Buy new:
$13.77$13.77
Arrives:
Monday, July 31
Ships from: Amazon.com Sold by: Amazon.com
Buy used: $5.25
Download the free Kindle app and start reading Kindle books instantly on your smartphone, tablet, or computer - no Kindle device required. Learn more
Read instantly on your browser with Kindle for Web.
Using your mobile phone camera - scan the code below and download the Kindle app.
Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding Hardcover – September 30, 2013
| Price | New from | Used from |
|
Audible Audiobook, Unabridged
"Please retry" |
$0.00
| $7.95 with discounted Audible membership | |
- Kindle
$14.53 Read with Our Free App -
Audiobook
$0.00 Free with your 3-Month Audible trial - Hardcover
$13.7716 Used from $1.25 12 New from $9.78
Purchase options and add-ons
- Print length278 pages
- LanguageEnglish
- PublisherYale University Press
- Publication dateSeptember 30, 2013
- Dimensions9.54 x 6.43 x 1 inches
- ISBN-100300166273
- ISBN-13978-0300166279
Editorial Reviews
Review
"By combining rigorous academic work and charming storytelling, Orly Lobel has written a book that is interesting and valuable for anyone interested in understanding innovation as well as becoming more innovative."—Tal Ben-Shahar, author of Choose the Life You Want and Happier
"Orly Lobel’s powerful message—set human talent free—will change the way entrepreneurs and policymakers think about creative advancements. Talent Wants to Be Free is a how-to guide for economic growth in the twenty-first century."—Jason Mazzone, author of Copyfraud and Other Abuses of Intellectual Property Law
"Professor Lobel’s father wisely advised her, “If you want something, give it away.” Now, she has given all of us a profound gift: a provocative and compelling argument that we should abandon our obsession with controlling ideas and expertise. She draws on research in decision science, behavioral economics, psychology, law, philosophy, and game theory—including much of her own original research —to show the benefits of making talent free. Talent Wants to Be Free is filled with fascinating ideas about how people and skills become depleted when they are monopolized, and is a must read for anyone interested in the ongoing debate about technology, human capital, and innovation."—Frank Partnoy, author of Wait and The Match King
“What promotes innovation and fairness—intellectual property rights and restrictions on employees moving from one company to another—or free flow of information and people? Especially as technology rewrites rules and expectations, anyone interested in promoting innovation should read Orly Lobel’s powerful analysis that combines lessons from practice, insights from law, and provocative ideas from across the globe.” - Martha Minow, Dean of Harvard Law School and author of Partners, Not Rivals and Not Only for Myself
"In this fascinating and accessible book, Orly Lobel argues persuasively that firms innovate best not by controlling human capital, but by setting their most creative employees free -- even if this means losing them." - Christopher Jon Sprigman, Class of 1963 Research Professor, University of Virginia School of Law, author of The Knockoff Economy and Freakonomics blog contributor
"A compelling argument for a new set of attitudes toward human capital that will sharpen our competitive edge and fuel the creative sparks in any environment.” – PUBLISHERS WEEKLY
“Don’t Miss. To hold on to their top talent and protect proprietary information, firms routinely require employees to sign noncompete and nondisclosure contracts. But that's the road to economic stagnation, writes Orly Lobel of the University of San Diego in Talent Wants to Be Free. Evidence suggests that companies will have better luck with R&D when high turnover allows knowledgeable employees to move freely within their industries…Lobel calls this being smarter about "human capital strategies." We say it's the 21st-century way of teaching business.” – Biz Ed Magazine
About the Author
Excerpt. © Reprinted by permission. All rights reserved.
Talent Wants to Be Free
WHY WE SHOULD LEARN TO LOVE LEAKS, RAIDS, AND FREE RIDING
By ORLY LOBELYale UNIVERSITY PRESS
Copyright © 2013 Orly LobelAll rights reserved.
