An Empirical Investigation of the Paramount Antitrust Case
派拉蒙反托拉斯案经验反思
（节选）
Richard Gil
US-Santa Cruz
1. Introduction
Since the Sherman Act was passed by US Congress in 1890, the Department of Justice and the Federal Trade Commission have prosecuted those which practices represented a restraint of trade for other. Since the very beginning vertical integration became one of the usual suspects to determine how and when a restraint of trade was taking place. This has not changed over time and still today antitrust authorities investigate the purpose and consequences of any upstream firm looking to vertically integrate into a downstream industry. Unfortunately for them, there is not a clear rule of thumb that determines when vertical integration will be innocuous to competition in a particular industry. This circumstance makes the regulatory task of authorities more colicated and enhances the value of the study of the consequnces of previous antitrust resolutions. This paper provides evidence from the Paramount antitrust cast that was resolved during the decades of the 1940s and 1950s using a new data set and hopes this way to serve as refernce for future antitrust action.
自1890年美国国会通过谢尔曼反托拉斯法案后，美国司法部和联邦贸易委员会就开始对贸易管制行为进行起诉。垂直统一管理模式在最初受到很大质疑，通常被作为判断是否有垄断行为的标准。这点一直没有发生改变，反垄断调查今天仍然针对上游市场公司对下游市场公司进行垂直整合的动机和后果。不幸的是，垂直整合是否会危害一个特殊工业的自由竞争，现在还没有经验上的判定。这一情况使得权利调节工作变得错综复杂，同时，也让反托拉斯研究变得更有价值。这篇论文将利用最新数据，通过对发生在40及50年代的派拉蒙反托拉斯案进行研究，以期提出对未来反托拉斯行动有价值观点。
（中间略去数段，最不喜欢看前言了～～）
2. Industry Details and the Paramount Case
The movie industry is a typical example of a vertically organized industry. There exist three main agents in this industry: producers, distributors and exhibitors. As their names indicate, the producers are the agents in charge of movie production; the distributors are those that distribute movies into the exhibition market and the exhibitors are those agents that own theaters and provide movies to consumers directly. These can potentially be integrated into a same firm in different ways, production with distribution, distribution with exhibition or production, distribution and exhibition in one same firm. The first organizational form (production integrated with distribution) is common today in the US movie industry and other countries. The second organizational form is common in countries other than the US that feed their screens mostly with movies produced abroad. Finally the third type of organizational form mentioned above that integrated all three stages (production, distribution and exhibition) is the focus of attention of this paper. The most famous example of this organizational form is the case of the 5 major studios in the US previous to the Supreme Court ruling on the Paramount Case in 1948 that forced them to disintegrate.
电影工业是垂直整合的典型案例。该工业主要由三部分构成：制作、发行、放映。正如名称透露出的信息一样，制作是整个行业的领头羊，发行方将电影发行到放映市场，而放映方则拥有自己的影院，并将电影直接提供给消费者。三个部分可以潜在的通过不同途径被整合到一个公司中，包括：制作兼发行、发行兼放映、制作发行放映三位一体。第一种情况在今天的美国以及很多国家的电影工业中都比较常见。第二种是除了美国，将主要放映放置在国外的公司经常采用的模式。最后一种整合了三个部分的情况就是本文要重点考察的类型。这种组织形式最著名的案例就是1948年，美国高级法院在派拉蒙诉讼案中，做出的强制美国五大制片厂分割的判决。
Previous to 1916 there was no full integration in the US movie industry. In 1916, the Famous Players-Lasky Corporation acquired Bosworth, Inc. and the Paramount Corporation. As the general opinion was that the Famous Players-Lasky Corporation did so to monopolize the industry and restrict interstate commerce, the Department of Justice called the first Paramount case. This antitrust case started in 1921 when the FTC filed a complaint against Famous Players-Lasky arguing that they were using theater acquisition to induce exhibitors to accept determinate vertical restraints such as block booking. The FTC concluded that block booking was indeed an anticompetitive practice and the case resulted in a cease order for block booking in 1927 as well as a demand for reform on Paramount theater acquisitions. The Paramount-Famous-Lasky Corporation disputed the charges and as result the FTC announced they would ask the government to pursue antitrust action.
