I am not going to be shy about this. I really hate reading Non-Disclosure Agreements. Sometimes, they are known as NDAs, Confidentiality Agreements, and Mutual Confidentiality Agreements. Whatever guise they are in, they seem to say the same thing in many different ways. If there was a nuance, it's difficult to say what actual impact they have. Yet, we still have to figure it out and review them as necessary. Because somebody probably forgot to put in something that we need. Once they are signed, we move on. In short, a lot of time is spent on NDAs, but nobody cares. 🤢
This kind of dysfunction is ripe for disruption. NDAs are probably one of the most straightforward problems in using AI for contract review. They have a certain structure and a limited set of clauses. You don't need to look far for an example — check NDAlynn. You can even enjoy NDALynn for free if you don't mind your document becoming part of the hivemind.
oneNDA is a different kind of disruptor. It suggests that life would be much easier for everyone if we sat together and agreed on one NDA. If you're curious what that crowdsourced NDA looks like, you can take a look at their website or download it here.
What I liked about oneNDA
- It's short, simple and pretty. At two pages, they have really condensed the document into its finer parts.
- The so-called "variables" only cover about half a page. Agreeing on the details of this document will probably take less than a few minutes. This is probably more substantial than many NDAs I have seen regarding time and costs saved (if that is the only thing you have to agree on).
- It's licensed under CC BY-ND 4.0, a Creative Commons license. So yeah, I can share it here.
What I didn't like about oneNDA
- Choices have been made, and not everyone will agree with them. You can check out their graveyard to read about what they decided to leave out in oneNDA. I can understand why they did it, but that will not stop anyone from adding it back in. You would then have to spend time reviewing it, which defeats the purpose.
- It's licensed with ND (No Derivatives). This means you can't change and then distribute it, including sending it to your counter-party. It's a plausible controversy whether contract clauses can be copyrighted (they obviously can). I guess dictating how the NDA is used can help adoption by building a strong identity. In my view and having some background in open source, I honestly think this ND qualification is unnecessary. I would definitely think twice about these restrictions before using them.
The creators of oneNDA have made a smart decision by aiming first for an NDA that is the simplest — having a commercial discussion. Logically speaking, it's like buttoning your shirt as you prepare for a business meeting. You shouldn't be spending much (if possible, any) lawyer or negotiation time on this sort of agreement. This NDA definitely helps you to reach that conclusion.
However, if you've reviewed enough NDAs, you would know that the arguments which prevent us from having a universal NDA aren't entirely rational. Somebody thinks their template is better, and we are going to have a debate over it. Sometimes it's easier to argue that we should stick to our template than selling a change which sounds like losing our freedoms. Maybe our language has been "tested", and oneNDA hasn't. If I was conservative, having as many clauses in as possible is safer than leaving something out.
Reviewing NDAs is the express route to learning why contracts are dysfunctional.
Finally, there's a problem with NDAs. I first found out when I wrote my own NDA generator. Everyone sort of agrees that NDAs are low hanging fruit, but the reward of solving the problem isn't sweet or worth shouting to management. Nobody cares about NDAs, so nobody cares about the solution. Here lies an important lesson in innovation — some problems just aren't worth solving. The conclusion of my NDA generator was that people nodded at the "proof of concept". Conversely, a letter generator that wasn't particularly complex or legal had a greater impact. They used it more often, and it saved them from learning how to choose a template.
On the other hand, like buttoning a business shirt, it wouldn't impress you if a button was in a different shape, or featured "magnets".
So, while I am a firm supporter of standards, I am not excited about this one. oneNDA is great, but it is just another NDA.
I may not be excited about oneNDA in its current state, but I am more curious about how technically they would implement modules for M&A. I hope it will be a useful tool that provides convenience and simplicity for users, and not just a choose your own NDA. Anything that keeps NDAs away from lawyers will be a boon for the whole process.
For now, count this sceptic out of the hivemind.
Enjoyed this post? You can read more about law or technology on Love.Law.Robots. by subscribing today. I post at least once a week and subscribers get a free members only newsletter. Thank you!