ISBN: 978-0-300-16627-9
Contents
Acknowledgments............................................................ixIntroduction: Control Is a Double-Edged Sword..............................1PART ONE: THE HUMAN CAPITAL PRIORITY.......................................111 The Talent Wars..........................................................132 Innovation's Edge........................................................27PART TWO: CHOOSE YOUR BATTLES..............................................473 Noncompete—Compete!......................................................494 Competition and the Miracle of Place.....................................765 Top Secret—Not Secret!...................................................986 Sharing and the Miracle of Cognitive Freedoms............................1217 Mine—Yours (or Ours).....................................................1418 Ownership and the Miracle of Innovation Motivation.......................170PART THREE: THE TALENT COMMONS.............................................1979 Talent Wars and the Entrepreneurial Spirit...............................19910 Win–Win–Win.............................................................218Notes......................................................................245Index......................................................................268CHAPTER 1
The Talent Wars
For a serial kidnapper, [the government headhunter] Philip Yeo looksharmless enough. But to hear some people tell it, he's a dangerous man.Over the past six years, Yeo has been roaming the world, trailing talentedscientists in Washington; San Diego; Palo Alto, Calif.; Edinburgh andelsewhere, and spiriting them back to his home country of Singapore.
—Time magazine
THE BALANCE OF THE BRAINS
"TALENT HAS BECOME the world's most sought-after commodity,"declared the Economist in 2006. Since then, the war to acquire talent hasbecome even fiercer. As the workplace has changed, the global economiclandscape has flattened. In the not-so-distant past, the developing world,including China, India, Brazil, Eastern Europe, and the Persian Gulfcountries, supplied cheap labor, while North America and a handful ofEuropean countries dominated the high-end labor market. But notanymore! The so-called Third World is catching up and presentingunprecedented challenges and competition. One indication of thesechanges is that, despite past traditions of lifetime employment andworker loyalty, the "stick rate"—the length of time hired candidates stay attheir jobs—is now lower in Asia than in the United States and Europe.
Like venture capitalists (or vulture capitalists, as some managersperceive them when these investors are poaching their best workers),countries around the world are engaged in intense efforts to draw talent.Singapore, a rising high-tech hub in the global arena, has an internationaltalent division within the government charged with finding ways to attractthe most highly qualified people from abroad. Philip Yeo, characterized asthe "serial kidnapper," heads Singapore's international talent division.More than a headhunter, Yeo prefers to describe himself as "a peoplesnatcher." In an interview Yeo describes the changes in the Americanmarket atmosphere which help Singapore lure talent: "In the past,America was like a Golden Mountain. Now it is very forbidding. Everyforeigner is a threat, and the whole atmosphere is changing." In his bookInnovation Nation John Kao calls for more attention to "the art of seduction"in global competition. According to Kao, talent is being lured toup-and-coming regions at alarming rates. New competition from Europeand the East has led the sociologist Richard Florida to sound similarlysevere warnings about the United States becoming "a second-rateeconomy that cannot deliver economic opportunities for the vast majorityof its people or the social welfare of Western European countries." And allthe warnings point to one country that seems to be leaping forward tosoon take over the lead as the world's strongest economy—China.
In January 2011 President Obama evoked the image of a new ColdWar. As in 1957, when the Soviet Union launched the first earth-orbitingsatellite, Sputnik, the United States now risks watching passively as a newempire, China, slowly but steadily becomes the dominant superpower inthe global economy. Obama warned that China has "the fastest trains andthe fastest computers in the world." And estimates abound that in just afew years other countries, not only China, will surpass the United Statesin vital technological fields. To catch up and take the lead, the UnitedStates must become more innovative in every field. The day after Obamamade his remarks then Senator John Kerry reiterated and elaborated onthe meaning of using the historical iconic image of the Soviet Sputnik forthe twenty-first-century challenge of innovation: "We need R-and-D; weneed science, technology, engineering, and math. We need to kickAmerica into gear. This is our Sputnik moment. We've sort of seenSputnik going across the sky, but we've done nothing similar to what wedid in the 1960s to respond to it."
