Janzen Ag Law

Please move your email subscription to the new Janzen Ag Law Blog

2016-04-10T13:56:00.001-04:00

Dear Subscriber to the Janzen Ag Law Blog:

Earlier this year, the Janzen Ag Law Blog moved to a new platform and can now be found at www.aglaw.us/janzenaglaw. You are receiving this update as an email subscriber to the original Janzen Ag Law Blog. Unfortunately, the new website requires you to resubmit your email address if you wish to continue to receive the Janzen Ag Law Blog articles in your inbox. I apologize for this inconvenience.

If you wish to continue receiving the Janzen Ag Law Blog articles in your inbox, please go to Janzen Ag Law Blog, scroll to the bottom of the page and input your name and email. You can also send me an email at janzen@aglaw.us and I can manually add you to the subscription list.

Thanks for reading!
Todd J. Janzen

This Blog Has Moved!

2016-01-01T17:52:00.003-05:00

Starting January 1, 2016, the Janzen Ag Law Blog is now part of the Janzen Agricultural Law LLC website. Please bookmark the blog's new location: www.aglaw.us/janzenaglaw.

Thank you for reading.
Todd Janzen

The Janzen Ag Law Blog 3.0

2015-12-12T15:46:00.002-05:00

Five years ago a friend suggested that I start “blogging” about the legal issues I was handling involving agriculture. She knew I grew up on a farm, that agriculture was my passion, and that I was working on a number of different agricultural legal matters. She told me farmers and ag industry professionals would enjoy reading about my experiences. I immediately responded with typical lawyer answers: I don't have time. No one will read it. There are too many ethical complications when lawyers blog.

Fortunately, I decided that these excuses were challenges that could be overcome. Why do good legal work if you cannot use your experiences to help others? So here I am today, five years later, and I can't imagine how my legal career would have evolved without having the Janzen Ag Law Blog. I'm happy to announce that the Janzen Ag Law blog is moving to a new platform as part of my decision to found a new law firm, Janzen Agricultural Law LLC. Before this site is moved, I thought it would be fun to take a look back and see how this blog has evolved over the years.

Janzen Ag Law Blog 1.0

When I started writing this blog, I wrote on a host of different issues affecting agriculture. My first post was "Why did I create this blog?" Subsequent posts addressed a myriad of issues, from hot button environmental topics to more basic case law reports on contract disputes. I was getting the hang of it.

My first blog header was a picture of me sitting on my dad's John Deere 4020, demonstrating that some lawyers really do know how to drive tractors.

Janzen Ag Law Blog 2.0

As I continued to write, I found that my readers frequently enjoyed topics involving agriculture and technology. For example, an ag drone article I wrote about how the EPA "might" use drones to search for Clean Water Act violations at feedlots really struck a nerve with cattle producers. My article was republished in a number of mainstream beef and dairy publications. Before I knew it, Congressmen were writing the EPA administrator to demand EPA stop the use of aerial surveillance of farms. Did my blog article set off this firestorm? I'll never know for sure, but I learned that the digital pen is a powerful tool.

My updated blog header reflected that my content had shifted to modern farming technology. Gone was the Deere 4020, replaced by a then current model John Deere 4-wheel drive. (Thanks Carnahan & Sons Farms!)

Janzen Ag Law 3.0

I eventually determined that writing about agriculture, technology, and the law was the most interesting to me and my readers. (I think this is because I was farm kid during the early Space Shuttle years, or perhaps because I grew up near the Kansas Cosmosphere.) Now my blog posts are nearly exclusively focused on the intersection between law, technology, and agriculture.

My interest in this area drove me to start my own law firm, Janzen Agricultural Law LLC, which, among other things, seeks to help the law adapt to new agricultural technology. Please bookmark my new Janzen Ag Law Blog page, as I will be moving this blog to a new platform on January 1, 2016. The new blog address is: http://www.aglaw.us/janzenaglaw/

As my loyal readers know, the Janzen Ag Law Blog allowed me to find my voice. For that, I am forever grateful.

By Todd Janzen
Janzen Agricultural Law LLC
Please bookmark www.aglaw.us.

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Reminder that this blog will be moving on January 1, 2016 to www.aglaw.us/janzenaglaw

Why I Created an Agricultural Law Firm

2015-11-30T07:47:00.002-05:00

Growing up on a farm taught me certain values—hard work, ingenuity, and independence. Hard work means you stay in the field until late at night because a storm is coming. Ingenuity means you figure out how to fix a machine by yourself when you are miles from home. Independence means personal responsibility. After years of practicing law, these values drove me to start a new law firm centered around my passion--agriculture. That is why I founded Janzen Agricultural Law LLC.

Now is the perfect time. The pace of agricultural efficiency improvement in the past decade has been incredible. Tractors, combines, and other agricultural equipment--modern versions of industrial machines invented a century ago--can traverse acres at speeds inconceivable a few years ago. GPS guides machines on autopilot. Engineered crops resist disease, lessen erosion, and improve yields. Robots milk cows. And now drones scout crops. Modernization has made farming more efficient than ever.

