NDAs: One Tight, One Loose

Ideas are certainly a coin of the internet business realm, if not the only specie, and so it’s natural that makers and marketers want to claim and protect them. Since there’s no copyright in ideas, corporations are careful to require strict non-disclosure agreements from those whom they employ or with whom they do a certain business, relying on secrecy (and prompt NDA enforcement) to protect a notion until it can be matured to a patentable or copyright-able form. Apple, for instance, imposed a NDA obligation on anyone who wanted access to that company’s iPhone operating system data in order to develop an application for it and even went so far as to prevent developers from taking part in conferences or blogging about matters touching on or close to their iPhone work. This super-strict NDA had developers working in silos, unable to avail themselves of the help of their peers in the way that they were typically used to. Finally it became too restrictive to be tolerated and the complaints became too many and too loud; and Apple relented:

To Our Developers

We have decided to drop the non-disclosure agreement (NDA) for released iPhone software.

We put the NDA in place because the iPhone OS includes many Apple inventions and innovations that we would like to protect, so that others don’t steal our work. It has happened before. While we have filed for hundreds of patents on iPhone technology, the NDA added yet another level of protection. We put it in place as one more way to help protect the iPhone from being ripped off by others.

However, the NDA has created too much of a burden on developers, authors and others interested in helping further the iPhone’s success, so we are dropping it for released software. Developers will receive a new agreement without an NDA covering released software within a week or so. Please note that unreleased software and features will remain under NDA until they are released.

Of course, not all nifty notions occur in a corporate context.

You may get your next epiphany while brushing your teeth or pulling out weeds. But maybe it’s a crazy idea, impractical, already in place somewhere else. Whom can you safely tell, once you’ve tried to explain it to your spouse? Well, a friend, of course. A friend would never steal an idea. A friend would respect a confidence. Surely.

Trust may be your middle name, in which case what Rands proposes (albeit tongue in cheek) is not for you. He calls it a “FriendDA,” and describes it as “slightly more than a hearty handshake.” The idea is your friends and you all know the content of the agreement, and as you’re about to reveal your latest inspiration you preface it with “FriendDA?” and when your buddy nods, you tell all. It’s a short and unlawyerlike contract, and I’ve reproduced it below, having agreed to no restrictions on my freedom to disclose:

FriendDA

This agreement is entered into this ___ day of ___ 20__ by and between _____________ (hereinafter “The Advisor”) and _____________ (hereinafter “The Keeper of the Idea” or “I”) regarding information The Keeper of The Idea is choosing to share with The Advisor (hereinafter “The Idea”).

WHEREAS I possess a bright idea that I am choosing to disclose to you, The Advisor, with the mutual understanding that you are my friend and that you will not screw me.

Manners of screwing include, but are not limited to:

Adapting some or all of The Idea for your own purposes.
Choosing to share some or all of The Idea with those who are not bound to this agreement.
Failing to do your best to protect The Idea.
This is a “warm blanket” agreement with which, by requesting your agreement to it, I am helping myself sleep at night by placing a small amount of formality on the sharing of The Idea. I believe The Idea will only improve as a result of having solicited your honest and clear feedback.

Term
The term of this agreement shall continue until The Idea is no longer confidential.

Breach
This agreement has absolutely no legal binding. However, upon breach or violation of the agreement, I will feel free to do any of the following:

Curse you under my breath.
Publicly disclose the manner of your screw-i-tude.
Write about your transgressions in ALL CAPS.
No longer consider you a person with whom I can share my ideas.
Sharing
Sharing of some or all of The Idea with third parties may occur provided that you have cleared this with me and the third parties agree to the principles of the FriendDA.

Termination
Termination of this FriendDA can be executed by either parties, but don’t be a douche.

You are acknowledging and agreeing to this disclosure by reading it. If you find any part of this agreement uncomfortable or confusing, don’t sweat it. We’ll talk about something else.

version .7 — (c) 2008 Rands