Over the course of my career as a consultant I’ve been party to many sales meetings and negotiations. There’s one theme that’s an ever present thread linking these encounters: the group of documents known as non-x (non-disclosure, non-compete, non-poach, etc). It may be subtle, but behind these documents is paranoia, a fear that someone you are engaging with is out to get you.
I’m sure at some point in the history of industry a service provider took advantage of sensitive information acquired while working with a customer. However, I believe that the world of corporate espionage and intrigue is much smaller than the movies would suggest. I think it especially rare in the world of software products, and at the very least, uncommon among consulting agencies.
The unfortunate side-effect of these documents and their underlying anxiety is that the partnership is damaged. It’s very hard to build trust with someone when they start the relationship by attempting to document all the ways you could injure them. If any such document is necessary it should be something so standardized so as not to have any personalized connection to either party. Further, most of these agreements are unenforcable or so poorly constructed that they would not stand in court or arbitration if tested.
The fundamental reasons I find that these documents frivolous are fourfold:
- The apocryphal story of Facebook’s origin aside, in reality nobody wants your idea, they want their own. Even if they do, there’s nothing you can do to protect it once it’s out in the public eye.
- The value of being “first to market” is an illusion. Consumers have time-and-again tought us that what they really value is community, experience, and service. In many ways, being first can be a handicap.
- It is very likely that your technology is commonplace and easily reproduced. These days, any development team worth their salt is using open source frameworks and well documented techniques. Furthermore, two good engineers will find similar ways to solve problems.
- Lastly, your people, your greatest asset, will be loyal if you treat them well and maintain an agreeable culture. There is no need to defend against someone luring your employees away if they have no desire to leave in the first place.
Protecting ideas, technology, or talent with flimsy contracts seems almost like an admission that you don’t deserve them in the first place and haven’t earned the right to keep them.
It is of course a fantasy to assume that this practice will end any time soon. In the exceedingly litigious society in which we live business will continue to be conducted using linen letterhead and Mont Blancs. I do hope however, that for DevMynd and our clients, we are able to find a way to minimize their necessity. I believe our approach to the process of building software is one that stems from partnership and trust which in hindsight makes heavy contracts seem rather silly.
I look forward to finding new ways to make such contracts a thing of the past and I welcome any insights from the community on how to do so.