Agriculture is at an amazing crossroads today. The future of increased production lies not only with increasing speed, precision, and efficiency, but analyzing the data that farming generates for continual improvement. As a result, after years of consolidation, agriculture is now sprouting new companies and new divisions in legacy companies to better collect, analyze, and utilize farm data. The law will have to evolve and adapt to this new reality, and I want to be ready to meet these challenges.

At this crossroads between modern and emerging technologies I decided to build a new law firm. Our firm’s lawyers will know farming because we come from farms and rural backgrounds. We will share the values of farmers and those in the industry. We will have a deep passion for agriculture. We believe that those people focused on feeding a growing world deserve lawyers that understand what they do.

By Todd Janzen

Please check out my new website, www.aglaw.us.

Bringing Transparency to Farm Data Contracts: A Presentation to Indiana Farm Bureau

2015-11-16T13:18:00.003-05:00

On November 16, 2015 I'll be speaking at Indiana Farm Bureau's annual convention about legal issues related to transfer, use and control of farm data. I'll also include a discussion of industry efforts to bring transparency to contracts between farmers and their agricultural technology providers.

To see an agenda for the convention, click here: Indiana Farm Bureau State Convention

Farm Co-ops and Farm Data

2015-11-04T09:23:00.001-05:00

This Friday, November 6, 2015, I'll presenting at the Farm Cooperatives Conference in Minneapolis, Minnesota. My presentation is about the legal aspects of farm data, including control, transfer, use, and transparency. I will focus on issues that are specific to farm cooperatives.

Here are some other resources for attendees.

Does Your Co-op Own Your Farm Data?

Are You Addressing Farm Data in Your Contracts with Farmers?

Farm Data in Custom Farming Arrangements

US House Ag Committee Holds Hearings on Farm Data

2015-10-28T10:02:00.000-04:00

The US House of Representatives Agricultural Committee will hold hearings today on Big Data and Agriculture: Innovations and Implications. You can watch on YouTube (link below). I think Congressional intervention at this time could stifle innovation of what is a relatively young industry, but I'm glad to see Congress looking into the issues associated with farm data privacy, transfer, use and control.

US House Committee on Agriculture: Big Data and Agriculture: Innovations and Implications

How VW's Diesel Engine Debacle Will Impact Farmers

2015-10-16T09:16:00.003-04:00

Volkswagen (VW) has been in the news lately after university researchers discovered its "clean diesel" emissions were as much as 40 times higher than EPA regulations allowed. VW apparently programmed its engine control unit (ECU) software to run on a more efficient setting—meeting EPA emission standards—while undergoing testing. But in normal use the software runs a different setting, boosting performance at the expense of emissions. The scandal caused the CEO to promptly resign, but the fallout is hardly over. What will this mean to agriculture?

Earlier this year there was a lot of debate about “technology protection measures” or “TPMs” that agricultural equipment manufacturers place on tractor, combine, and forage harvester’s ECUs. These TPMs make it illegal for owners of these machines to hack into and modify the engine management software, since that software is only licensed by John Deere and others and not sold to the buyers. Media outlets like WIRED and NPR chastised farm companies using TPMs and taking away farmers’ rights to modify their software.

I wrote an article about this topic as well and asked if farmers should have “The Right to Tinker”?

I think VW’s diesel engine debacle will move the needle towards greater ag equipment manufacturer control of engine and software components. This means less control for farmers (although the trend was already moving that direction anyway) and away from farmers’ right to tinker with their equipment’s programming. The EPA could argue that the ease at which a few VW engineers reprogrammed diesel engines to boost performance at the expense of air emissions should be another reason why farmers should not be allowed to hack into their tractor’s ECU to customize the settings. VW’s actions make clear that the performance benefits to the hacking farmer who reprograms his diesel engine could be significant, but at the expense of air quality.

Farmers have always loved to tinker with their equipment, but VW’s conduct is going to make it that much harder.
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For more information, the New York Times explains how VW cheated on emissions testing.
The ABA Journal explains that, in a world of transparency, companies often forget internal transparency. The Journal asks, "Where were VW's lawyers?"

FAA Issues $1.9 Million Fine to Drone Operator

2015-10-06T16:14:00.001-04:00

On October 6, 2015 the Federal Aviation Administration (FAA) issued an enforcement letter to SkyPan International, Inc. assessing a $1.9 million dollar civil penalty for flying unmanned aerial vehicles (UAVs) without permission. The FAA has fined drone operators for unlawful flights in the past, but this is by far the largest civil penalty to date. This should be a reminder to unauthorized drone pilots that flying commercial UAVs is still illegal and carries great risk in the United States.

The allegations against SkyPan state that the company conducted 65 unauthorized flights in congested airspace in New York City and Chicago over a two-year period. Of these, 43 flights took place in Class B airspace (near an airport) without obtaining air traffic control (ATC) clearance. To the FAA, these flights were clearly “illegal” and high risk.

According to the FAA, SkyPan lacked an airworthiness certificate, Certificate of Waiver or Authorization, for its flights. The FAA also called SkyPan’s flights “careless” and “reckless,” potentially endangering lives.

