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Your operation, but whose data?

Paul Goeringer for Progressive Forage Published on 30 October 2019
Farm data

As we move into winter, many of us might be reflecting on how the farm business did over the past season.

Modern farming equipment may often have technology which can provide the producer or custom operator with real-time information on yield, variable-rate applications and data to better understand time in the field, just to name some. This technology can produce data valuable to the operation. With farm data, one area of the law still being wrestled with is: Who actually owns the data you are creating in your farming operation? The answer to this question is not entirely clear.

On a typical farm, the producer might be getting site-specific geospatial and metadata (information which describes data to make it easier to use later) across many acres. This data would typically be uploaded to the cloud and shared with the agricultural technology provider (ATP). This data might be combined by the ATP with other producers’ data across a region to create what is known as “big data.”

Ownership of property often requires you be provided rights in the property. Ownership traditionally requires the owner to have a right to possess, use, enjoy, exclude others from, transfer, and consume or destroy. For example, you currently are storing hay bales. You possess those bales and have a right to use those bales.

You may enjoy possessing those bales for on-farm feeding or selling in your operation, and you can exclude others from using those bales. At the same time, you can sell or transfer your rights in the bales to another person, or you could destroy the bales. Ownership gives you all these rights.

When we look at data in the context of property ownership, data often does not fit neatly into our traditional views of ownership. Data is not a tangible asset like hay bales. If the data is stored on the cloud (as much of the data developed on farms is), you may no longer have the ability to exclude others from accessing the data. Once stored, data in the cloud may no longer be destroyable. Law rarely keeps up with technology. Defining data under traditional views of property ownership currently will take additional guidance from courts or legislation to help us understand if data can be viewed as other traditional views of property.

Other laws may create ownership interests in data for producers. Some agricultural law scholars have argued data should be treated as a type of intellectual property known as a trade secret – any confidential business information which provides a firm with a competitive advantage over other firms. For example, the 11 herbs and spices used in Kentucky Fried Chicken would be a trade secret. With a hay operation, if you develop a process giving you a competitive advantage, this would also potentially be a trade secret.

With trade secrets, 47 states have adopted the Uniform Trade Secrets Act (UTSA). To qualify as a trade secret under UTSA, there must be a formula, pattern, compilation, program, device, method, technique or process. This trade secret derives actual or real independent economic value from not being generally known to others who might obtain economic value from its disclosure or use. This trade secret must also be the subject of efforts reasonable under the circumstances to maintain its secrecy.

Applying this to a forage operation, we run into an issue. Is there a pattern to planting, swathing, and baling a hayfield? I would argue yes, many of you have patterns to how you work these fields. Do you derive economic value from this pattern? Again, I would argue yes (either positive or negative depending on the year). The issue becomes how generally unknown is your process to others potentially in the field?

At the same time, how protective are you being to maintain secrecy in practices used on the farm? Ag data protections under trade secret laws will vary case to case, or potentially even state to state. Currently, the law is not clear about how ag data would be protected.

As I mentioned earlier, the law rarely keeps up with technology. Data ownership in agriculture is not as clear as we might expect. Data ownership and privacy issues are issues we will continue to face until we get some additional guidance from courts or legislatures.  end mark

PHOTO: Getty Images.

Note: This is not legal advice.

Paul Goeringer
  • Paul Goeringer

  • Extension Legal Specialist
  • University of Maryland
  • Email Paul Goeringer

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