The Cold War's balance of power focused on a nuclear arms race, butmodern international competition focuses on talent. And it is not justhigh-tech, biotech, and information markets that simmer with nationaland international movement. In The Flight of the Creative Class Floridawarns that the nation's talent base is weakening in every field of thesciences, art, and economics ventures. Although American universitiesdraw talented foreign students, many no longer seek to stay and work inthe American market. According to the National Science Foundation,about half of the doctorate degree holders currently working in the UnitedStates in the fields of science, engineering, and computer technology areforeign born. Yet now we can no longer rely on the best of the best stayingin the country as they begin their professional careers. In a dark ending tohis latest book, The Reset Economy, Florida gives even stronger warnings:"We can then expect an ever-increasing malaise and depression in ourR&D laboratories, ennui and apathy in our factories, and increased crimein our streets." Other authors, such as Amy Chua in her controversialBattle Hymn of the Tiger Mother, have further played into our fears of thenew Sputnik-like rivalry with China to promote their tough-love style ofparenting and careering. In her book Chua maintains that the Chineseparent their children in ways superior to those of Western parents, leadingto a clear competitive advantage in the race for academic and professionalsuccess. In reality, the prognosis is not as grim as that of Florida, and theright cure is not as radical as that of Chua. Western parents certainly neednot concede that they have become, in the words of the former governorof Pennsylvania Ed Rendell, "a nation of wusses." But there is truth in thenotion that the United States is losing its competitive edge. Parenting in acertain style or churning out ten thousand extra doctoral graduates a yearis not the way to regain our edge. Rather, our focus must be on the talentpool and our ability as businesses and as a society to nurture it.
OUR NEW SPUTNIK MOMENT
We all recognize that human capital and knowledge have become thedominant assets of the twenty-first century. But we have not yet figuredout how to reconcile the key need for talent with the new realities ofmarket competition. Companies must rely on strong, innovative peopleto maintain their edge, and workers must rely on their ability to changeemployers to remain in the labor force. We move among jobs far morefrequently than we did just a decade ago, and most of us don't expect tostay at the same workplace for more than three or four years. More thanthat, the movement between jobs does not occur at random. Inventors ofmore valuable patents are more likely to move. A recent study finds thatin many competitive industries one in three employees is approached byother firms attempting to recruit him away from his current job. ThomasEdison once modestly claimed that inventive genius is "99% perspirationand 1% inspiration." Yet the intensity of competitive bidding for superstarsin every market suggests that we believe talent is rare enough forbusiness competitors to launch a full-on war to attain it. Companies willgo so far in their efforts to collect talent as to acquire start-ups for multimillionsof dollars only to discard the purchased product and absorb theacquired team of people.
President Obama previously invoked the image of the Soviet Sputnikand the new race for innovation in a speech at the Forsyth TechnicalCommunity College in Winston-Salem, North Carolina, on December 6,2010. He explained that he chose to speak at the tech college because itprovides everyone, from high school graduates to laid-off autoworkers,new skills that enable them to work in the industries of the future. Thepattern is set: re-skilling, moving to new jobs, and nurturing talent for theindustries of the future. Today's market expectations, however, are intension. While there is no longer job security, there is far more relianceon talent. This is our new Sputnik moment, but we have yet to understandhow to get our talent rocket into space. The problem is that we'vebeen focusing only on part of the picture. We're debating parenting stylesand internal management styles, and we're thinking about colleges andtraining centers. But we have yet to think of ways to generate talent poolsand then sustain them at the very core of economic production: withinthe market itself. Not just before entering the market or during juncturesbut over the course of lifelong careers, the key is that we need to understandhow to fight over talent in lasting and productive ways.
LESS SECURITY, MORE TALENT
During the late twentieth century, as mass manufacturing was rapidlybeing transplanted to less costly facilities overseas, the United States andother developed countries experienced dramatic shifts in the way peoplework. We began focusing on specialization and advanced technologycoupled with higher expectations of skill and adaptability to change. Asindustries came to rely on constant innovation and change to remaincompetitive, they transformed our expectations about employmentlongevity. During the industrial era, work relations were based on a socialcontract that promised secure, long-term, and full-time work. Promotionwas internal, which assured long-term job security and progressiveseniority-based compensation structures. At companies like Ford Motors,the iconic industrial-era company, workers expected to begin and endtheir adult working lives with the same employer. The postwar NewDealers relied on these assumptions of lifetime employment as they instituteda regime of collective bargaining through unions. Job security andstability continued to be the gold standard of employment until quiterecently. IBM, one of the first megacompanies of the high-tech industry,was originally built on the same concepts of loyalty and long-termcommitment as earlier industrial companies like Ford. So when IBMbegan laying off its employees in the early 1990s, it signaled a dramaticground shift. The old expectations of long-term employment becameapparent in the anger of IBM workers: "To be an IBM executive was tohave great significance. 'We were part of a great big family,' said JohnYoung, a tall, broad-shouldered man of 52. 'The manager was a fatherfigure. In exchange, workers put in long hours and the spouses dutifullydid their part.'" When asked about the layoffs, John's wife described a"sense of great betrayal." In the two decades since IBM's startling layoffs,a new model of flexible relationships between employers and theiremployees has become the new gold standard for organizing work.
