On

The Skinny on NDAs

It is axiomatic that not all knowledge is obvious; in commerce, just as much as in science, information, know-how, and the means and methods by which results are achieved are often the result of extensive work, creative thought, insightful analysis, and laborious trial and error. There would be little incentive in commerce to drive the progress by which information is expensively acquired if it could not be protected: Knowledge itself is powerfully valuable. As important as copyrights and patents are, they do not and were never intended to protect any and all human discoveries. Where the protection of creative works by public copyright law ends, where the protection of inventions by public patent law ends, what remains is the private right to condition disclosure of confidential information by way of enforceable contracts that limit the further disclosure of the information. You might imagine a hypothetical world without enforceable Nondisclosure agreements — but it would be a world that would so discourage the disclosure of confidential information that progress and growth would be practically impossible, with all the risk of loss on those whose work is creative and valuable, but which falls outside those copyright and patent protections.