The FAA’s letter to SkyPan should be a reminder to persons flying drones that just because “everybody is doing it” does not make flying UAVs legal. We are still waiting on the FAA’s final rule authorizing small UAV flights in the National Airspace System. Until then, commercial flights remain illegal unless the operator has obtained permission from the FAA.

SkyPan has an opportunity to challenge the FAA's enforcement letter. I have no personal knowledge as to whether SkyPan was as careless or reckless as the FAA's press release suggests.

Four Takeaways from the Precision Ag Data Platforms Conference

2015-09-01T21:35:00.003-04:00

The recent Precision Ag Data Platforms conference was one of the most interesting events I've attended this past year. Ag data management platforms are part of a young industry by agricultural standards, but these offerings are growing and diverse. Like any new technology, growth comes with a lot of growing pains. Here are four reoccurring themes I heard throughout the day.

There is an abundance of farm data management options on the market today. For the last 100 years, companies supporting agriculture have been steadily going out of business or merging with competitors, leaving farmers with fewer options each year. In the ag data platform world, this trend is reversed. Farmers have every option from John Deere's precision ag data management solutions, backed by one of the world's largest companies and deepest networks of dealers, to modern day upstarts that did not even exist a few years ago, such as Farmlogs, Granular, or Farmers Business Network. In between these two young and old extremes are adolescent companies, such as Climate Corporation, Farmserver, and Encirca, that are relatively new ventures but paired with established industry players. More new companies come online each month.

Still, in spite of the many options available to farmers, the farmer panel repeatedly expressed frustration that no one was making a product that fully satisfied their needs. No single ag technology provider has created that cradle-to-grave farm management solution. Farmers are left using many platforms, which don't always work well together.

And that leads me to my second takeaway: this is an industry in need of standardization. Attendees heard this over and over again. As companies race to give farmers data solutions, they often keep their solutions proprietary. As a result, one machine may not communicate well with another machine, and cloud X may not communicate well with cloud Y. There are efforts to bring standardization to the industry, such as SST's AgX platform, but widespread standardization is still years away, unfortunately.

My third takeaway from the conference is that although data collection tools are developing quickly, useful data analytic tools are still a work in progress. It is easy to collect agronomic and machine data. That requires solving a logistics problem. But finding a platform that can crunch the numbers and provide a farmer with useful, practical information that improves their farming practices is more difficult. Data analytics are coming, for sure, but we aren't there yet. That is why the return-on-investment (ROI) is still unknown for many farmers wondering whether to sign up.

My final takeaway is that lack of trust is still the main road block to widespread adoption of farm data management platforms by farmers. Many farmers are still reluctant to let go of their data because they do not trust ag technology providers. Trust is not something that can be won over by clever marketing materials. Trust takes time and commitment.

I can't wait to see where the ag data platform industry is in five years.

By Todd Janzen

Farm Data in Custom Farming Contracts

2015-08-30T21:27:00.001-04:00

As custom harvesters make their way across the United States and Canada this summer, I keep wondering what happens to all that yield data these machines are collecting. I am sure much of the data is forwarded to the landowners and farmers so that they can make decisions for next year. I hope so. But do custom harvesters address this in their agreements? Here are some suggestions for how they should.

Step 1: The custom farming contract needs to define the "farm data." For custom harvesters, farm data is the yield information tied to geospatial locations. It may also include machine data, such as fuel usage, if the farmer wants that information. For other custom farming arrangements, the "farm data" will be other data-sets, depending on the activity completed.

A good contract will also include a warranty from the custom operator that their machines have been properly calibrated and the farm data is accurate. Custom farming providers may be reluctant to provide such warranties, but doing so could be a competitive advantage.

Step 2: The contract should explain who owns the farm data. This should be simple in the custom farming arrangement, because in most instances, the farmer or landowner should own the data. However, custom harvesters may want to retain some data so that they can analyze their efficiency from field to field and year to year. This too should be spelled out.

Step 3: The contract should state how and when the farm data will be transferred to the owner. Will a third party cloud-based server be used? Will the custom operator hand over the data in a physical format? These questions can easily be answered.

Step 4: The contract should explain what obligations the custom harvester has to retain the farm data after transferring to the farmer. The custom harvester may want to retain the data for themselves--for future planning purposes--and that's OK, provided both parties know this and agree.

Some may see these provisions in a custom farming arrangement as overkill, but I think of them as forward looking. Some day these type of provisions will be common in farming contracts. Why not start now?

Is Your "E-Signature" Valid?

2015-08-27T20:57:00.002-04:00

The prevalence of "I accept” check boxes on online contracts may have some people wondering whether one click of the mouse is as effective as signing your John Hancock? The answer, for the most part, is yes. “E-signatures” can be just as binding as real signatures. But like all legal matters, the validity of e-signatures is not always black and white.

Since 2000, e-signatures have been the law of the land. In that year, Congress passed the Electronic Signatures in Global and National Commerce Act (E-SIGN). 15 U.S.C. § 7001 et seq. E-SIGN provides that “a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form” or because the signature is in electronic form: 15 U.S.C. § 7001(a) and (b). Moreover, where a statute requires disclosures be made to consumers, electronic acknowledgement of that disclosure is also sufficient. 15 U.S.C. § 7001(c). In other words, clicking “I accept” is most often as good as signing a paper contract.

