non·dis·clo·sure a·gree·ment (noun)
- A legal agreement between two or more parties to confidentially share information.
- One of the most overused pieces of legal documentation in the modern age of entrepreneurship.
Let me explain.
Say for example I’m approached by Person X to talk about “an opportunity.”
Hypothetical Me is fine with this! Hypothetical Me loves opportunities! Plus, I hypothetically have time to burn. But there’s a small problem; Person X is worried that the idea will be stolen, and wants an agreement to make sure that the opportunity is kept secret.
Already the process is halted. Papers are required to be signed, notarized, and agreed upon. Emails are appended with confidentiallity reminders. Fax machines are even supposedly used.
At this point during the hypothetical it should be reminded that I am still yet to be hired. All of this fanfare is for the simple privelege of talking about an idea. In fact, neither business nor payment is guaranteed, and it’s uncertain whether or not the actual employment will be under the NDA as well, which causes worrying shadows and frustrating questions.
What if during the NDA, and other opportunities pass me by as a result? Can I tell Person Y that I can’t help them with Opportunity Y because I’m talking to Person X? What about neutral skills I learn while building something under an NDA? Can such skills be used afterwards, even if they are used in a completely different context? After my clandestine work is finished, what guarantee do I have that payment will even be given for services rendered? Will the NDA have to be violated if I am required to pursue them for payment? What will the be legal backlash of that?
Person X is not obligated to answer these questions. And to be honest, some of them don’t need to be. The answers are obvious enough with some legal council and quick googling. The undertone of our conversations are already beleaguered with the real message an NDA sends. Person X doesn’t trust me.
Stepping out of the hypothetical now, I should state that I focus on making small digital interactive experiences for a living. That much is obvious from any resume you probably found online. I don’t have arcane knowledge of missile designs, security systems, ebola strains, or state secrets.
If you’re considering an NDA while conducting business, keep the following thoughts in mind.
- The odds that the thing you’re trying to do doesn’t already exist elsewhere, in whole or in parts, is pragmatically zero.
- The odds that what you’re using a proprietary technique or algorithm that has been undiscovered is also pragmatically zero.
- If you are using a technique or algorithm that you actually made yourself, good! You should patent it. That’s what patents are for.
- If you think I might steal your idea after I help you make it, or otherwise exploit the exploit you found. Why do you want to work with me? Good business is about trust. Bad businesses need contracts like NDAs. Which brings me to my final point:
- If you’re trying to do something that might not actually be legal, or involve cronyism-like, inside agreements, then I don’t want to work for you. If you’re open for business, then that business should be as open as possible.
To be fair, there is one case I can see an NDA being considered; you have a special technique or business advantage that cannot be patentable in some way. A rare idea you want made real. Fine, but even that still falls into a fallacy. Ideas aren’t the hard part. Making an idea real is the hard part.
Don’t get me wrong, I’m all for you having a “secret sauce,” but the odds your sauce is actually worth keeping secret, or secret at all, is close to none. The age of KFC’s eleven secret herbs and spices is long past.
Example. The algorithm that made Google fabulously rich was already public knowledge for over half a century, they simply applied it to a distributed database structure. Google Herself even published a famous paper on the algorithm, and was then even publically copied by then-big/still-big companies like Apache. Point is: Someone knowing about your idea, or even making their version of it, won’t be a threat.
Now I want to talk about William Sealy Gosset, briefly.
William Sealy Gosset was a chemist and statistician working for Guinness in the early 1900s. During his time there and also during academic sabbatical he developed a statistical test, a t-distribution, which greatly improved the speed of tests of whether two samples of data were considerably different. Now statistics can be and are used pretty much everywhere. Medical treatment tests in health, material fault tolerance tests in engineering, even I have brushed by t-distributions with my AI research in college. Gosset’s t-distribution was going to be a grand contribution to all of it.
Unfortunately, Claude Guinness had a policy legally in place forbidding his statisticians from publishing anything during employment at Guinness, or even mentioning that they worked for Guinness. This was due to concerns that Guinness’s buisiness rivals might hire their own statisticians, resulting in the loss of their competitive edge. History lacks the details, but Gosset eventually published his findings under the pseudonym“Student”. The paper, once published, spread rapidly through the Statistics community and is still used today. Using the pseudonym.
I’m definitely not Gosset, not by a long shot, but something that is definitely true of me is that I make my living nowadays by word of mouth. Mostly my mouth. And to close my mouth from talking about the work I have done is to hinder me financially and to literally discredit me.
To reiterate:NDAs are insulting to use, waste time, and hinder developers such as myself to continue making a living outside of it. I hope that what I do is important, sure. But be realistic, what secrets are you really keeping, and why don’t you think I would keep them?
Don’t wrap an idea in NDAs to massage its importance. I put pixels on screens for a living, and on my good days they’re in all the right places and I get to show people that I did.
I don’t need NDAs, and if you’re talking to me about one then odds are neither do you.