Boundaryless is the new buzzword of the modern work model, signifyingthe rapid movement of workers from job to job. Workers can nolonger expect to stay at the same worksite or with the same employer formore than a short period of their work cycle. Production is itselfunbounded in the sense that it now occurs over long chains of subsidiaries,each step often taking place in a number of countries around theworld. As businesses seek more flexibility in their hiring and productionpractices, they contract with employment agencies, themselves a boomingindustry dedicated to serving as intermediaries in the placement andrecruitment of workers. Until recently we had two distinct circles ofemployees: the core insiders, working for large, stable firms, and theoutsiders, part-time, temporary, seasonal, or simply atypical workers. Theoutsiders formed a secondary labor market typically employed in low-wage,low-skill, unstable jobs that disproportionately included minorities,women, and immigrants. These were the workers that were also morelikely to be leased employees, working temporarily through an employmentagency. Nowadays, insiders and outsiders mean something verydifferent. Almost a third of all workers today do not follow the traditionalfull-time, permanent employee status. Even in established high-techcompanies such as Microsoft, approximately one-third of the workforce isleased or employed as temporary employees or independent consultants.In short, the atypical worker of the past, the part-time, temporary, leased,and subcontracted worker, is becoming the twenty-first century's typicalworker. The lines between insiders and outsiders have collapsed. Mostimportant, even if you are a full-time employee hired directly by a largecompany, the likelihood that you will switch jobs within the next few yearsis high. From high-tech to entertainment, from services to sales, skilledworkers are growing accustomed to moving between various short-termjobs.
"A MIND THAT'S WEAK AND A BACK THAT'S STRONG"
Winston Churchill predicted in a prophetic speech at an assembly in1943 that "the empires of the future will be empires of the mind."Churchill's words resonate with what we expect today from the talent weemploy; innovation must happen everywhere and depends on inspiredpeople. A specialized research setting and the shop floor of a factory canboth become creativity nurseries, but "empires of the mind" don't justhappen by accident. Our ability to fan the sparks of productivity andcreativity into raging fires of productivity and creativity depends on ourability to support these empires and thereby help workers reach theirpotential.
The recognition that we need to cultivate our workers' creativity hasbrought us to a startling point in history because for a long time mostwork was not conceptualized as being creative. It is illuminating to lookback on how our expectations of our labor force have changed. Throughoutthe industrial era of the nineteenth and early twentieth centuries workerswere not expected to invent, innovate, or be creative; they were expected tomanufacture a widget and package it. As a result, work environmentswere not at all conducive to enhancing innovative capacities. Theprevailing image of the worker was captured in lyrics by the countrysinger and songwriter Merle Travis describing the woes of his fellow coalminers: "Some people say a man is made out of mud/A poor man's madeout of muscle and blood/Muscle and blood, skin and bones/A mind that'sweak and a back that's strong."
Even further back, in the eighteenth and early nineteenth centuries,the imagery of workers resembled one of dependent children. Theyserved their employers for a prolonged and in some cases involuntaryperiod of time. Historians of this preindustrial era describe employmentas being akin to family relations since employees often worked theirentire adult lives for one employer. Status (work status and social status)was fixed and defined the entirety of work relations. In the legal world,rules about work were given a very appropriate title: master–servant law.Obedience was the iron rule. In return for obedience the master had anobligation to care for the worker's basic needs, including food and shelter.At the same time, although obedience was the rule, because of the morecontained nature of early agriculture and artisan production, in which anentire product was made in the confines of one place, the actual workdaywas often less controlled than the industrial workday. The shift to massindustrialization during the late nineteenth century profoundly transformedthe labor market. Work began to convert rapidly from small-scaleproduction to large-scale manufacturing. The rise of commerce alsoproduced increasingly complex employment relations. Layers of managerialand supervisory positions were invented and staffed; hierarchies werebuilt. Now organized in large assembly-line factories, work became moreand more impersonal. The modern corporation became the prevalentform of economic organization. By the early twentieth century, we haddeveloped into what the historian Raymond Hogler terms "the Era ofManagement." In the Era of Management industrial production wascentrally controlled, meticulously organized, and strictly supervised.