If there were any doubt, most states have also adopted the Uniform Electronic Transactions Act that establishes that “a record or signature may not be denied legal effect or enforceability solely because it is in electronic form.” E.g. Ind. Code § 26-2-9-106. Likewise, “A contract may not be denied legal effect or enforceability solely because an electronic record was 'used in its formation.” Id.

For users of ag technology platforms, these laws are a reminder that a simple click of the mouse can be just as effective as signing your name on a paper contract. This means check boxes should clicked by a farm's owner or manager, not just an employee. Ag technology providers, likewise, should keep record of who clicks “accept” and link that information with a user's account. That way, if a dispute arises later, there is no question that the user accepted the contract terms.

There are exceptions to enforceability of e-signatures, of course. A contract that waives a person’s rights must be clear and unambiguous—just like a normal written contract requires. Wills, trusts, deeds and many other legal documents still require heightened formalities for signing, such as witness or notary attestations.

But for most online contracts, your e-signature is no different in the eyes of the law as an old fashioned signature on pen and paper.

A Response to NPR's Article about DIY Tractor Repair

2015-08-18T13:15:00.000-04:00

A recent NPR story exclaims that “copyright law makes it illegal to repair [farm] machinery run by software.” (DIY Tractor Repair Runs Afoul Of Copyright Law). WIRED essentially ran this same article a few months ago (We Can't Let John Deere Destroy the Very Idea of Ownership). Both authors make some good points, but both also overstate the facts to make their case. The Digital Millennium Copyright Act (DMCA) does grant John Deere (and other ag equipment manufacturers) the ability to prevent tampering with their proprietary software--such as the engine ECU--but contrary to the NPR article’s premise, normal maintenance and repairs do not run afoul of the law.

Farmers can still change the oil, replace parts, and service their equipment without breaking the law. But hack into the software to change how the engine runs or bypass emission controls and its a different story. As I stated in my prior response, John Deere does not own your tractor, just the software. However, it is worth debating whether farmers should have the right to tinker with how their machines operate.

For now, don't blame John Deere for using the DMCA to protect its technology investment. Apple does the same thing.

My Top Ten Farm Data Articles

2015-08-10T23:01:00.001-04:00

I've been writing about the legal issues surrounding farm data for a few years now. Quite simply, farm data is the most exciting subject I've encountered in more than a dozen years practicing law. A farmer's ability to collect, share, and analyze data has tremendous potential to improve farming in next decade. As a farm kid turned-lawyer, I see my role in agriculture's big data revolution to push farmers to think about legal issues they may not have considered, and to push ag technology providers to rethink traditional legal frameworks that apply to data in other industries. Farming is different. That's why I keep writing.

For new followers of the Janzen Ag Law blog, here are ten of my most widely read articles on agriculture's "big data":

Thanks for taking an interest in my blog. Keep reading and keep sending me your feedback. I'll keep writing.

Are Farmers Hitting the Brakes on New Technology?

2015-07-23T10:12:00.001-04:00

When my dad retired from farming, one of the first things he purchased was a nice late-model John Deere 4020. He still owns some land and uses this tractor for dirt work and land maintenance. With the baby-boomer generation of farmers retiring, I assumed that values on older tractors would probably start to rise as these retired farmers purchase their childhood dream machines. But a recent post by Greg “Machinery Pete” Peterson got me thinking that increasing values on used tractors might be reflecting a different trend—is it possible the rise in used machinery prices is a sign of farmer backlash against new technology?

First, let’s look at the facts. New machinery sales are down. No question about it. I’ve been reading that everywhere. It is not surprising considering the anticipated tight margins for row crop producers this fall. For example, AgWeb recently posted: Deere Sales face Pressure From Corp Prices Despite Recent Rally. The Ag Equipment Manufacturer’s Association reports that through June 2015, combine sales are off 41.7%, 4-wheel-drive tractor sales are off 44.6%, and 100hp+ tractor sales are off 17.7% for the same period in 2014. (See report here: Equipment Sales 2015)

Meanwhile, good, used machinery values appear to be up. Machinery Pete has been reporting a surge in prices in well-maintained, older equipment. These are machines that predate the introduction of modern, precision ag technologies:

I asked Machinery Pete why he believes some farmers are favoring these older machines in lieu of newer ones. His response was that the “high cost and complexity” of new machines, together with a tight supply of nice low hour older machines, was driving up prices.

There certainly has been a lot of discussion lately about farmers losing control of their farms through technology. Two WIRED articles have argued that farmers can no longer self-service their new tractors and that copyright laws have taken ownership away from farmers. The rise of cloud-based servers to help farmers analyze their crop data has also caused a lot of ag industry concern over who will own farmers' data in the long run.

Could the high prices on older "low-tech" equipment be a sign of farmers' fear of losing control of their farms to new technology? I don’t know. But I think any manufacturer would be foolish to ignore this question. The real lesson here is for manufacturers and technology providers in the ag industry: farmers want new technology, but that does not mean they want to lose control. New technology should be designed with the farmer in mind.

