Scott Kirsner, business writer for the Boston Globe, has been perhaps the most active follower of the Massachusetts noncompete debate during the past couple of years. Last week, he posted on his blog, Innovation Economy , about a recent chat with Gov. Deval Patrick on the issue, including the pending legislation to prohibit or scale back noncompetes. The bottom line, it seems, is that Gov. Patrick continues to hedge his bets. Kirsner quotes him as saying, "If there’s a consensus in the industry [as to whether they’re a good or bad thing], I’m happy to support that." Well, at the moment there is far from a consensus on the issue. While some in the emerging-company world are increasingly vocal about their desire to outlaw noncompetes in Massachusetts, many others continue to support them. Kirsner describes Paul Sagan of Akamai Technologies — obviously an influential voice in the technology space — to be in the pro-noncompete camp.
In a column in yesterday’s Globe, Kirsner describes at length his view that non-competition agreements stifle innovation, particularly because they discourage talented workers with new ideas from forming or joining start-ups out of fear of being embroiled in costly and distracting litigation. He points to the statutory exceptions that already exist for certain occupations — doctors, social workers and broadcasters — and questions why, if a TV anchor can move from one station to another, an engineer at a tech company can’t. One answer to that question is that the movement of a TV anchor to a competitor does not threaten any legitimate business interest of his former employer. There is no confidential information at stake. The anchor succeeds or fails based mainly on his or her skill at conveying news to an audience. An engineer joining a competitor, on the other hand, arguably comes with not only her general skills and experience (which she can take with her), but also with detailed knowledge of the former employer’s confidential information, and she can’t simply forget that information while developing a product for a competitor. Thus, in moving to the competitor, the engineer places at risk the very confidential information that the former employer spent much time, money and other resources developing and protecting. That, at least, is the principal argument in favor of enforcing noncompetes in certain instances.