company, Bretz said.
“Our customers already have many different choices and flexibility on how they may choose to maintain or repair Taylor equipment,” Bretz said.
McDonald’s did not respond to a request for comment Thursday night.
Advocates for the exemption said the law was a crucial reason some ice cream machines weren’t quickly fixed. McDonald’s even joked about its troubles in 2020, writing on X: “we have a joke about our soft serve machine but we’re worried it won’t work.” A broken ice cream machine even prompted a fight between an employee and customers in Daytona Beach, Florida, in 2017.
The malfunctions have also led to a lawsuit. Kytch, a company that creates devices to help ice cream machines run more effectively, alleged in 2022 that it sold its product to McDonald’s—only for the fast-food chain to tell other companies to eschew the product.
And Republican presidential nominee Donald Trump used the machines for campaigning, writing on X on Saturday: “WHEN I’M PRESIDENT THE MCDONALD’S ICE CREAM MACHINES WILL WORK GREAT AGAIN!”
After learning on Friday that the exemption was approved, Rose, 38, said she bought an M&M McFlurry at a McDonald’s in Rockville. There were no issues with the machine, she said, and she hoped that would be commonplace going forward.
She said in a statement that day: “Today’s recommendations are a victory for everyone: franchise owners, independent repair shops, and anyone who’s had to bribe their kids with a chilly treat on lengthy road trips.”
