I wrote an article published in Edge Magazine several years ago, but the concepts and thinking about video game industry NDAs still applies. That article can be found at: [url="http://www.edge-online.com/features/curse-nda/."]http://www.edge-onli...res/curse-nda/.[/url] I'll also try to repost it on my site ([url="http://dlr-law.com/writings--pubs.html"]http://dlr-law.com/writings--pubs.html[/url]) but no promises.
That said, you should always keep in mind that an NDA is a contract, nothing more and nothing less. If you're on the receiving end, you need to take care in considering each and every promise that you're making. While NDA lawsuits in our industry are not all that common, the potential for one is still there. So take care in what you sign.
Over the years, I've come across a lot of misconceptions about just what an NDA is and why is is of use. In previous articles I've written about the concepts behind copyright and the fact that an idea is not protectable under US copyright law. On the other hand, "trade secrets" can be protected, even when they are in the form of an idea, if, for example, it that idea gives a particular business some sort of advantage. In that case, the lawsuit would involve what is called interference with a prospective business advantage. Here the NDA would be of value.
Where a lot of businesses get off track is in thinking that their NDA will protect their cool game idea, but they fail to consider that they may not have the resources to effect a lawsuit necessary to enforce it. In practicality, one must consider not only the purpose of the NDA, and whether you have the resources to enforce or provide a defense against it.
Finally, keep in mind that NDAs come in all shapes and sizes. You don't necessarily have to settle for what is proposed and are free to make changes, as you would in any other contract negotiation. If you've every dealt with Hollywood studios, you'll know that their NDAs are often one way, take-it-or-leave-it agreements. In these situations, you need to decide 1) can I keep the promises they are asking; 2) if I can't what will happen; 3) do I have any room to negotiate. Rarely will you be sorry that you've at least tried to better the agreement in your favor.
As always, the information contained in this post is not legal advice and you should not rely on it for that purpose. The sole intention of this post is commentary only.