1916年以前，美国电影工业中不存在完全整合的情况。1916年，名人名剧－拉斯基公司收购了博斯沃斯公司和派拉蒙公司。因为普遍认为，名人名剧－拉斯基公司的这种行为垄断了行业，并且限制了州际贸易，所以美国司法部提出了第一次派拉蒙案。反垄断案开始于1921年，FTC起草了一份针对名人名剧－拉斯基公司的起诉，认为该电影公司通过收购影院来减少放映商的数量，他们采用了诸如卖片花这样的方式来达到垂直控制。联邦贸易委员会判决认定，卖片花的确属于阻碍自由竞争的行为。1927年，该案最终作出禁止卖片花的判定，并要求重组派拉蒙院线。名人名剧－拉斯基公司对结果表示质疑，联邦贸易委员会声明，它们必须要求政府在反垄断行动中表现积极。
On April of 1928, the Department of Justice filed an antitrust case against Paramount-Famous-Lasky Corporation and 9 others. After two rounds of appeals, the Supreme Court found in 1930 the ten distributors guilty of violating antitrust law and identified block booking as the main problem. The sentence was never enforced due to the Great Depression. Even in 1933 the distributors looked for protection under the National Industry Recovery Act. The government nullified the decree and suspended the antitrust case. As a result, the distributors were allowed temporarily to use block booking and vertical integration while the studios recovered financially from the Great Depression. By 1935 the studios had recovered financially and were in good condition again. There was a general concern that the studios had recovered their dominant situation by developing further their market power through the anticompetitive use of block booking and blind bidding in detriment of smaller independent producers and exhibitors. In particular, smaller independent producers complained that big studios linked their best feature movies to B-movies (some still in production!). Independent producers and exhibitors claimed that they did this through block booking and the use of the threat that they could show the movies on their own theaters.
1928年4月，美国司法部提出了针对派拉蒙－名人－拉斯基等其它九家公司的诉讼。经过两轮上诉后，高级法院于1930年判定这十家发行商均违反了反垄断法，而关键问题就是卖片花。由于大萧条时期的到来，判决一直没有强制执行。甚至在1933年，发行商还寻求《国家产业复苏法案》的保护。政府宣布判决无效，而且对反垄断法提出质疑。结果，出于使制片厂能够在大萧条时期从金融危机中复苏的目的，允许发行商临时使用卖片花和垂直营销模式。1935年，制片厂已经摆脱金融危机恶梦，进入良心发展。普遍认为，制片厂回复统治地位是建立在损害小型独立制片商和放映商利益的基础上的。小型独立制片商特别谴责的就是，大型制片厂在他们最优秀的长片之外捆绑B级片的做法。独立制片商和发行商声称，大制片厂通过操纵卖片花和影院达到垄断目的，因为他们可以在自己的影院放映自己的影片。
Besides this, the movie industry suffered of another worrying symptom: there was a popular feeling that the quality of the movies being produced by the major studios had declined severely during the 1930s due to the use of their market power. After the release of “Snow White” in 1938 by Disney and its tremendous success, Variety magazine identified this as a clear sign that quality was not going to come from the majors and blamed block booking as the cause of this. In response to this and as a response to lobbying of different groups and organizations, the Department of Justice announced in 1938 a suit against the eight biggest studios in Hollywood, 25 of their affiliated companies and 132 executive officers for monopolization in restraint of trade. Curiously enough, 1939 is for many the greatest movie year in history with movies such as Go with the Wind, The Wizard of Oz or Wuthering Heights.
除此以外，电影业又有其它另人担忧的迹象出现：普遍感觉到大制片厂的影片质量在30年代出现大幅下滑，而且主要归罪于滥用市场权利。1938年，迪斯尼的[白雪公主]获得巨大成功，《综艺》指出，这说明优秀电影并非只能来自大片厂，同时批评了卖片花行为。作为对各大团体和机构的回应，美国司法部于1938年提出了针对八大制片厂，以及它们的25大联营公司和132位执行官的诉讼，起诉他们通过垄断手法控制市场。值得注意的是，1939年是佳作辈出的一年，诸如[乱世佳人]、[绿野仙踪]、[呼啸山庄]都是在这一年制作发行的。 During 1939 the government refined its case and divided it into two different cases. The first case, even though not the focus of the paper here, was against several large independent theater chains. These exhibitors were accused of collusion jointly with the major studios and distributors to eliminate competition from smaller exhibitors.
