10 August 2007
The Minnesota Supreme Court ordered the release of source code to an alcohol breath tester. The decision is heartening, but may not set a broad precedent.
The actual opinion makes it clear that the ruling is based on the facts of this specific case. In particular, the state's RFP for the devices required that Minnesota own the copyright to the source code:
All right, title, and interest in all copyrightable material which Contractor shall conceive or originate, either individually or jointly with others, and which arises out of the performance of this Contract, will be the property of the State and are by this Contract assigned to the State along with ownership of any and all copyrights in the copyrightable material[.] Contractor also agrees, upon the request of the State to execute all papers and perform all other acts necessary to assist the State to obtain and register copyrights on such materials. Where applicable, works of authorship created by Contractor for the State in performance of the Contract shall be considered "works for hire" as defined in the U.S. Copyright Act.Other states' contracts may not have a similar provision.
What's necessary is recognition of a fundamental right to such access. Minnesota's RFP did recognize that, and required that the contractor provide
information * * * including statement of all non-disclosure/non-reproduction agreements required to obtain information, fees and deposits required, to be used by attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence. This part of the contract to be activated with an order from the court with jurisdiction of the case and include a reduced fee schedule for defendants found by the court to be entitled to a publicly funded defense.That was likely an administrative inclusion, rather than a legislative one or a broad constitutional holding; still, it's a good start.
I congratulate the Minnesota officials who added those two provisions, especially the one requiring access for defense attorneys. I hope that all other jurisdictions will follow suit, and for all similar devices.
Update: Thinking further, it would seem that the Minnesota Attorney-General could get an injunction compelling the vendor to release the code. This is not a matter of balancing two rights — the defendant's right to information necessary for the criminal case versus the company's right to protect its trade secrets — it's a question of enforcing a contract the company agreed to.