In Part 1 of this blog, I discussed the question of data ownership and data protection obligations in precision agriculture. More specifically, I noted that all parties along the field to fork chain should give careful consideration to whether farm data likely will be generated at some point in the process and, if so, who is entitled to own or control the data and what data protection obligations exist as a result. In Part 2, I look at the various types of disputes that can arise if parties fail to reach agreement on key issues before starting work. Once agreement is reached, these points then need to be documented in a well-drafted contract. The range of potential disputes that could break out if good contracting is not employed should convince anyone in business in this area to have well-prepared, thorough written agreements in place to govern precision ag-related business dealings.
There are several potential claims that could arise if key issues are not addressed within the precision ag contract. Each of these claims carry with them varying degrees of legal risk. Remedies imposed vary by claim but they include potential money damages, punitive damages, attorneys’ fees and/or injunctive relief. Some potential claims include:
Intellectual Property Claims:
- Copyright—depend on role in establishing and protecting data formats
- Trademark—depends on nature of information taken
- Patent—generally only available as between service providers
- Trade Secret—in most states, must meet criteria under Uniform Trade Secrets Act
Computer Fraud and Abuse Act, 18 U.S.C. § 1030
State law claims:
- Example: Illinois Biometric Information Privacy Act, 740 ILCS 14/
- Example: Multiple bills in various states regarding drones and privacy
Data Security/Data Breach Tort Claims:
- Unjust Enrichment
Although a well-drafted contract can’t guarantee a lawsuit won’t ever be filed, but it certainly can help to decrease risks and, in the event a dispute does arise, can enhance one’s litigation position.
In terms of the agreements themselves, below is a list of some key contract provisions that should be considered for inclusion in agreements related to precision ag data collection and/or use. The list may seem a bit daunting, but not all of these issues will arise in every context. They are simply points to consider for potential inclusion in a precision ag contract.
- Who “owns” the data (farmer, landowner, service provider(s))
- Who “owns” collective data
- What types of data are covered (soil, weather, applications, pests, water flows, genetic, etc.)
- What data can and can’t be used—proper consents and in what circumstances can data be withheld
- What data can and can’t be used for
- Data access—what guarantees are provided?
- What data can and can’t be shared and with whom (NDAs, subpoenas and related notice provisions)
- Term and termination rights
- What happens to data upon termination
- Can data be transferred/portability
- Risks/indemnities—who assumes liability for mistakes, data breach or release, data corruption and error, misuse (like market manipulation) etc.
- Equipment obligations—what is needed to handle data
- Privacy/security protection obligations
- Licenses needed for software/who owns software downloads/NDAs associated with software
- Who is responsible for any regulatory/compliance issues
- Data stream due diligence obligations—check other agreements
- Permissibility of data coop participation
- Who is responsible for obtaining and maintaining records re: any certifications, such as UAS pilot certifications
- Trademark licenses
These provisions must be drafted with care but, when included, help the parties to clearly define the rights and responsibilities of those involved and can help reduce risk. As precision ag evolves as a science and becomes more complex, so too must written agreements governing precision ag business transactions.