1939年，政府重新评估案例并将其分割成两类。第一类不是本文讨论的重点，但它牵涉了一系列大型独立院线。这些院线被控与大型制片商和发行商勾结，来削弱小型院线的竞争。
As the first of the two cases caught momentum, the studios asked the government to reach an agreement behind doors. As a result of these negotiations, the government issued in 1940 a Consent decree for which the Paramount case was called off. In return, the government regulated (not eliminated) block booking and prevented blind bidding through trade shows. The Consent decree was silent about the studios’ theater ownership and therefore the studios were allowed to keep their theaters. The reaction to this decree was not uniform across studios because the decree was negotiated by the five Majors leaving out Columbia, Universal and United Artists. None of these three had any theaters and they mainly relied on block booking to distribute their films (UA claimed to have never used block booking though). For this reason, the government set up an expiration date to fulfill block booking as contractual practice, the decree itself would expire and the government would reopen the case.
作为两个案例的首要因素，大制片厂请求与政府达成闭门协议。双方最终都做出让步，1940年政府签署《合约》撤销了派拉蒙案。同时，政府削减（不是废除）卖片花行为，并且阻止盲目投标（在看不到影片试映的情况下,为一部影片的放映权进行买卖交易的行为）。《合约》没有对制片厂的剧院所有权做出规定，因此，它们仍然保有剧院。这项判决未能在所有大片厂获得共识，因为这其中只包括排除哥伦比亚、环球和联艺的五大制片厂。这三家制片厂自身没有影院，它们主要依靠卖片花来发行自己的影片（虽然联艺并不承认这点）。因此，政府以合约惯例为由，制定了最后期限，这种判决等于枪毙了自己，政府后来不得不重开此案。
With the end of World War II and the expiration of the Consent decree, by October of 1945 the Big Eight studios and the federal government were in court for the second phase of the Paramount case. The studios could no longer hide behind the Great Depression and given the after-war windfall in attendance (1946 recorded an all-time record in attendance). Still the studios argued that economic conditions in overseas markets were still especially instable. The studios also argued that owning theaters assured an outlet for all movies they produced and claimed no monopoly existed. To all this, United Artists claimed not to understand of its presence in the trial since they neither owned theaters nor practiced block booking. The trial ended in January 1946 finding the eight studios guilty of restraint in trade focusing mainly in block booking and theater pooling. However the Big Five major studios were allowed to keep their theaters as long as they eliminated their theater pools. The solution of the court was held on competitive bidding where studios would be forced to accept the bid of “the highest responsible bidder.”
随着二战结束，以及《合约》中止，1945年10月，八大与联邦政府就派拉蒙案二度对簿公堂。制片厂再也不能用大萧条做掩护，并且开始在战后复苏中大发横财（1946年达到最高记录）。但是制片厂仍然以海外金融环境尚不稳定力争利益，并且表示，它们所有的影院只是放映自己拍摄的影片，并不存在垄断。联艺则在质疑自己为什么会被列入被告席，因为它们即不拥有影院，也没有卖片花。1946年本案告结，八大制片厂被控主要通过卖片花和影院联营垄断市场。不过，五大被许诺，只要削减影院联营，它们可以继续保有影院。法院的解决办法是，强制制片厂为“最高价责任竞标人”竞标。
No part was happy with this sentence and both decided to appeal to the Supreme Court. In three months, from February to May 1948, the Supreme Court reached a decision that overruled the decision reached by the New York District Court two years before. On one side, the Supreme Court confirmed the decision of the District Court of declaring the studios guilty of restraint in trade through the use of block booking, banning block booking and providing that all films should be sold in an individual basis from that moment on.
任何一方对此判决都不满意，决定上诉到高级法院。从1948年2月至5月，最高法院决定驳回纽约联邦地方法院两年前达成的决定。一方面，最高法院肯定了联邦地方法院确认的，卖片花是一种妨碍市场竞争的做法，并从那时起，禁止卖片花，并要求所有电影都应该在分割独立的基础上售卖。
The Supreme Court reversed the previous decision in two dimensions. The first instance has to do with the competitive bidding aspect. The court thought that not only this measure would not be effective but also it would impose a burden to the government in terms of monitoring costs and regulation. The second dimension was the recommendation of theater divorcement by the Big Five major studios. The case then went back to the New York District Court in what seemed an endless prolongation of the process. The Department of Justice encouraged at that point the Big Five majors to sign a consent decree that would allow them to opt out from the trial (and save millions in legal fees) as long as they agreed to a divorcement decree that separated their exhibition branches from distribution and production. This offer did not sound too attractive to the studios and the Big Five prepared to go back to Court to keep their theater holdings.