Henry Ford, the father of the Era of Management (or Fordism),implemented great control over the workers of the Ford Motor Company:rows of uniformed laborers performed identical movements in his automobileassembly line. Under his leadership, the auto industry became theepitome of the industrial era. As in Travis's somber ballad, the paternalisticimage of the industrial worker was that of an individual with "a mindthat's weak and a back that's strong." Leaders of the industrial revolutionbelieved that the best way to define jobs was strictly and narrowly. Workon the assembly line at the Ford Corporation was standardized andisolated with clearly defined hierarchies. Men would punch in at precisely8 a.m. and, except for their designated breaks, stand at their post for ninehours. Assembly-line production was as revolutionary as it was central tothe auto industry's ability to mass-produce affordable cars. Instead ofworkers working together as a team of skilled manufacturers building acomplete car from beginning to end, Ford introduced the idea of the carcoming to the worker: the worker remains at his fixed line location andperforms the same task over and over. Such compartmentalization ofroles was applied even across company departments, discouraging interactionamong coworkers. Frederick Taylor, the father of the earlytwentieth-century theory of scientific management (or Taylorism),provided the academic backing to Ford's practical reforms. Taylor believedthat groups of people working together were less efficient than individuated,autonomous workers. According to his theory, managerial planningof the production must be strictly monitored from top to bottom.Tasks should be so specified and production steps broken down so finelyas to eliminate the need for workers to think. Applying Taylor's scientificmanagement theory, managers were trained to use time and motionstudies, which measured the exact performance pavement and movementof an average worker, to develop the rules of performance for eachstep of assembly-line production. The ideal worker of the era was anunskilled cog in a machine, robotically performing the same task as efficientlyas possible.
(Continues...)Excerpted from Talent Wants to Be Free by ORLY LOBEL. Copyright © 2013 Orly Lobel. Excerpted by permission of Yale UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Product details
- Publisher : Yale University Press; Illustrated edition (September 30, 2013)
- Language : English
- Hardcover : 278 pages
- ISBN-10 : 0300166273
- ISBN-13 : 978-0300166279
- Item Weight : 1.25 pounds
- Dimensions : 9.54 x 6.43 x 1 inches
- Best Sellers Rank: #2,751,265 in Books (See Top 100 in Books)
- #222 in Patent Law
- #1,214 in Free Enterprise & Capitalism
- #3,733 in Company Business Profiles (Books)
- Customer Reviews:
About the author

Orly Lobel is the Warren Distinguished Professor of Law at the University of San Diego, the founding director of the Center for Employment and Labor Policy (CELP), and the award-winning author several books and numerous articles. She is a prolific speaker, commentators and scholar who travels the world with an impact on policy and industry. A graduate of Tel-Aviv University and Harvard Law School, Lobel clerked on the Israeli Supreme Court and is a member of the American Law Institute. She has recently been named as one of the most cited legal scholars in the country. She has received several grants for her scholarship including most recently a grant from the AI and Humanities Project. Her books You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side (Norton 2018) - now being developed into a mini-series - and Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids and Free Riding (Yale University Press 2013), are the recipient of several prestigious awards and have been reviewed in top scholarly and popular media, including The New Yorker, the Financial Times and the Wall Street Journal. Lobel was invited to Washington DC to present her research on talent mobility at the White House, a meeting which resulted in a presidential call for action. In 2020 she was the keynote speaker and advisor to the Federal Trade Commission on labor market competition policy. She continues to advise to current administration on competition, trade secrecy, and labor policy. Lobel is also a regular consultant to major tech platforms on how ethical digitization. She is a beloved teacher and mentor and has been recognized by her students for as a Woman of Impact and a Woman of Valor. Her new book The Equality Machine: Harnessing Tomorrow’s Technologies for a Brighter, More Inclusive Future is out this Fall with PublicAffairs and has already received raving reviews. She lives in La Jolla California with her husband, three daughters, and an English Labrador named Gili.
Customer reviews
Customer Reviews, including Product Star Ratings help customers to learn more about the product and decide whether it is the right product for them.
To calculate the overall star rating and percentage breakdown by star, we don’t use a simple average. Instead, our system considers things like how recent a review is and if the reviewer bought the item on Amazon. It also analyzed reviews to verify trustworthiness.
Learn more how customers reviews work on Amazon-
Top reviews
Top reviews from the United States
There was a problem filtering reviews right now. Please try again later.
