intellectual-property non-disclosure
Is an excessive NDA legal?
<p>My daughter is a college student and is applying for an internship.
The small "socially conscious" company, which has about 5 or 10 employees,
is asking her to sign an NDA that looks way over the top to me.
Is this the norm these days?
In brief it says ...</p>

<blockquote>
  <p>ALL information disclosed to the other party is Proprietary,
  except generally known information.  There's a long list of specifics:
  marketing techniques, publicity, etc. The agreement lasts until
  mutually terminated, meaning forever since very likely the company
  would never agree to terminate it.</p>
</blockquote>

<p>This NDA includes everything my daughter is supposed to learn there --
marketing, social web development, etc.</p>

<p>Is this the norm these days?</p>

<p>A NDA can <strong>only</strong> cover confidential information, that is information that is not in the public sphere, and that was transmitted to the recipient in confidence, that is it is specifically identifiable information that the recipient knew or should have known from the circumstances of the communication was confidential.</p>

<p>For example, "marketing techniques" are not confidential information although the specific marketing strategy (pricing, promotion etc.) to be employed for a particular group may be confidential if the circumstances of the communication are such that the recipient should have known they were. Telling them "Hey, this marketing strategy is confidential" is best, however, the nature of the communication may make it implicit, for example, if it is only communicated to a subset of employees and contains information that would obviously damage the organisation if made public such as a price or client list.</p>

<p>An NDA that states "all information given is confidential" is probably not enforceable even if exceptions are given because a) it is manifestly untrue (how can the location of the bathrooms or which day is pay day be confidential?) and b) it places an unreasonable burden on the recipient to determine what is and what is not <em>real</em> confidential information.</p>

<p>I would not worry about it too much. It is extremely rare for NDA's to be tested in court unless it is a genuine case of corporate espionage and the information involved has a significant and provable monetary value.</p>

<p>In many cases contracts with crazy terms get thrown out anyway for a variety of reasons. For example: having no fixed dates, attempting to constrain by contract a legal right, lack of compensation or inadequate compensation. You name the legal flaw, there is an NDA out there with that flaw.</p>

<p>Bottom line here is that there is very little legal risk associated with most NDAs.</p>
