You buy a new computer program, maybe TurboTax or a game, and you install it on your PC or laptop. Before it installs, you see a dialog window with these three words and two check boxes – one says Agree and the other says Decline. You know that if you check Decline, the program won’t load. And if you check Agree, the program will install. Not a difficult choice, huh?
I used to read the actual terms of service, but they have become as long as Les Miserables, and you really need better legal representation than Trump has these days just to understand what the hell the terms are. Years ago, in simpler times, the terms of service for software were straightforward. You were asked to agree that you would install the software on only one device or use it on only one device at a time, that you would not hack into the software or modify it in any way, that you would not reverse engineer it so that you could than sell your version as an original work, and that you accepted that the software company would be held harmless if your computer did something unexpected like explode as a result of your use of the software.
So, why can’t writers and actors get contracts with similar terms of service? The purchasers (production studios) of the writers’ scripts and actors’ performances are getting a product like a piece of software. The suppliers of those products should be able to require that the purchaser agree to not modify either the script or performance to make additional movies without the consent of the originator, reverse engineer the script or performance so that it can be repackaged as if it were an original work, and so forth.
The simple truth is that our free market is not a level playing field. It is more free for those with deep pockets and large legal departments than it is for employees or customers. A software company can defend its intellectual property with terms of service that an individual cannot command.
That’s why unions matter.