What do you think is causing this trend?

Big Data and Technology in Ag Seminar August 14, 2015

2015-07-22T12:53:00.002-04:00

Please join me for the Big Data and Technology in Agriculture seminar on August 14, 2015 at Indiana Farm Bureau. The day promises to have a number of engaging speakers who will cover different aspects of farm data technology, privacy and security. I'll be speaking about the legal aspects of managing farm data as well as efforts to ensure transparency with ag technology providers. More information can be found by clicking "Continue Reading" below or going to www.InAgLaw.org/bigdata.

Here is a complete agenda for the day:

Morning Session

Dr. Jay Akridge, Glenn W. Sample Dean of Agriculture, Purdue University
Overview of big data issues related to agriculture, emerging trends in data usage and how Purdue University will be engaged.

Todd Janzen, Partner, Plews Shadley Racher & Braun LLP
Agricultural data privacy agreements and his role with the national transparency evaluator for data privacy agreements.

Kathleen Rice, Counsel, Faegre Baker Daniels
Overview of data security, data privacy and risk management.

Afternoon Session

Todd Wilken, general manager for Pig Improvement Corporation (PIC) and William Herring, director of global genetic development, PIC, share data capture, management and use in PIC global swine breeding stock system.

Ryan White, CCA, regional business manager, FARMserver, shares how FARMserver monitors crop variables, collects data and analyzes the data to increase productivity on the farm.

Dr. Michael M. Schutz, assistant director for extension, Purdue University, speaks on data collection and usage in the dairy industry.

The seminar will be at:
Indiana Farm Bureau
225 South East Street
Indianapolis, Indiana 46202

To register, please go to: www.InAgLaw.org/bigdata

Are We Ready for Autonomous Tractors?

2015-07-09T13:19:00.001-04:00

Although Google’s autonomous car appears to be getting most of the press, the auto-guidance system on tractors, combines, sprayers and other farm equipment has been around for years. Farmers still “pilot” their equipment today—sometimes pushing the “autopilot” button—but it does not take a crystal ball to predict that someday farm machinery will pilot itself around fields while farmers monitor such equipment remotely from a control room at the farm. Are we ready for the liability issues that may bring?

The technology already exists to make autonomous tractors a reality. If you don’t believe me, check out this YouTube video of an autonomous John Deere tractor planting.

Likewise, Kinze Manufacturing has demoed an autonomous grain cart that delivers grain from the combine to waiting trucks without a pilot on board.

There are some obvious liability issues that come with self-driving farm equipment. Accident risks are huge. Google’s self-driving cars are tiny and probably would “bounce” off another car in a collision. But a new four-wheel drive tractor that runs out of control is not going to stop when it collides with vehicles, buildings, etc. In automated farming, there are concerns with people or objects being in fields where they normally would not be, such as children playing in field while watching a tractor work, or cattle getting loose in a hay field that is in the process of being cut. Would an autonomous machine stop for an unforeseen obstacle?

Google's autonomous car

The technology exists to minimize these risks, such as radar sensors that would “see” a cow grazing in the wrong field and GPS that might stop a tractor from leaving a field’s boundaries. For years cars have had accident avoidance technology, such as pre-application of the breaks when a collision appears eminent. Thus, for the most part, autonomous farming could already be reality. And since most farm accidents are caused by human error anyway, removing the human factor might actually decrease the risk of an accident.

But we have not yet embraced autonomous farming. Why?

Autonomous farming potentially shifts the liability for farm equipment accidents from the farmer to the equipment manufacturer. John Deere is not liable today when one of its tractors runs into an intersection because its operator fell asleep. But if the same accident occurred because the software malfunctioned and the machine failed to stop, liability would shift to John Deere. Legislation could alter or limit this liability, but I have not heard of any proposals to do so at this time.

It is foreseeable that accidents will result in the blame-game between equipment manufacturers and their customers. Manufacturers will blame the farmer for not calibrating or setting up the equipment properly, and the farmer will blame the manufacturer for a design flaw. Equipment manufacturers don’t want or need this problem.

Another reason is emotional. Americans are in a love affair with their food right now. Consumers crave a greater connection between the dinner table and the farm. Taking the farmer out of the tractor seat reinforces the wrong stereotype—that farmers are removed from and don’t care about the land they tend.

Perhaps the question should not be when will we be ready for autonomous tractors, but when will Google build one?

Put Junk Data in the Silo. Get Junk Data Out of the Silo.

2015-06-29T16:48:00.001-04:00

Farmers had a great saying growing up, which goes like this: “If you put rotten feed in a silo, you get rotten feed out of a silo.” The same is applicable to farm data. Seems like every week a new product emerges that is designed to collect, analyze, and benchmark farmers’ data in hopes of improving productivity. In the race to collect farm data, I think the data collectors are often forgetting this old farm expression. There is no point in collecting and aggregating “junk” data.

