Editor's Note: Todd Janzen, attorney at Plews Shadley Racher & Braun LLP in Indianapolis, grew up on a Kansas grain and livestock farm and now practices law in the at the intersection of ag and technology. Todd is chair of the American Bar Association’s Agricultural Management Committee and authors a blog addressing legal issues facing agriculture. You can see more posts from Todd at JanzenAgLaw.com.
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.