(Before going further, I should point out that I practiced law in Silicon Valley for 37 years, handling hundreds of trade secret disputes, publishing books and teaching the subject at law schools. Also, this review represents my personal opinion and is in no way connected with my current work or employer.)
The most troublesome flaw in "Talent Want to be Free" is that the author frequently conflates non-compete agreements with two other very common forms of restraints: confidentiality (or nondisclosure) agreements and employee invention assignments. There is a world of difference between the first one and the other two, and they typically are not joined in a single document. Non-competes stop someone from taking a job with a competitor, and their use is restricted in many places and illegal in a few, like California. Nondisclosure contracts (NDAs), however, are universally seen as appropriate to define the scope of a confidential relationship, and normally cause no problems with later employment. Similarly, assignment agreements provide clarity of expectation for employers and their inventive employees. Both NDAs and assignment agreements generally leave employees free to leave and work wherever they want. But Professor Lobel regularly mashes together all three types of agreements as "human capital controls" when arguing that they don't work and that businesses should stop using them.
In this sense, the book misses an opportunity to focus on the distinctive and serious problems of non-compete agreements, which truly can "restrict careers and connections that are born between people." But it's not right to put NDAs and assignments in the same box with non-competes. The heavy, somewhat clumsy prohibition against future employment is different not only in its effect on the employee but also in the greater challenge of justifying it. Confidentiality agreements, in contrast, merely restrain use of special information that the employee gets access to by virtue of a trusted relationship. By enforcing such agreements, the law promotes a basic principle of commercial ethics, and the burden on the employee is relatively light. (It is surprising, by the way, that Professor Lobel never mentions this ethical mooring of trade secret law, or the U.S. Supreme Court case, Kewanee v. Bicron, that explains it.) The same is true for the normal invention assignment, which simply clarifies by contract the idea that creative people who are paid for what they do should leave their specific creations with their employer when they go, while remaining free to keep creating for themselves or others.
The principles involved here are not just academic abstractions. Trade secrets are today the most widely used form of intellectual property, and are critically important to many industries. Consider, for example, a 2009 survey conducted by the National Science Foundation and Census Bureau, which showed that, among companies that engage in substantial research and development activity, secrecy is the leading method of protecting competitive advantage, and for those classified as "R&D intensive" - who account for 67% of U.S. R&D expenditure - secrecy is viewed as the most important form of intellectual property, more than twice the level for invention patents. (The paper is available at nsf.gov/statistics/infbrief/nsf12307/.)
At the same time, a healthy information economy requires easy mobility of knowledge-workers. So in setting policy and enacting laws, a lot rides on whether we get that balance right. And it means we have to be cautious and discriminating when we examine these competing interests and propose new approaches.
Professor Lobel supports her case in part by attacking the so-called "inevitable disclosure" doctrine applied by some courts to bar competitive employment by someone who "knows too much" to be trusted to keep secrets. And indeed some of the cases she cites seem to have produced bad outcomes. But by using anecdotes, and describing the facts almost exclusively from the employee's point of view, the author sacrifices objectivity and nuance. When the team captain, with the playbook in his head, wants to join the rival team, there may be a legitimate need for courts to intervene. In the vast majority of these "inevitable disclosure" cases, however, the court denies an injunction, or imposes a limitation like working in another department of the new company for a couple of months. Orders that flatly prevent competitive employment are rare, and even then are usually temporary and require compensation to the employee.
A similarly one-sided analysis of non-compete agreements detracts from the force of the author's argument. That's a shame, because while non-competes deserve healthy criticism, they aren't completely without justification. Although employers can rely exclusively on NDAs and trade secret law to protect their interests, litigation is messy and unpredictable, and the former employer typically has very little evidence to go on, since the employee planned his departure in secret. So from the employer's point of view, the alternative of simply prohibiting competitive employment for a period of time looks pretty attractive. Yes, non-competes are a blunt instrument to provide protection for secrets, and that is why courts are skeptical and why some places like California don't allow them at all. But this represents a policy choice between competing, rational interests, not a realization of some transcendent truth about the evil of non-competes (which by the way are not, as the author claims they are, a "near universal feature of employment contracts").