What is junk data? I think of junk data as information generated without proper calibration on the equipment, or from sloppy farming operations. For example, if a combine believes it has a 7-row corn head instead of an 8-row head, its yield sensor would be off by 12.5%, creating data that is also off by 12.5%. Similarly, a farmer who doesn’t fully clean out his corn planter when switching hybrids may plant a field that is only 95% of the variety recorded, leading to a potential 5% inaccuracy.

In the past, such inaccuracies only affected the farmer who generated such data. With the rise of big data analytic tools, that is no longer the case. A farmer who enters inaccurate yield data into a benchmarking tool is skewing the data for everyone else. As a result, the farmer who enters accurate data from properly calibrated machines is comparing his data to artificial data—and since he doesn’t know the benchmarking data contains junk—he doesn’t know his results are skewed.

Farmers should realize that there is a potential liability issue here, too. Some ag technology provider contracts require that farmers only upload accurate data. I’m sure the day will come when a landowner intentionally uploads inflated yield data in order to show inflated farmland value before a sale.

What we really need is the ability to clean farm data. When I do my taxes on TurboTax, at the end of the process the software tells me where I might have made mistake when entering data. How does the software know this? It doesn’t. But by comparing the figures that I entered to my previous tax returns and the millions of other people who filed similar returns, TurboTax is able to ask me: “Are you sure you sold that old car for $100,000?” At which point I realize I entered an extra zero, fix the mistake and correct the return. Google search bars are masters at sniffing out mistakes in search terms. Does your farm data analytic tool do the same if you unknowingly upload junk data?

My advice to farmers is two-fold. First, calibrate those data collection machines. Accurate data is valuable. Junk data is just junk. Second, look for analytic data aggregators that “clean” data. If the program you are using now doesn’t do this, my guess is that it will soon.

Is Your Farm Data a Trade Secret?

2015-06-18T10:23:00.000-04:00

Every agricultural technology provider likes to say that “the farmer owns the data,” but is that really true? This statement hinges on the answer to a central question: is farm data a form of intellectual property that the law protects? Farm data doesn’t neatly fit into the legal box designed to hold patents, copyrights, or trademarks. That leaves the law of trade secrets. If farm data is a protected form of intellectual property, it must be a form of trade secret.

Trade secrets are governed by the Uniform Trade Secrets Act, which has been adopted in similar forms in most states. The definition of a trade secrete is:

Information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The classic example is the formula for Coca-Cola. Coke guards this formula like a hawk, making sure that no one else can reproduce the exact flavor without knowing the exact formula. Of course, Coke has been reverse engineered many times, but never exactly (from what I can tell). Its formula is not readily ascertainable by others.

Breaking the definition of a trade secret into its five core elements and applying to agronomic farm data, a trade secret is:

A formula, pattern, method, technique or process
That creates economic value because
It is not generally known or
Readily ascertainable to other persons
And its secrecy is maintained.

Think about these five elements with respect to a cornfield. Is the manner that corn is grown on that field a formula, pattern, method, technique or process? Yes. Does it create economic value? In good years, yes. Is the means for raising corn on that field “generally not known or readily ascertainable” to other farmers or agronomists? Maybe. This is where agronomic farm data doesn’t fit perfectly within the definition of a trade secret. Still, a farmer who keeps the data for years and understands a particular field better than anyone else, probably has a strong argument that his or her farm data could be a trade secret—provided reasonable steps are taken to maintain its secrecy.

And this raises the ultimate question: Does sharing data with data analytic providers destroy its secrecy? I think the answer is probably “no,” provided sharing is done anonymously.

So is agronomic farm data protectable under the Uniform Trade Secrets Act? The facts weigh in the farmer’s favor, but courts will ultimately have to make the call.

Are Livestock Farmers Being Left Behind in Ag's Big Data Revolution?

2015-05-29T16:05:00.000-04:00

The rapid spread of the avian flu across the Unites States has been cause for concern for a lot of farmers and consumers. I can’t help but wonder whether wide-spread adoption of data collection and sharing by poultry farmers could have helped stop the spread of the avian flu. Most of the focus on farm data the past few months has been on the impact on corn, soybean, wheat, canola, and cotton farmers. I keep wondering when the big data solutions for livestock farmers will appear.

Kenneth Cukier describes in his book “Big Data, a Revolution,” how Google searches can be used to predict where a cold virus will spread based upon what terms people are searching in what geographical locations. If poultry farmers used a centralized data storage tool to track the medicines they were buying and administering, could we do the same to reduce the spread of avian flu?

Similarly, if production data from dairy cows in the Midwest was tracked and collected in a centralized database—then shared with participating dairy farmers¬¬–could these farmers better predict the swings in milk production (and consequent swings in price)? Big data has enormous implications for livestock farmers too.

The first step in big data analytics is collection of the data. This needs to happen in the livestock industry to give farmers another tool to bolster production and reduce the effects of market swings. Dairy farmers have been collecting data on cows for decades, even in computerized form, but are these dairies also sharing and benchmarking their results against other farms? I don’t think so. We aren’t there yet.

Some companies in the meat packing industry already do this. On a recent tour of a meat packing operation, I was able to see how meat packers share all data among each other to measure and compare productivity.

