The Janzen Ag Law Blog 3.0

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.

Why I Created an Agricultural Law Firm

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.

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

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

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.

US House Ag Committee Holds Hearings on Farm Data

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. 

How VW's Diesel Engine Debacle Will Impact Farmers

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?

FAA Issues $1.9 Million Fine to Drone Operator

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.

Four Takeaways from the Precision Ag Data Platforms Conference

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.

Farm Data in Custom Farming Contracts

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.

Is Your "E-Signature" Valid?

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.

A Response to NPR's Article about DIY Tractor Repair

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.

My Top Ten Farm Data Articles

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.

Are Farmers Hitting the Brakes on New Technology?

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?

Big Data and Technology in Ag Seminar August 14, 2015

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.

Are We Ready for Autonomous Tractors?

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?

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

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.

Is Your Farm Data a Trade Secret?

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.

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

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. 

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

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.

Farm Machinery, Copyright, and the Right to Tinker

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.

John Deere Does Not Own Your Tractor.

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.

Does Your Co-Op Own Your Farm Data?

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?

Drones at the Speedway: A Presentation to The Racing Attorneys Conference (TRAC)

On April 15, 2015 I'll be on a panel discussing hot topics in the law at The Racing Attorneys Conference in Indianapolis, Indiana.  I'll be talking about the legalities of unmanned aircraft vehicles (UAVs) or "drones" in the motor racing industry. I've posted a link to my presentation here if you are unable to attend:

Drones at the Speedway: TRAC Conference Presentation

Co-op and Custom Applicators: Are You Addressing Farm Data in Your Contracts?

Farmers will call up their local co-ops this year to help them fertilize and spray their fields.  These sprayers-for-hire will be recording what they do, but what happens to that data after that point?  Does the co-op have an obligation to provide that data to the farmer?  Does the co-op own the data generated on a farmer’s field? These questions need to be answered when farmers engage third parties to perform precision ag activities on their fields.

Big Data on the Farm: Legal Issues Surrounding Farm Data Ownership, Transfer, and Control

This Thursday, March 19, 2015 at 12:30 EDT, I'll be hosting a webinar titled "Big Data on the Farm: Legal Issues Surrounding Farm Data Ownership, Transfer, and Control."  The webinar is hosted by ThompsonReuters and geared towards a legal audience. Continuing Legal Education (CLE) credit is available for most states. More information below.

Don't Forget the Little Guy: FAA's Proposed Rules for "Micro" UAVs

Many articles have been written about the Federal Aviation Administration's (FAA) proposed rules for "small" unmanned aircraft systems ("small UAS" or "small UAVs"). But most authors have overlooked that the FAA is also considering special, less stringent rules for "micro" UAVs.  Micro UAVs weigh less than 4.4 lbs (small drones are less than 55 lbs.) and travel less than 35 mph (small drones are restricted to 100 mph).  This article takes a closer look at the FAA's proposal for micro-UAVs and its promise for agriculture.

Ten Key Points to the FAA's Proposed Small UAV Rule

The Federal Aviation Administration (“FAA”) has released proposed rules that would govern the integration of “small” unmanned aircraft systems (“small UAS”) into the National Airspace System. The proposed rules specifically state that they would allow crop monitoring and inspection, aerial photography, and research and development—meaning commercial agricultural uses fall squarely within the new rule. Here is my summary of the proposed rule, followed by some suggestions to current and future drone operators.

Talking Big Data and Drones on Inside Indiana Business with Gerry Dick

I was recently lucky enough to be interviewed by Gerry Dick for his television show Inside Indiana Business.  I was joined by Beck's Hybrid's Jim Shertzer who leads FARMserver, a web-based farm data storage and analysis tool.  These are exciting times for agriculture!  You can watch the video by following this link: Drones, Big Data, and Technology on Inside Indiana Business with Gerry Dick.

Thanks Gerry for the opportunity to be on your show!

Defining "Big Data" in Agriculture

A recent comment on one of my articles addressing big data concerns in farm leases asked why I used the term "big data" instead of just "data." This got me thinking about the definition of "big data" and what the term really means with respect to agriculture.

Big Data in Farm Leases: When Landlord and Tenant Both Want the Data

In my last two posts, I discussed what provisions one might add to a farm lease when either the landlord or the tenant wants ownership of farm data generated during the lease. Another scenario arises when the landlord and tenant both want equal access to the farm data. In this situation, the lease should establish co-ownership rights. As a side note, I should mention that data analytic tools on the market at this time, like FARMserver, make this sharing of data between landlords and tenants extremely easy.

Big Data in Farm Leases: When the Landlord Wants Control

In my previous post, I discussed some ideas for drafting a lease to make sure that the tenant owns the farm data created during the lease. Another scenario arises when the landlord wants control of the farm data generated by the tenant. This might be the case where the landlord makes land management decisions, such as what to plant, how much fertilizer to apply, when to spray pesticides, etc. In this type of situation, different provisions need to be included in the lease than suggested in my previous post. 

Does Your Lease Address Big Data?

I've drafted and reviewed dozens of farmland leases over the years, but I've yet to see a lease that addresses the issues associated with ownership and transfer of farm data. As farmers embrace new data storage and analytic tools, it’s time to modernize the traditional farm lease to address farm data. This post begins a series of articles on how to address farm data ownership, privacy, and sharing, in a farm lease.

What You Need to Know about Farm Data Privacy

Here is my presentation to the Indiana Horticultural Congress on January 21, 2015.  You can follow along online by clicking below:

Farm Data Privacy:  What You Need to Know

Please check out other articles about the agriculture and technology on this blog.

Big Data on the Farm: Presentation to Indiana Farm Bureau

My January 20, 2015 presentation to Indiana Farm Bureau's District Meeting can be found by clicking on the following link:

Big Data on the Farm

Don't forget to also check out American Farm Bureau Federation's Privacy and Security Principles for Farm Data.

FAA Approves Ag Drone Flights for One Company: Is Decision a Road Map for Others?

The Federal Aviation Administration has granted a Washington company (Advanced Aviation Solutions LLC) an exemption to fly unmanned aerial vehicles ("UAVs" or "drones") commercially for "precision agriculture" and "crop scouting" purposes.  In general, FAA regulations prohibit any person from flying a UAV in national airspace without an airworthiness certification (except for model aircraft flow under the "hobby" aircraft guidance document).  A person may seek to avoid airworthiness certification by seeking an exemption under Section 333 of the FAA Modernization and Reform Act of 2012 (“FMRA”).  To date, these exemptions have been issued sparingly.  This latest exemption, however, may provide other ag drone operators with a road map for obtaining their own exemption from current FAA regulations.