The book also disappoints by relying on anecdotes and examples that turn out not to be so reliable. For example, the author cites IBM as a company that "defaults to control", supporting this claim with a single employee's description of the company's "internal communications mail system" that requires "millions" of specially marked envelopes, demonstrating "waste in oversecrecy". But the quote comes from a Wall Street Journal article published back in 1995. What does IBM do now? I checked, and learned that the envelopes were only used for the most top-secret "restricted" documents - in the hundreds, not millions - and that this practice stopped shortly after Lou Gerstner became president, in 1993. So the 1995 statement turns out to have been both hyperbole and old news when it was first quoted. Over the last 20 years IBM simplified its confidentiality controls, using electronic technology (unsurprisingly), but without relaxing its focus on information security. And during that same period IBM distinguished itself as one of the nimblest, most successful technology companies in the world. This doesn't seem to fit with the author's hypothesis that "control" breeds underperformance.
Her treatment of Apple is similarly problematic. Apple is well known as one of the world's most secretive enterprises, but (despite the problems of its Asian suppliers, which have nothing to do with Apple's secrecy) it also boasts a very satisfied and engaged work force, not to mention a market capitalization of about half a trillion dollars. Rather than confronting this apparent contradiction with her basic thesis, Professor Lobel resorts to trivializing Apple's product release secrecy as a marketing gimmick.
Similarly, Procter & Gamble is singled out as a dinosaur that was obsessively paranoid about security. Here, Professor Lobel relies on information provided by a journalist who in the 1990s had been in litigation with P&G over her investigative techniques. She is quoted for the assertion that P&G's "intimidation practices resulted in many talented P&G employees leaving the company to seek work elsewhere". But where's the proof that "excessive security" was the cause of P&G's stock decline in that period? In addition, the author simply assumes that all of this opened the eyes of management, who (we are led to believe) must have relaxed its information security program. To support this, she points to the well-known success of P&G's embrace of "open innovation" in sourcing more than half its products from outside the company. This analysis is wrong in at least two ways. First, the kind of "open" innovation employed by P&G (its "Connect+Develop" program) is not free, and in fact can only exist thanks to secrecy laws and internal controls that support collaboration. Second, the introduction of Connect+Develop didn't happen because P&G's attention to secrecy was diminished. To assume that it did is just an implausible hypothesis in dire need of evidence.
Finally, Professor Lobel holds up Syntex Laboratories in Palo Alto as a company that succeeds while allowing free rein to its employees and interns. The most striking aspect of this example is that she uses the present tense to refer to Syntex. A quick check on the Internet shows that the company was acquired in 1994 by Roche, and ceased operations long ago. But the suggestion that a pharmaceutical company may have been relaxed in its attitude about protecting secrets was too tantalizing for me to resist doing some fact checking. It happens that I know the person who was General Counsel and in charge of these issues for Syntex in the 1980s and 1990s. So I got in touch with him, and he confirmed that the company in fact required NDAs and invention assignments from all employees, and took industry-standard steps to keep its research secret. So there's no story there either.
Beyond her wobbly examples, the author also makes serious errors in describing the current state of the law on trade secrets. She attacks the concept of "negative know-how" - that is, the knowledge of what doesn't work - by claiming that it is "one of the strangest developments in trade secret law". She supports this with a footnote to an article that says nothing at all about negative know-how. But worse, despite quoting Edison's famous statement ("I haven't failed; I've just found 10,000 ways that don't work."), she fails to acknowledge that this kind of secret is exactly what protects all research and development. And she suggests that there is still a "battle" going on about whether the law should recognize it as protectable. That's just wrong; the controversy, such as it was, over the protection of negative know-how was put to bed more than 30 years ago, with the adoption of the Uniform Trade Secrets act. Other references are merely misleading, as where she cites to cases invalidating NDAs under the same scope restrictions as non-competes. But these are exceedingly rare, and the one she refers to (AMP v. Fleishhacker) was decided back in 1987.
But in my view the author's strangest claim comes when she tries to argue that California's prohibition against non-competes has paid off by causing fewer trade secret lawsuits. Specifically, she says, "In practice, the number of trade secret disputes in the [Silicon] Valley has been relatively low in comparison to other competitive regions." That was a shock to see; from my own experience, I would definitely say that the opposite is true. But rather than rely on impressions, we can turn to the only published articles that address trade secret litigation statistics: Ameling, et al, A Statistical Analysis of Trade Secret Litigation in Federal Courts, 45 Gonzaga Law Review 291 (2009) and A Statistical Analysis of Trade Secret Litigation in State Courts, 46 Gonzaga Law Review 57 (2010). There, we find that during the years 1995-2009 California ranked number one, with 16% of the country's state court trade secret filings (Texas came in second with 11%). Although there are no statistics reported separately for Silicon Valley as such, a very close proxy in the federal system is the Northern District of California. That district, one of 93 throughout the U.S., ranked second in federal court trade secret filings in 2008, the most recent year reported. So California, while refusing to enforce non-competes, actually handles a lot more trade secret litigation than other places that allow them.
