The Case Against (and for) NDAs

The Case Against (and for) NDAs

Dean is not just a friend. He's family. So, when he asked me to sign an NDA, you'd think that I would either be offended, or that I would just go ahead and sign the thing. For me, it was neither of those things.

An NDA, for the uninitiated, is a Non-Disclosure Agreement. It is a contract between one party and another that is essentially a legal promise not to divulge certain aspects of the relationship between those two parties. If you've ever visited a high-tech organization working on some cool new product, you may have been asked to sign such an agreement. Not only do they not want you to take pictures of the snazzy new phone they're working on, but they also don't want you telling anybody about it either. The NDA, then, is a legal contract that binds you to secrecy.

Companies do this, they will argue, because they do that because there are potentially millions of dollars invested in product development and design, not to mention time, and equally expensive legal issues associated with getting a major product to market. When there's that much at stake, I can wrap my head around that one.

Ditto for issues of national security. When lives are at stake, a legal contract binding you to secrecy makes sense. Governments use NDAs as well.

Another variation on the NDA is a mutual NDA. This one is much easier to define, and for a variety of situations, much easier to swallow. It tends to be more common when small businesses work with other small businesses. This particular species of NDA tends to be rather short of legalese, opting instead for what translates into, "You can't tell anyone about what or how my business works and vice versa."

So why, the question begs, did I have a problem with signing Dean's mutual NDA? Let me issue a trigger warning for my fellow writers out there. The answer, you see, may appear denigrating to our particular field of endeavor. It may even seem like an insult. But here goes. . .

Writing, you see, is no big deal. Let me rephrase that. Ideas are no big deal. In fact, ideas for topics to write about are a dime per proverbial dozen. Everybody has a killer idea about an amazing and utterly unique story or article concept, and everybody is wrong in thinking that it's unique. When people ask, "Where do you get your ideas?", they're asking a question with a frankly mundane answer. You get ideas everywhere because ideas are like dust. They're everywhere and they get into everything. And everyone.

Science fiction author, Harlan Ellison, had a great answer to that question. He claimed he got his ideas in Schenectady. You put a couple of dollars in a self-addressed, stamped envelope and you send it to a post office box in Schenectady. A few days later, they sent you back an idea. It's fun, but you can save your money because, as I mentioned, ideas are everywhere.

The execution of that story or article is another matter. How and what you produce is a unique product that reflects the author's views and interpretation vis-a-vis that not so unique idea, as does the writer's experience, style, voice, technique, and everything else the writer brings to bear in sharing the idea with the public. The idea is not unique. The presentation of the idea is.

There were stories about boy and girl wizards long before J.K. Rowling sat down to write Harry Potter and there were stories about young heroes growing up to fight among rebels against the forces of their evil father long before George Lucas started work on Star Wars. However, the story of Harry Potter is Rowling's story and Luke Skywalker is Lucas'. The idea behind those stories is not unique in any way but the final product, the presentation if you will, is.

I've been writing professionally for almost 25 years now. At no point in that quarter century have I ever signed a non-disclosure agreement for a writing assignment. I don't see the point and, like a lot of things in writing, I see it as a slippery slope down a path that I, as a writer, don't want to see the craft going. Like publications making millions buy taking an author's work and giving them nothing but 'exposure'. Don't get me started on that one.

Even in the case of a big corporation trying to protect its ideas, I'm not completely on board. If they're doing research on a new type of battery that runs on carbon dioxide in the air (yes, I'm making this up), that's pretty out there and I can get behind the need for privacy. If they're just 'working on a battery' or 'a new phone', so what? The idea or a battery or a phone is hardly a new one and I'd like to think it isn't worthy of any NDA.

Then there's the concept of software patents, another topic you don't want to get me started on. Every software package you've ever paid for or downloaded because it was free and open-source software, as with every story you've ever heard of including those about boy wizards, is built upon the work of others. It's incremental and never truly original. It's turtles all the way down.

As a side note, there's already way too much litigation in the world. For most things in life, your word, a little trust, and a handshake should be more than enough. But I digress...

Fellow writers, I'm sorry about this. Really. But none of us has ever come up with a story idea so brilliantly original that we didn't build on the work of someone else. Sure, you put your own spin on it, but that's what makes it original. Not the idea. And so, the magazine you're working with wants you to sign the NDA for this story they want you to work on, to protect them and their other writers. Meanwhile, across town or across the ocean, another editor is asking another writer to write an article or story on the same topic. And you know what? The NDA you signed isn't going to do anything to change it.

Ideas are legion. And they can't be stopped. Not even by an NDA.