But why can’t dairy, beef, swine and poultry farmers do the same thing at the local level?

If you are a startup company or existing technology provider that serves the livestock or poultry industry, I’d love to hear from you about this topic. If you have livestock data analytic tools, please let me know. I’d love to hear more.

Data analytics promise tremendous advancements for crop farmers. Let’s make sure livestock farmers don’t get left behind.

What Makes Agronomic Farm Data Different from Other Forms of Intellectual Property?

2015-05-10T13:59:00.001-04:00

I often hear other attorneys say that agronomic farm data is just like other forms of intellectual property, and that the issues farmers are confronting have already been dealt with in other areas of law. But the truth is that agronomic farm data is unlike any other form of property. Agronomic data is unique. As a result, how much protection the law will ultimately afford farmers for their agronomic data is an open question. This post explains why agronomic data is different than other forms of intellectual property.

Agronomic data isn't necessarily copyrightable. Copyright exists to protect creative works. Examples include music, books and literary works, pictures, videos, and sculptures. Software can also be copyrighted. Agronomic farm data doesn’t neatly fit into the category of copyrightable work since it lacks the creative element of these other art forms. For example, there is little creativity in the pattern a farmer makes when crisscrossing a field to plant corn. Likewise, when a combine generates yield data for a field, the farmer isn't authoring the yield map—the combine is creating that. The combine is not a creative author. I’m not prepared to say that farm data can never be copyrighted, but for the most part, copyright is not a good fit.
Agronomic data isn't patentable. A patent must be new, useful, and not obvious. The Segway scooter is a great example of a patentable invention. Agronomic data doesn't fit this mold. While data is certainly useful, it lacks the “new” or “non-obvious” elements required for patent protection. From a practical standpoint, no farmer is going spend the time or money to navigate the patent process to try to patent their farm data anyway.
Agronomic data is inherently private. Intellectual property is protected so that authors can disseminate their work without fear it will be stolen. Farmers, for the most part, don’t want to share their data with others about how they farm. They want to keep this information private, only sharing with their trusted advisers as necessary to increase yield. While a software programmer wants to license their program to millions of users, farmers generally don't want to share their agronomic data. (Would farmers feel differently if they could license their data for a fee? My guess is yes!)
Agronomic data is tied to the land where it was generated. There are many forms of agronomic data, such as planting population, hybrid selection, yield data, pesticide application, etc. These data sets have value because they are tied to real property. That’s because each parcel of land is unique. The soil is unique. The weather is unique. The atmosphere above the land is unique. One cannot use the agronomic data generated on parcel X and apply to parcel Y without having a good understanding of the land. For example, yield information on a cornfield with sandy soils and low rainfall is not necessarily valuable when applied to a field with loamy soils and high rainfall. Without connecting the agronomic data to the land, the data is of limited value.

Still, these unique characteristics do not mean agronomic data is without any protection under the law. Such data may ultimately be considered a “trade secret” of the farmer. I’ll discuss this concept in a future post.

Farm Machinery, Copyright, and the Right to Tinker

2015-05-01T15:51:00.000-04:00

It may not be enumerated in the Bill of Rights, but the Right to Tinker with farm machinery is well embedded in America’s rural culture. I grew up a first-hand witness to farm tinkering. I still remember when my dad and Uncle Herman thought it would be a good idea to “marry” a header from a John Deere chopper onto a Farmhand silage cutter. Farmhand made a good harvester, but a lousy header. With some farm-engineering and a lot of welding, a new Farmhand/Deere silage cutter was created. The machine wasn't perfect, but it cut a lot of silage. It was the epitome of tinkering.

I’ve been thinking about this sort of on-the-farm tinkering since reading a recent WIRED article about John Deere’s assertion that farmers should not be allowed to tinker with their farm equipment’s software. So many aspects of farming in my childhood involved modifying equipment to improve it. Today, this still occurs. I’ve been fascinated by all of the farmers showing off their corn planter modifications on social media. In fact, Monsanto thought planter mods were so valuable it agreed to pay $250 million for Precision Planting, Inc., a company founded on planter-tinkering.

John Deere and other manufacturers oppose removal of “Technology Protection Measures” (TPM) on vehicle equipment software. These TPMs prevent tinkering, which these software creators say is necessary due to warranties, emission controls, reliability and safety. Copyright law currently favors these TPMs, providing developers with up to 120 years of copyright protection to keep infringers from modifying their software (or copying it).

The law may allow it, but is prevention of software tinkering a good thing for tractors, combines, and silage cutters? I think the ag community needs to have this debate. Should you be able to buy a new tractor and modify its software to make the tractor run differently? Or should you be able to replace the software entirely with a different system that better meets your needs? Should farmers be allowed to tinker with their software, like they do everything else?

The real problem here is with copyright law. A company’s copyright exists for up to 120 years. That’s too long for software. My suggestion is to shorten copyright duration on software to 10 years. That way companies like John Deere could protect their investments with TPMs on new equipment, and buyers of 10+ year-old used equipment would be free to tinker all they want. But even if the law doesn't change, companies could voluntarily agree to sunset their TPMs after a number of years.

