{"id":2394,"date":"2010-07-27T19:24:55","date_gmt":"2010-07-28T00:24:55","guid":{"rendered":"http:\/\/esr.ibiblio.org\/?p=2394"},"modified":"2010-07-27T19:27:50","modified_gmt":"2010-07-28T00:27:50","slug":"how-not-to-sign-ndas","status":"publish","type":"post","link":"http:\/\/esr.ibiblio.org\/?p=2394","title":{"rendered":"How not to sign NDAs"},"content":{"rendered":"<p>If you&#8217;re any kind of consultant or contract programmer, and you&#8217;re an open-source person, one of the persistent minor (and sometimes not-so-minor) irritations of doing business is NDAs (Non-Disclosure Agreements).  Your client will often want you to sign one.  About 1% of the time they&#8217;re protecting actual business-critical information; the other 99% they&#8217;re suffering from an unfounded delusion that they&#8217;re protecting business-critical information &#8211; but the rigamarole is 100% annoying 100% of the time.  Besides, even if (like me) you consider it a point of personal honor not to blab things you&#8217;ve been told in confidence, you probably have a philosophical objection to being gagged.<\/p>\n<p>I haven&#8217;t signed an NDA in least the last 12 years of active consulting, and over my entire 27 years of such I&#8217;ve maybe signed a grand total of two NDAs, and I&#8217;ll never sign one again.  Herewith, a short course in how to evade them.<\/p>\n<p><!--more--><\/p>\n<p>The general rule is this: set up circumstances where the pain to them from having the NDA exceeds the extent to which they&#8217;re willing to trust you.  Basically, this means that you have to make the NDA have potentially unpleasant legal consequences <em>for them<\/em>.<\/p>\n<p>The best way I know to do this is to be a director or other officer of a corporation, with fiduciary responsibility to the corporation.  You tell them: &#8220;I never sign NDAs because I refuse to end up in a no-win legal situation &#8211; the NDA terms might require me to violate my fiduciary responsibility, or vice-versa.&#8221;  Back when I was a director of VA Linux, this was a nuclear bomb that immediately vaporized all talk of NDAs whenever I brought it up.<\/p>\n<p>Even without a directorship, a variant of this works pretty well.  Tell them you never sign NDAs because you&#8217;ve had other clients in the past and will have more in the future, and you don&#8217;t care to get caught in the no-win situation that an NDA puts you in the gunsights of a nonperformance or honest-services prosecution (or vice-versa).<\/p>\n<p>If they press the point, tell them you&#8217;ll sign that NDA if, and only if, they will sign an agreement indemnifying you against all costs arising from any lawsuit arising from a conflict between the NDA and any future agreements or fiduciary responsibilities you may assume.  That&#8217;ll usually shut them right up; they&#8217;ll set the limited downside risk that you&#8217;ll blab something against a potentially unlimited risk from a big messy civil lawsuit and fold up like cheap cardboard.  <\/p>\n<p>This does mean they have to need you enough so that the soft option isn&#8217;t to say &#8220;No NDA, no business,&#8221; and walk you out the door.  But if they didn&#8217;t need you to cover something nobody in-house can do as effectively, they wouldn&#8217;t be asking for the NDA in the first place. So hang tough about this. Most NDAs are pro-forma, ass-covering gestures to begin with; chances are the person trying to get you to sign one knows this is true about his piece of paper and won&#8217;t fight very hard to defend it.<\/p>\n<p>It&#8217;s always good to point out that you have a reputation to protect, and you&#8217;re not going to injure your client by flapping your lips because if word got around that you did that sort of thing you wouldn&#8217;t have any clients anymore.  Stand on your dignity, point out that you&#8217;re a professional, and sound a bit offended at the suggestion that anyone would be crass enough to doubt your discretion (but don&#8217;t overdo that last part lest it seem like posturing).<\/p>\n<p>This battle is worth winning for reasons other than avoiding legal risk.  It sends a clear message that you are a professional with a backbone and a clear sense of your own worth &#8211; not to be jerked around and chickenshitted at. And that is always a good thing to establish before the job starts.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>If you&#8217;re any kind of consultant or contract programmer, and you&#8217;re an open-source person, one of the persistent minor (and sometimes not-so-minor) irritations of doing business is NDAs (Non-Disclosure Agreements). Your client will often want you to sign one. About 1% of the time they&#8217;re protecting actual business-critical information; the other 99% they&#8217;re suffering from&hellip; <a class=\"more-link\" href=\"http:\/\/esr.ibiblio.org\/?p=2394\">Continue reading <span class=\"screen-reader-text\">How not to sign NDAs<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2394","post","type-post","status-publish","format-standard","hentry","category-general","entry"],"_links":{"self":[{"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=\/wp\/v2\/posts\/2394","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2394"}],"version-history":[{"count":5,"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=\/wp\/v2\/posts\/2394\/revisions"}],"predecessor-version":[{"id":2398,"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=\/wp\/v2\/posts\/2394\/revisions\/2398"}],"wp:attachment":[{"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2394"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2394"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/esr.ibiblio.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2394"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}