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To summarize your argument, you're saying that in practice NDAs are meaningless as a term of your employment contract, so adding an even more onerous and one-sided term, the non-compete is advisable? Contracts are only as good as their enforcement and the honor of those involved in the agreement. If an employee leaves and spreads your trade secrets to your competitor, then you sue them and the competitor, the same as if your competitor hires that employee in violation of a non-compete. The difference here is the NDA is specific, a non-compete is broad. The NDA says not to share your secrets while working at a competitor, the non-compete prevents you from working for the competitor entirely.

Since the secrets aren't yours to share at will, they belong to the company, there's nothing that restricts your freedoms in an NDA. It's more of a covenant than a restriction. You're making a legally enforceable promise to not spread about things you know full well are supposed to be confidential. A non-compete however restricts your freedom of movement in the labor market and directly provides a tool for the employer to coerce your actions in and outside of work. There's a huge difference in consequences and incentives, while the NDA provides sufficient protection for the things that matter in your scenario.

Sorry I wasn't clear on the original comment, how can NDA stop a developer to use what he knows while writing code or creating procedures?

If you are a developer and worked on a code for 2 years. NDA cannot cover what you know what you don't. Your know-how that you captured on that company can simply be replicated in another company. You'll write the code from scratch, and NDA or copyright, or even patent in majority of the cases will not be enough to enforce or stop such a think. In rare cases patent can solve it but do we want all companies to patent everything?

What you're describing isn't "intellectual property", it's experience. The company you work for has no legal claim to your experience. Your experience is a personal asset which has value in the market and is a direct reason why a company hires and compensates you to do that job.

And that's exactly my point. This is why non-compete makes sense. To repeat, because none of the stuff you have mentioned can replace what non-compete provides.

Yes, what non-compete provides is an attempted legal claim on something inherent in you as a person. This is unconscionable.

If you replace "developer" with "general contractor" and "writing code" with "constructing a building", do you believe your argument holds up? How about "doctor" and "practicing medicine"? "Attorney" and "practicing law"? "Salesperson" and "selling effectively"? I could go on.

While employed, a person necessarily learns skills in order to perform their duties; as an employer, it would be impossible to derive value from the worker without training and knowledge transfer. Your argument is that it should be a two-way street until employment is terminated, then it becomes a one-way restriction against the employee. That's not fair to workers and is extremely biased toward the employer.

My argument was about software development and I don't know how much it would hold up for other fields.

Employer pays the time for that employee to acquire the knowledge, employer serves the know-how that the employee might never ever able to learn by herself. How is it not reasonable to expect that knowledge to be used against the employer? Why is it one-way? I'm not talking about knowledge in a sense that "good code should include comment" kind of dev best practice. I'm talking about domain specific know-how that the employer came up with in many years by spending lots of money (R&D, trial & error, field studies etc).

> So how is this good for anyone but John?

How about the consumer/society as a whole who now widely benefits from advanced technology being proliferated through the industry instead of being hoarded by one company?

I agree, but if we want that we should start from demolishing "patents" and many other similar more basic issues first, but we all know why that's not going to happen.

Secondly when you do that, aren't you actually killing commercial research? Why would I spend $10M to research something if one of my employees can just take that know-how and move to my competitor?

>I agree, but if we want that we should start from demolishing "patents" and many other similar more basic issues first, but we all know why that's not going to happen.

It's not going to happen because your logic is off a little.

Patents are there to promote growth to society, not to promote growth of the patent holder. It works because it's set up to be a win-win for both.

If at any point the patent system hurts growth to society, it should be revamped or eliminated.

Patents are not fundamental human rights. Nor are copyrights. They exist to serve the society, not the holder. Once they cease to do so, they should be removed.

So the question is: Do non-competes serve society's interests?

How about no-poaching agreements? They're almost like non-competes.

a) any shrewd company would simply pay key people more – and, indeed, good pay and retention bonuses are common for people who are truly valued by most companies (senior management, top sales people, etc.) but that very rarely includes developers. The fact that many developers self-identify politically with the CEO doesn't mean their boss shares that belief.

b) that company's value is based on a mix of value which they created and where they benefited from prior art. In the former case, copyright law would prevent John from taking source code and patents would prevent him from taking novel work. In the latter, passing on a trained employee is no more unreasonable than it was for them to benefit from the long history of work which they also benefited from without having to pay for it.

IMHO in this scenario the leave is the company's fault for lowballing John for years.

Video encoding tech doesn't change very quickly, and a 3x improvement is huge, so a competitor might well be happy to ask John to take 6 months off and pay him a joining bonus to make up for it. If the improvement is big enough they might pay him to take a couple of years off.

So how long should John be banned from working for a competitor for exactly? 5 years? 10 years? Until his current employer says he can?

What if John leaves and starts an open source project doing the thing he's learned how to do really well? Should he be stopped from writing code in a particular domain as a hobby?

What if John leaves because he's had a brilliant idea that his current employer refuses to listen to? Should John be banned from starting his own competing company? Should an employer be able to restrict an idea from getting to market when they're not using it themselves?

And if an employee came up with some novel way to do something you will own and exploit that IP to potentially produce unlimited gains. The situation is skewed in employers favor even without non-compete.

>So how is this good for anyone but John? If you think this kind of stuff doesn't happen and all this kind of advancements are public domain anyway, you are wrong. There are many niche fields where competing advantage comes from technical excellence and understanding couple of key things better than your competition.

This is good for society, because society gets more competitive labor markets and more competitive video-encoding markets. This encourages the spread of high-quality products and technical knowledge at low prices.

Remember: companies exist to supply a product efficiently. You are not entitled to get rich by rentiering on ideas.

If you want to keep John from working for a competitor, just agree to pay him his salary for two years after he stops working for you, while he goes on vacation around the world. The amount of competition and poaching you want to avoid should be priced in terms of years of salary you're willing to pay in exchange for non-labor.