After all, the Right to Tinker is as American as the steel plow.

John Deere Does Not Own Your Tractor.

2015-04-25T13:05:00.003-04:00

WIRED magazine’s recent headline: “We can’t let John Deere destroy the very idea of ownership,” really got my attention. The article’s premise is based upon John Deere’s recent comment to the US Copyright Office that farmers who buy a new John Deere tractor are granted an implied license to operate a tractor for the duration of its life. Or as WIRED puts it: “It’s John Deere’s tractor, folks. You’re just driving it.” I decided to dig a little deeper.

Modern tractors, combines, forage harvesters, etc. all have complex computer software that controls many components. Manufacturers like John Deere design this software and, to protect others from stealing this technology, John Deere registers the software with the US Copyright Office to obtain federal copyright protection. A copyright generally expires after 70 years.

John Deere and other technology providers add “Technology Protection Measures” (TPMs) to software that prevent competitors, hackers, or other persons from accessing their code, altering it, and putting it back into the stream of commerce.

The Copyright Office recently published notice that it was considering allowing circumvention of TPMs for vehicles, including agricultural machinery. This would mean that anyone, with the permission of the owner, could access a tractor’s software and reprogram it. The Copyright Office’s rationale for this change is that an owner of a tractor should be allowed to access, change, or repair the vehicle’s software without the original manufacturer’s approval. John Deere and others disagree.

Why? According to John Deere, the software on modern agricultural equipment is crucial to its operation. Emissions, safety, performance, and reliability are all dependent on properly functioning software. Fear of nefarious hackers is also part of Deere’s concern. Imagine a hacker taking control of a 500 horsepower tractor remotely and driving it into a crowd. Less emphasized, but perhaps more important to John Deere, TPM’s prevent competitors from easily accessing and copying Deere’s proprietary operating software.

A John Deere cab is a high tech place to work.

WIRED exaggerates to make its point. John Deere is not suggesting it owns a farmer’s tractor. But Deere is claiming it owns the rights to the software. John Deere states: “A vehicle owner does not acquire copyrights for software in the vehicle, and cannot properly be considered an ‘owner’ of the vehicle software.” John Deere points out that there are many parts on tractor that can be repaired without accessing the software, so not every machine repair would require a John Deere technician.

Compare this to my cellphone. I own my iPhone, but I only license the operating system (iOS) from Apple. When something breaks, I have to go to an authorized Apple technician to get it fixed. John Deere wants the same protection for software on its tractors.

I don’t fault John Deere for protecting its intellectual property. Deere spends millions engineering software, just like it does diesel engines. It should be allowed to protect its investment.

I think the real issue here is whether or not someone who buys a car, tractor, truck, etc. should be allowed to modify the vehicle’s software just like they would the paint, wheels, or trim. We've been having that debate with smart phone manufacturers. Now its time to debate the same issue in the farming community.

What do you think? Should ag equipment manufacturers be allowed to sell you a tractor but only license you the tractor’s software?

By Todd Janzen

Read the Wired article here: We can’t let John Deere destroy the very idea of ownership,
Read John Deere's submission to the Copyright Office here: Comment on Proposed Exemption (pdf will open).

Does Your Co-Op Own Your Farm Data?

2015-04-23T14:49:00.003-04:00

Recently I was asked this question: When a farm cooperative (a “co-op”) does work for a farmer and in the process generates agronomic data, does the co-op own that data or does the farmer? Many in the ag industry like to say “the farmer owns the data,” but the co-op’s generation of farm data presents a more complicated problem. Of course, if the co-op has a written contract that addresses ownership, this is a non-issue. (See my previous post for more on this: Co-Ops and Custom Applicators: Are You Addressing Farm Data?). But who owns the data if there is no written contract?

When there is no written contract between the farmer and the co-op, data ownership is ambiguous. The farmer could say that he or she owns the data, since the data was generated on their land. The co-op could also claim ownership, since such information could be proprietary to the co-op. For example, imagine a farmer asks the co-op to spray a particular weed on his field, but he leaves herbicide selection and formulation to the co-op to determine.

American Farm Bureau Federation’s recently released Principles for Privacy and Security of Farm Data does not answer this question. It suggests that when there are multiple parties claiming an ownership in farm data, these parties should agree among themselves as to who is the data owner.

If farm data is a trade secret from a legal standpoint, then the Uniform Trade Secrets Act (“USTA”) (adopted in most states) may shed some light on the issue. It defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Applying this definition to farm data generated by a co-op, the USTA suggests that the person who creates the “pattern,” “method” or “technique”—the co-op—would be the owner of the trade secret.

But that does not fully answer the question, because the law also recognizes that some intellectual property is done as a “work for hire.” This means the person creating the trade secret (or patent, copyright, or trademark) is working for an employer. That employer is the owner of the “work” in those situations. Perhaps a court would view a co-op’s farm data as a “work for hire” belonging to the farmer. I’m not aware of any case addressing this point.

All these unknowns boil down to this: farmers and co-ops need to establish who owns farm data in their agreements.