Historical Review of Federal Source Code Litigation: Minnesota Intends to Bury Source Code

Posted On April 27, 2009 by Charles Ramsay

Last month marked the first anniversary of Minnesota's lawsuit against CMI, the manufacturer of the Intoxilyzer 5000. After the Minnesota Attorney General filed suit â?? I filed a motion to intervene to ensure the AG's intentions were in our best interests. I said,

"We fear the attorney general will get the software but will only be able to turn it over under conditions that preclude a meaningful opportunity to examine it.|

|Motion to Intervene Filed in Intoxilyzer Case|, Minnesota Lawyer, July 25, 2008.

My comments were prophetic.

Two months later the AG and CMI announced they had settled the matter. The Minnesota Commissioner of Public Safety announced it had solved the problem. He proclaimed to have secured the means for drivers to inspect the source code while, at the same time, freeing the courts, prosecutors and law enforcement from having to deal with the issue.

The agreement was labeled |Consent Decree and Permanent Injunction.| While it may have ridded the government of the burden of dealing with the vindicating citizens' rights, it did not solve drivers' need for access to the source code. It thwarted it. The agreement would have limited citizens' access to the software to such an extent that it would be impossible for a defense expert to inspect the software.

Fortunately, Judge Frank permitted us to intervene in the suit. He noted that in this rare case, the state attorney general is not adequately representing the interests of Minnesota citizens. He permitted the parties (including the newly added Plaintiffs-Intervener) and other concerned groups to submit written arguments and make oral arguments.

In February Judge Frank nixed the settlement. He wrote,

In particular, the Court cannot clued that the parties' proposed mechanism for permitting access to the Source Code serves the public interest and makes the Source code |readily and reasonably available.|

In another order the judge described the AG's position as a |moving target.|


The state averred in its Complaint that it is the sole owners of the source code for Minnesota's Intoxilyzer breath test machines. For example, in its request for its relief, it asked the federal court for an order, |Declaring that pursuant to the U.S. Copyright Act, the State of Minnesota is the sole owner of any and all copyrights to the source code for the Minnesota model of the Intoxilyzer 5000. Complaint, Prayer for Relief, I (emphasis added).

In an apparent |about face|, the state this month told CMI it was not claiming to be the sole owner of the software.

As a result of our conversation yesterday, the State wishes to clarify its position regarding ownership of the source code. The State does not allege that it owns the entire source code for the Intoxilyzer 5000EN instruments sold to the State. In this lawsuit, the State is seeking, inter alia, a declaration that the State owns the portion of the source code created for the State.

Letter from Assistant Minnesota Attorney General to CMI's Local Counsel, dated April 14, 2009.

What is Minnesota afraid of? In future postings I give hard evidence to show what it could be.

Coming in future blogs:

1. Bad Breath: Minnesota Makes is a Crime!

2. What does the state have to hide? See never before seen Emails between Minnesota and CMI:

a. CMI's Warning: Don't use this software! We didn't do QA or QC checks.

b. BCA: We know the software has problems, but we'll fix them later.

c. Information about disabling a critical scientific safeguardâ?? the ambient fail.

3. |Smoking Gun| email revisited: Debunking the BCA's responsive affidavit.

4. |Inferno| email: Despite Proof of broken software, Minnesota refuses to fix breath test.