Agriculture

Nebraska: The State of Copyright

Amy Johns, MJLST Staffer

In this day and age, everyone should be aware of the truism that with great power, comes a great lobbying team. Nowhere has this been more evident in recent news than in the case of states that have tried to pass “right to repair” laws. Such a law has most recently been introduced in Nebraska as Legislative Bill 67. The purpose of the law is to require that manufacturers provide their service guides and other materials to the public, making third party repair services viable options for owners of all high-tech devices and allowing self-repair.

The campaign for this bill originated with farmers who wanted greater options to repair their high-tech farm equipment; in rural areas the accessibility of authorized repair shops is extremely limited and makes the cost of repairs much greater than for those in urban areas. Before submitting the bill, state senator Lydia Brasch relied on a December 2016 report from United States Copyright Office, which concluded that contract and consumer protection laws at the state level deal with these issues sufficiently, and that federal copyright issues are not going to preempt state laws in regards to right to repair.

The consequences of this bill extend much farther than just farm equipment, however. Similar bills have been introduced in eight states, and the result would be that manufacturers would lose control of repairing their devices; what independent repair shops see as a “monopoly” over device repair would be ended, as these companies would be required to release spare parts and information. Because of these far-reaching consequences, several companies have lobbied to kill this bill, most prominently Apple. These large companies’ main arguments are that hackers are going to have an easier time using this information to infringe on security and privacy, and also that it will weaken their intellectual property rights. Apple even offered to support the bill if the language excluded phones specifically from the included technology.

For the moment, this issue seems to be moot, as Nebraska’s law has stalled out under industry pressures. However, as these laws continue to arise in other states, this conflict will likely play out again. In particular, it’s worth noting that industries are not arguing that federal copyright law preempts state laws from interfering with copyright agreements on these devices. Rather, they are arguing against the practical implications of greater access to manuals and software information. While bringing up IP rights, these companies don’t use legal justification to argue that states should be prevented from passing these laws. The desirable outcomes of such laws are that consumers will pay less for the products that they need to use in their everyday lives; in response, Apple has claimed that their concern is states like Nebraska becoming a haven for hackers. These alarmist responses seem to be a smokescreen for the very obvious financial interest that Apple and other companies have in being the exclusive provider of repairs to their products. For people in areas where those repair services are hard to access, the consequences are serious, making repairs far more expensive than they would otherwise be. However, for these bills to be seriously considered, there needs to be greater clout on the side of these bills; as is, industry interests are going to outweigh consumer interests and kill these bills before they see the light of day.


Farm Drainage Revisited: Will Tile-drain Effluent Be Considered A Point Source and Fall Under Clean Water Act Regulation?

Theodore Harrington, MJLST Managing Editor

For years, nutrients from farming operations have been leaking into the Raccoon and Des Moines Rivers, and ultimately arriving at the mouth of the Mighty Mississippi. These nutrients, most notably nitrate and phosphorus, are the result of both fertilizers and natural crop growth and have deleterious effects on humans and the environment. As these nutrients mix with groundwater just below the surface, a polluted effluent is created. This effluent is then drained through a grid of plastic piping a few feet below the soil.

Nearly two years ago, Des Moines Water Works (DMWW), a public water utility, sued the Drainage Districts in Sac, Buena Vista, and Calhoun Counties to recover monies spent treating the polluted effluent to make it safe for public consumption. Defendants contend that the polluted effluent does not fall under the jurisdiction of the Clean Water Act, and therefore DMWW is the appropriate entity to bear these costs, which approach $7,000 per day!

Where it stands: Summary Judgment briefs were traded in May and June of last year. Since then, oral arguments have been heard by the Iowa Supreme Court since September 14, 2016. (Click HERE to see John Lande arguing for the Board of Water Works and Michael Reck arguing for the counties.) A federal trial in front of Judge Leonard Strand is set for this coming June in the Northern District of Iowa. The trial will come two and a half years after the original filing, and lengthy appeals, possibly to the Supreme Court, are likely to follow. Though it will be years before we have an answer to the question titling this post, the judgment’s consequences will reach beyond individual farms to the heart of the industry.