Originally Published: Friday, 7 April 2000 Author: Jobs Staff
Published to: interact_articles_jobs_ask_staff/Ask the Jobs Staff Page: 1/1 - [Printable]

Ask the Jobs Staff: Those sticky, icky NDA's...

The company I work for has recently asked me to sign a non-disclosure agreement. Being a newer open source developer (less than one year), how does this affect me? Am I able to work on Open Source projects and contribute back to the community without violating this NDA?

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Dear Jobs Staff:

The company I work for has recently asked me to sign a non-disclosure agreement (NDA). I was not really concerned until I read through it. One section declares that any ideas, patents, research, and/or implementations "whether created during working hours or not...that fall under any anticipated fields for [the company] automatically become property [of the company]." Being a newer open source developer (less than one year), how does this affect me? Am I able to work on Open Source projects and contribute back to the community without violating this NDA? Please help.

Sincerely, Matthew

Dear Matthew:

This must be the month for tricky NDA's, but you've brought up a good point. The advice from the last time we tackled the NDA issue still applies: get a lawyer and make sure he or she understands your concerns regarding Open Source. Personally, we feel that although many companies try to get people to sign agreements making everything you do twenty-four hours a day, seven days a week company property, it's not appropriate to do so. Unfortunately, sometimes your choices are to sign or get another job, so you might have to think about that as well.

On the bright side, one of our staff members went through this exact thing with the company they work for. What happened was, all the technical people including developers refused to sign it in its first form. They sat down, discussed the issues they had with it, ran it by a lawyer for more input, and then sat down with the company heads and explained why it was not acceptable.

They pointed out that for most of them, programming or tinkering with computers was their hobby as well as their job, and that many of them either had open-source-type projects they worked on in their spare time, or websites, or other things that could be "related to the business of the company." They all agreed that these should not belong to the company. The way the NDA was worded, pretty much anything they thought of doing at all would be company property, and they felt that it should be more limited to things that were legitimately of interest to the company's "actual or demonstrably anticipated projects." (In other words, things that had been in progress, or discussed as future projects -- not just stuff that the company might all of a sudden decide they were interested in.)

They also pointed out that since much of what they were doing was covered by GPL and other such Open Source licenses, the NDA was ridiculous in many regards, as they were required by law to disclose changes per the licensing in many cases, especially when modifying existing code under such licenses.

The good news is, the company agreed to make almost all of the changes that were requested, and agreed to modify the language of other things that they felt needed to be in there. Truthfully, the company wasn't really interested in the employees' outside work, they were really more interested in protecting company secrets or advantages or innovations from competitors. Once they felt they had secured that, what employees did in their off hours wasn't really of interest to them. Wording was added to the NDA to include projects or innovations "done on company time or with company resources" rather than just anything at all done during the period of employment.

There was also a list of "Prior Innovations" included as an appendix to the NDA. This was where employees could put previous or current projects to make it official that the company would not own these things. You might consider signing it with the condition that similar wording is put in there, and you put any open-source projects you are or intend to be working on under that appendix, to make sure you are protected.

It's still important to get a lawyer, because the way a lot of NDA's are worded, you could get in trouble working on outside open-source projects. The projects themselves probably wouldn't become company property due to licensing, but either the parts that you worked on could be revoked or you could be sued for giving that code away. There are too many legal issues, and we don't really know all of them or what they imply, so you will, unfortunately, have to do some checking yourself.

There are two lessons there: first, solidarity can help, and second, reasonable discussion about what you feel is unacceptable can sometimes get changes made. This may not be the case for you, but see the previous paragraph about working for a company that is so rigid they will not even discuss things like this.

Good luck!





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