It's no surprise that "talent wants to be free". Of course it does. The promise of something new comes in the book's subtitle: "why we should learn to love leaks, raids and free riding." But unless the "we" refers to the rest of society cheering on the departing employees for contributing to knowledge spillovers (hardly a new idea), Professor Lobel fails to make her case that the former employer should be happy about this. She tries to get there based on research showing that left-behind firms tend to cite the patents of those who left, and vice versa. But so what? It's a huge leap from that to conclude that the "sending employers" are better off as a result of the leaving.
Even more speculation is involved in her assertion that "[s]ending companies gain access and possible advantages in future dealings. [Thus,] both sides benefit greatly from the movement." That can be true in individual cases, but it's hardly a universal, or even common, condition. And pointing to "alumni embrace" by law firms demonstrates the weakness of her generalization, because these are relationship-based businesses, incomparable to most product-based industries. Mostly, the author relies on colorful metaphors like one about jungle vines growing back after being cut, asserting that "[i]n industry, new connections and communications grow to replace the lost employee." Fine, but what about the lost competitive advantage from stolen secrets? There is just no evidence provided to support the idea that employers should re-think their attachment to proprietary information and "learn to love" leaks and free riding.
The employee-focused perspective is important to consider, and there are certainly cases where businesses choose to "let it go" rather than fight. But it would be better to provide analysis of those exceptional cases, instead of pointing to them as the option of choice for modern, enlightened enterprises. Things are indeed different these days. But trade secrets are more important now, not less. Talent matters, but sometimes information matters more.
As I indicated at the beginning, Professor Lobel's writing style is captivating, and her analysis can be insightful. While in my opinion this book missed its mark, I hope that she decides to take on more directly the issues related to non-compete agreements, providing specific advice to employers on how to protect their information assets while intelligently motivating their knowledge-workers. After all, in an age when the term of employment is shrinking and mutual loyalty fading, the connection between the company and its "talent" is becoming more like that between the company and its vendors, customers, and competitors: everything is a collaboration, and all relationships have to be managed carefully for mutual benefit.
Non-compete clauses in employment contracts prevent you from leaving your employer to go work for a competitor firm as long as the firm has a reasonable business interest. In most states, even if you work for a fast-food restaurant, you might sign a non-compete agreement that would stop you from going down the street and working for a competitor. Some rationales for enforcing non-compete clauses are (1) the efficiency of enforcing contracts (2) the prevention of trade secret violations. In Silicon Valley, where workers are unrestrained, workers pass on their knowledge from firm to firm as they change jobs, which speeds up the learning and innovation of the firms in the region.
In this book, Professor Orly Lobel does a tremendous job of tying together all the theoretical and empirical supports as to why California’s prohibition on CNCs matter – for innovation, for growth, and for prosperity of the region. After tying together all the theory and evidence, she adds her experimental studies that are grounded in behavioral economics to prove that when workers are unrestrained, they are more likely to be motivated and creative, which is good for firms and the workers. I anticipate that more research will support her ideas and believe she persuasively shows that a region can benefit by adopting a policy where worker’s rights to be free are put forth above the rights of firms to control them. This book and the surrounding literature are must-read material for anyone interested in why Silicon Valley is so successful.
One more thing: in the Kindle version, the last sentence of the book reads “Far from it – when talent is pree, everyone thrives. “ Pree should be free.
This book will change the way you think about managing people and controlling secrets. It challenges ideas that we take for granted in the same way Blink challenged our notions of snap decision making versus deliberate reasoning.
On the macro level, Lobel lays out a case for state and corporate level policies of openness and cooperation, and on the individual level analyzes incentives, environment, and social/professional networks and the ways that they foster or stifle innovation. There are also cool aspects of vignette telling that get into game theory and a legal insider views of stuff like non-compete contracts.
Bottom line: This book gives you a toolset for managing people in business and/or dinner table discussion about intellectual property and how corporations and governments can drive invention and innovation.