Codes and the Law, 38,000 Potential DUI Charges May Be Dropped

blurred driving2.JPGApparently 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 Madisonian.net

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2 Responses

  1. If CMI competitors routinely make the code available, then why weren’t any of those other firms used in the first place? that’d be my argument.

    PS

  2. Deven says:

    Right. Minnesota may have made a poor choice or did not have good information. BUT the contract seems to take this issue into account. For all one knows, Minnesota brought the issue up, the contract (per the judge) gives Minnesota the code it needs, and now CMI might be ignoring the contract. To your point, maybe Minnesota never should have believed the deal. But giving the state some credit, they seem to have entered a contract that allowed them to have what they needed. If so and the price was better than others, great. But if Minnesota had other bidders (assuming others were bidding on the contract), and they offered essentially the same quality, price, and had a history of giving the code, Minnesota may have made a poor choice. Deals move fast and mistakes are made, but here it seems that at least the contract spoke to Minnesota’s concern.