Here we are again discussing farm data, one of the major hot topics of 2015 in ag law. Why? We are turning to “big data” and ownership again because, well, there are still many unanswered questions. You may recall my post from a while ago on “big data” and its definition. Today I am going to focus on whether or not your data is protected and where that protection may come from.
Just to refresh your memory, farm data can be one of three kinds:
1. Agronomic Data: This is information derived from activities and conditions on farm fields. Examples include soil analysis, nutrient information, hybrid selection, plant populations, and yield data.
2. Machine Data: This information is associated with how equipment is functioning. Examples include fuel consumption, machine health indicators, diagnostic codes, and engine performance.
3. Weather Data: This is information about precipitation, wind, temperature, and other climate conditions.
On Todd Janzen’s blog, he predicts that courts and legislative bodies will give each of these categories different levels of protection, as laws develop to protect privacy and ownership rights. When you combine this data from many farms (think regional, state, or county levels), then you have what is termed “big data.” Janzen says, “Big data is the ability to aggregate information to discover trends and find patterns.” With this working definition in mind, let’s turn to the question of whether farm data is protected.
When the legal question of protection comes up, lawyers immediately look to the classification of the item at issue. Presently, farm data has not been legally classified. There is a strong argument, however, that it may fall under intellectual property and more specifically, trade secret. The Uniform Trade Secrets Act ("UTSA") defines a trade secret as:
1. Information, including a formula, pattern, compilation, program, device, method, technique, or process,
2. Which derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
3. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Let’s look at this definition in the context of growing soybeans. Is the manner and strategy in planting and harvesting soybeans a formula or pattern? I would argue, yes, they are. Does growing soybeans in this manner derive economic value? In good years, absolutely. Is the plan for growing and raising soybeans “generally not known or readily ascertainable” to other people in or outside of the industry? Possibly. This is the part of the definition where farm data doesn’t exactly fit and where the law has yet to catch up with technology. However, a farmer who has grown and harvested the same crops over the same property for several years and understands a particular piece of land better than others probably has a good argument that his or her farm data is a trade secret, as long has he or she has taken reasonable steps to maintain its secrecy.
Now you might be wondering, “what if I share this data with my seed company or my co-op?” This sharing has the ability to destroy “secrecy” unless it is done unanimously. So, is your farm data protected under the UTSA and considered a trade secret? The facts seem to weigh in favor of the farmer but unfortunately until laws are created to categorize this data, we will look to the courts to decide. As of now, no courts have had to speak to whether farm data is a trade secret or not. Maybe 2016 will bring more clarity.