The case for banning non-competes

Keep in mind the legal department represents your company, not you. They will tell you the interpretation of the non-compete most favorable to their client. It doesn’t mean it is correct or even enforceable.

That is a shame, and given the extent to which most businesses and groups are built on Open Source, the fact that your situation is not in any way unique (to your employer or at large) is what makes it IMHO much worse.

I ran into technical limitations with my testing framework at one point where I realized that it was going to make my work 10x more complicated if I couldn't simply take some of the common libraries that I had factored out of my apps, and make them public.

You know what I'm saying, the CI machine can't run without a machine account if "bundle install" requires a valid SSH account. Getting the SSH account inside of a Docker container was an exercise of Rube Goldberg proportions, I eventually did it, but doubt strongly I would have ever been able to get anyone else to understand how or why that solution worked.

So I did the rational thing and published a few libraries to simplify the stack. 6 months later, we received a message from the head of InfoSec who was "very disappointed" after looking at our GitHub account.

Nobody competes with us. There was no risk of helping the competition. We're not in the business of software development (though we had an entire department of folks whose job title was Application Developer, so figure that one out...)

Their concern wasn't that it was against an NDA or that we hadn't gotten it approved, it was that threat-actors will take any signal they can about our internal stuff and turn it into an attack vector. Given what specifically it was that we had published, this was beyond irrational. I told them "it's 2020 and this is a backwards position to be holding in 2020." Shine a light, get more eyes on it.

There is no danger and I'm glad that someone looked at my code, I said, even if only for a few minutes – which I know would not have happened at all if we kept the repo internal.

Yeah, I don't work there anymore (not specifically because of this incident, but it was a contributing factor to me leaving voluntarily, without a doubt.)

That would not be a question of competition, but of IP theft.

> And it would be tough to argue that your at-home trading app code is completely uninfluenced by ideas you have at work.

How is that of any relevance? I can have ideas about a better way to wipe my ass at work, is my novel ass-wiping implement competing with the company?

And even if it were, mere competition should not be enough for NCCs to trigger. NCCs should be about unfair advantage owing to the exploitation of sensitive or confidential information.

If they're going to do it at all, and limit cruelty in the equation as much as possible, it should be very limited to directly comparable and competing products (Windows vs MacOS; Google Search vs Bing; consumer desktop operating systems and consumer search as narrow categories), rather than the industry broadly. Most people have a narrow labor specialization and spend their work years building up expertise and reputation in an industry. Any denial of work potential and opportunity that targets an entire industry is akin to labor cruelty and should be viewed as a human rights violation.