Where's Your NDA, man?

by Chuck Toporek

Okay, it's time for me to get on my soapbox for a few minutes...


There are a bunch of people out there right now chatting up and writing about a particular piece of NDA'd software. A classic example is this one over on OSNews.

Now, an NDA is just what it means: Non-Disclosure Agreement. That means, by signing an NDA, or reading one online and agreeing to its terms, you will follow the request of the person or company and keep your yap shut about the software they're about to give you access to. They're allowing you access to their software (yes, their software) for testing purposes, not so you can go off and write articles about it. They're giving you access to their software, and all they're asking for in return is for you to test the software out so you can help them isolate bugs (and report said bugs back to them), with the ultimate goal of trying to make the software better. Oh, and one more thing: To keep quiet about the software they're supplying to you.

They're not giving you access to the software so you can crank out an article, or burn copies for your friends, or post disk images on some P2P site. An NDA is a legally-binding document between you (and only you) and the company who's asking you to sign it. By signing the NDA, you agree not to share the software with anyone else, or to show it to someone else, or to even talk about it.

But violators prevail, and ultimately mess things up for the rest of us tight-lipped ones.

Only bad things will happen from violating an NDA. First, you could find yourself in a buttload of legal trouble. But what's more, you're messing things up for everyone else out there who signs and agrees to the very same NDA you've signed. Those of us who follow the NDA to the letter of the LAW run the risk of being penalized by not gaining access to beta release software in the future.

By violating the NDA, you're essentially giving away the software company's trade secrets. Secrets that their competitors could then use against them, costing God only knows how much in lost revenue, etc.

Remember: Being asked to sign an NDA is a privilege, not a right. If you're asked to agree to an NDA and you feel like you can't keep quiet about what you're about to be given access to, you should just turn around and walk away.

Don't ruin it for the rest of us. Privileges can be revoked for everyone (not just you) at any time.


Off my soapbox now.

What's your feeling on NDAs and those who violate them?


Jonathan Gennick
2003-10-16 11:37:33
Are you sure there was no permission?
Do you know for sure that the article on OSNews was published without Apple's permission? It strikes me as too high-profile a violation to really, in fact, be a violation.
2003-10-16 11:51:52
Are you sure there was no permission?
Absolutely agree on the stance re:NDAs, but the info on the site doesn't seem to be anything that violates their NDA - heck, it's even less in-depth that the stuff that's been posted on O'Reilly.
I think the only thing that may smack of NDA there is the assertation that the person is using the software; but then again, that was publically announced as well.
2003-10-16 12:48:53
re: Are you sure there was no permission?
At the beginning of the article, the author openly admits to getting Panther at the WWDC. You can't get any more open about using NDAd software than that.
Jonathan Gennick
2003-10-16 14:29:10
re: Are you sure there was no permission?
Well, shame on him then, unless Apple came along later and said it was ok to publish the article.
2003-10-16 16:01:17
re: Are you sure there was no permission?
Shame on *her* actually, though possibly not, as while I'm no fan of hers generally, I do know that she has recieved official prereleases to do reviews before (though mainly Linux distribs).

Also: "I was able to try out and preview Mac OS X Panther 10.3 for the past few months after WWDC and for the last few days I am running a latest version."

You could read that as an running an official copy of the GM if you wanted to.

2003-10-16 18:29:14
When does the NDA expire?
What does this particular NDA say about its expiry date? Is it on the product release date or the date when the offical announcement was made? If it's the latter then the reviewer is not breaking the NDA.
2003-10-17 05:25:05
Trade secrets are seldom provided on NDA software
You mention that competitors might gain a competitive advantage if someone who has agreed to a NDA violates it. There are several problems in pursuing that course of action (for both parties in the agreement) but I don't think spying is one of these for beta software. To take the particular NDA that you referred to, all it would take to get the beta software would be join the developer connection of the software publisher (Apple Developer Connection). Now, ADC will surely not block membership to other companies (e.g., Microsoft). Equally, Microsoft MSDN will not prevent other companies from joining their beta program. The spying argument would only apply to NDAs covering alpha software. But in that case, transgressors would most likely lose their job since alpha software is shared between closer parties where the contract has strategic importance for them. In conclusion, I don't think the article you mention raised concerns at Apple.
2003-10-17 06:36:25
re: Are you sure there was no permission?
Well, Apple came along and asked them to remove the screenshots - so it seems Apple has nothing against the article itself.

The specific Panther-NDA in question - does it actually forbid the publishing of reviews?

-- Lars