Apparently code really is law or rather code matters to the law. CNET reports that CMI which makes breathalyzers refuses to give a client, the State of Minnesota, the code for one of its units. The defendant wants the source code and the court has rejected the state’s position “that the state was not entitled to the code because of its confidential, copyrighted and proprietary nature.†The court ruled that under the contract the code belonged by extension to the state. Now here is the fun part, CMI has a history of not turning over its code to other states. If it does not do so here, the defendant should be able to have the charge of driving with a blood alcohol level of .08 thrown out. As the article notes, there around 38,000 such tests at issue in Minnesota and they too would likely be thrown out.
There is also a curious point: the report claims that CMI competitors routinely make the code available for the competitive edge in these situations. So one might think that Minnesota just chose poorly especially given that CMI has apparently behaved this way at least one time more than a year ago. But if the court is correct about the contract, it seems CMI is another example of knee-jerk claims regarding the need to maintain double secret probation for any piece of intellectual property even after a company apparently signs a contract indicating that its client in fact has some ownership of the IP in question. Thus another question arises: Why isn’t the state seeking an order requiring the code be given? Indeed, it seems that the state should make two moves. First, in the short term seek a protective order to defeat the CMI claims of loss of trade secret etc. and prevent the possible loss of the immediate case not to mention the potential for the quick move for dismissal by all the other 38,000 defendants. Second, as a long term strategy issue, sue CMI for breach of contract, go after whatever damages one could claim for the potential loss of 38,000 cases and the purchase of the devices, and last go to a competitor who realizes that the law needs the code.
Cross posted at Concurring Opinions.