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A rash of questions was recently flagged because they were in violation of some "Non-Disclosure Agreement.".

Is it the job of Stack Exchange moderators to enforce these agreements, and delete these posts?

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No, for several reasons. First, Stack Exchange, Inc (hereafter SEI), is not party to such agreements. Second, making any effort to enforce third party agreements may put SEI in a position of being liable for NDA violations it misses. Third, there is no way to determine what is infringing and what is not.

SEI is not party to these agreements

The NDA a developer signs with a company is between the individual and that company. SEI is not part or party to that contract. If the developer violates the contract by posting on SEI's network, they have broken their NDA, however SEI has not broken any contract.

SEI does have a agreement with their users, which states, in part:

Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) ... violates any law or right of any third party, ...

If a user posts confidential information to an SEI network site, the user has violated both the NDA they have with the other party, and the agreement they have with SEI. However, this clause is meant to protect SEI, it doesn't require SEI to act on user infractions. It merely gives them a tool to use in case such an infraction threatens SEI.

No user can sign an NDA on SEI's part, and therefore SEI is not required to act when a user breaks a contract with a third party to which SEI has no part.

Attempts to enforce third party contracts may be unwise

YouTube used to be able to hide behind the "common carrier" defense that could be used to place all copyright and IP liability on the user that posts infringing material. In other words, as long as they acted when notified of infringement, they were protected from being sued directly for damages even though one could make the argument that they made money due to the infringement.

Due to a series of decisions regarding how they wanted to monetize the content, and the agreements they were attempting to enter into with content owners, they eventually started proactively taking down material they felt might infringe on copyright.

It was actually not a good move, although they probably felt it was inevitable if they wanted to continue to profit from it.

They then started being sued with the argument that since they were now policing the material that was posted, they were no longer covered under the common carrier defense, and must accept liability for the material they were providing to others.

In other words, once SEI starts policing the material posted for ANY IP violation, SEI potentially becomes liable for ALL IP violation. Right now SEI can use the defense that their agreement with the users disallows such posting, they quickly respond to takedown notices, and since they are not party to these agreements, then that is all they are required to do.

Unless the moderators are confident that they will be able to enforce all third party NDA agreements, even those they are unaware of, then they shouldn't be in the business of attempting to enforce any of them.

There is no way to determine what is infringing

Unless you are part of the NDA, you cannot possibly know what is covered by it. Further, you can't simply assume that there are only a few NDAs worth protecting. If you start protecting Apple's interests, you're not only going to have to protect Microsoft and Google, but also my clients - both large and small - who have had me sign NDAs to prevent me from spreading their trade secrets.

Even those moderators who may believe they have a good grasp of what the WWDC 2011 NDA agreement is are wrong - some users may not even be under that agreement, may have received information from others not under that agreement, or may have picked apart the public libraries and binaries to obtain their information.

Just because something is a trade secret does not mean that it's illegal to post - as long as the user obtained it legally, they are allowed to post it. At that point, if someone deletes it, it becomes very much like censorship. Suddenly that user must somehow prove to SEI that they are allowed to post it - it becomes a guilty until proven innocent problem.

Conclusion

There are many other reasons why Stack Exchange, Inc should NOT pursue the enforcement of third-party agreements, this is just barely skimming the surface.

If the moderators take action on their own to suppress posts they feel infringe such agreements, they put Stack Exchange, Inc in a very difficult legal position. By default they should NOT be closing or deleting such posts, until Stack Exchange, Inc directs them to do so, and if that's the case I'm quite certain they would receive such notice in no uncertain terms.

If a moderator has any question as to what they should do in these cases, the default answer is to let it alone.

Please be aware that I am not a lawyer, and this is not legal advice. I strongly suggest anyone who has concerns about this consult with a lawyer familiar with online IP infringement.

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protected by Undo Nov 18 '14 at 22:47

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