When Open Source and NDAs Intersect
Open source and NDAs might seem incompatible, but many successful software companies navigate both. The key is understanding which parts of your software ecosystem need confidentiality protection and which benefit from open collaboration.
Open Core Model
Core product is open source, but premium features, enterprise integrations, or SaaS infrastructure are proprietary and protected by NDA.
Proprietary Plugins
Base platform is open source, but certain plugins, extensions, or connectors are commercial and require NDAs for early access.
SaaS + OSS
Software is open source, but your hosted service, infrastructure, and operational practices are confidential.
Pre-Release Features
Upcoming features are developed privately before open sourcing. NDAs protect unreleased work until public launch.
Enterprise Partnerships
Custom enterprise deployments and integrations often require NDAs even when the core software is open source.
AI/ML Training
Training data, model weights, and optimization techniques may be proprietary even if inference code is open source.
Essential NDA Carve-Outs for OSS
When your codebase includes open source components, your NDA must explicitly carve out OSS from confidentiality obligations. Without proper carve-outs, you could inadvertently restrict developers from using or contributing to open source.
Open Source Exclusion Clause
"Confidential Information shall not include any software, code, or documentation that is: (a) released under an OSI-approved open source license; (b) publicly available in open source repositories such as GitHub, GitLab, or similar platforms; or (c) required to be disclosed under the terms of an open source license governing any component of the software."
Contribution Rights Preservation
"Nothing in this Agreement shall prevent Receiving Party from making contributions to open source projects, including projects that may use similar technologies or approaches, provided such contributions do not incorporate or disclose Disclosing Party's proprietary trade secrets or non-public business information."
License Compliance Clause
"To the extent any Confidential Information incorporates third-party open source software, Receiving Party may use, modify, and distribute such components in accordance with their applicable open source licenses. Disclosing Party represents that it has complied with all open source license obligations for software shared under this Agreement."
Copyleft Considerations
If you use copyleft-licensed code (GPL, AGPL), be careful that your proprietary code isn't legally required to be open sourced. Consult with legal counsel to ensure your NDA protections align with your open source license obligations.
Contributor License Agreements (CLAs)
CLAs are not NDAs, but they're essential for open source projects. They clarify IP ownership and give the project maintainer rights to use, license, and sublicense contributions.
Individual CLA
Signed by individual contributors. Grants the project rights to their contributions.
- Copyright assignment or license grant
- Patent license for contributed code
- Representation of original authorship
- Right to relicense contributions
Corporate CLA
Signed by companies whose employees contribute. Covers all employee contributions.
- Authorizes employee contributions
- Transfers employer's IP rights
- Lists authorized contributors
- Ongoing update mechanism
CLA vs. DCO
Some projects use a Developer Certificate of Origin (DCO) instead of a CLA. The DCO is a lightweight alternative where contributors certify their right to submit code via a "Signed-off-by" line. CLAs provide stronger IP protection; DCOs are simpler but less comprehensive.
NDA vs. CLA vs. OSS License
| Aspect | NDA | CLA | OSS License |
|---|---|---|---|
| Purpose | Protect confidential information | Grant rights to project maintainer | Grant rights to users |
| Direction | Restricts sharing | Enables contribution | Enables use/distribution |
| Covers Proprietary Code | |||
| Covers Contributions | |||
| Patent Grant | Sometimes | Usually | Sometimes (Apache 2.0) |
| Can Be Mutual | (One-way) | N/A | |
| Revocable | Per terms | Usually no | Usually no |
What to Protect in an OSS Business
Even if your core product is open source, many aspects of your business require NDA protection:
| Asset | Open Source? | NDA Protected? |
|---|---|---|
| Core application code | Yes | No |
| Enterprise features / Pro version | No | Yes |
| SaaS infrastructure / DevOps | No | Yes |
| Customer data and analytics | No | Yes |
| Pricing and business strategy | No | Yes |
| Roadmap and unreleased features | No | Yes |
| Training data / ML models | Depends | Usually |
| Public documentation | Yes | No |
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