最高法院从两个方面颠覆了最初的决定。初审的竞标形式，在法院看来不仅不能产生任何影响，而且政府还要花费监督和调节成本。第二方面是建议影院与五大片厂分离。这个案子最后又发回纽约联邦地方法院，看起来简直就是绵绵无期了。司法部鼓励五大，只要它们将放映从制片发行环节分离，它们就可以选择退出庭审（这样可以节省上百万的法律费用）。这种优惠条件对制片厂来说并不诱人，五大准备将本案再次返回最高法院以保住它们的影院所有权。
What we see from that moment on is a gradual divesture of the Big Five studios. The timing of this process is far from random but still we can argue that goes against the will of studios’ owners. RKO was the first to separate from its theater branch. Howard Hughes, following his erratic behavior, decided suddenly in November of 1948 to separate his exhibition business from his studio and distribution branches. Hughes was looking with this sudden decision to institutionalize the sentence and to speed up the divesture process of the other studios. RKO was the smaller of the Big Five studios and the divesture could help equalize RKO competitive situation with the other four major studios. 我们看到的就是，这是一个对五大制片厂逐渐剥离的过程。时间表非常随意，但我们仍然可以说，它危及了制片商的利益。雷电华第一个分离了它的影院系统。霍华德·休斯，一如既往的惊世骇俗，它在1948年11月突然将自己的放映系统从制片发行系统中分离。休斯的这一举动使得判决终于制度化，而且加速了其它制片厂的分离进程。雷电华在五大中相对较小，所以分割对它来说有利于改善它同其它四大的竞争环境。
The next studio to follow the sign-up of the decree was Paramount studios in February of 1949. Paramount’s reasons to divest from its theaters were far from similar to those of Hughes and RKO. Paramount had developed already at that time interests in the television market. Since the FTC could revoke any television license to any firm convicted with monopolistic practices, it was in the best interest of Paramount to sign the decree, divest from its theater holdings and focused on the new flourishing television industry. Fox and Warner followed in 1951 and finally MGM separated from its exhibition division in 1954.
接下来，派拉蒙在1949年2月执行了判决。派拉蒙采取行动的原因跟雷电华的休斯大相径庭。派拉蒙当时对电视市场很有兴趣，鉴于FTC有权以垄断为由撤销任何电视经营权，派拉蒙最好的选择就是签署协议，剥离院线控制权，而将重点放到正在崛起的电视业。接着，福克斯和华纳在1951年分割放映权，最后是1954年的米高梅。
As a result of this, 34 years after the beginning of the first Paramount case, the government through the Department of Justice had achieved what it was its first goal and never could enforce due to the Great Depression: ban block booking and force theater divesture from major studios. The Department of Justice was hoping with this to promote competition in movie industry and offer a shot to independent and smaller companies both in the exhibition business and the production business. It is the purpose of this paper to document whether the goals of the government were achieved through these two measures.
终于，历经34年风风雨雨之后，司法部终于实现了当年因大萧条而未能实现的，第一次派拉蒙案的初衷：禁止卖片花并强制影院从大制片厂分离。司法部希望以此促进电影业自由竞争，并且给小型或独立片商在放映和生产领域提供一个机会。本文将检讨，政府是否通过这两个措施达到了目的。
3. Data Description and Some Established Facts
The data used in this paper is data from the American Film Institute (AFI) movie catalog. The Catalog provides authenticated online information on every feature-length film produced in America or financed by American production companies from 1893 to 1970. The information included in the data set includes details on cast, crew, plot summaries, subjects, genres and historical notes for each film.
（本文所使用的数据来自美国电影协会（AFI）的电影目录。）
We collected information for all movies produced in the United States from 1940 to 1960. This means that we eliminated from our sample all movies produced by foreign studios even if this were studios owned by American studios’ subsidiaries. We also deleted from our sample all those movies produced by the government and the army.
（例子都选自1940年至1960年在美国拍摄的电影。不包括国外，即使隶属于美国的制片公司，也不包括政府和军方制作的电影）
Most of these were documentaries and news reports about World War II and the Korea War. Finally, we drop all data from 1960 because at the time of data collection AFI had not finished inputting all entries for that year. As a result, movies from 2 major studios were not listed and therefore we decided to leave this year out of the period under study. Since most of the events of our interest occur between 1948 and 1955, we do not think leaving 1960 out of the analysis will affect results from our analysis.
（本文没有研究60年代的数据，因为不完整，而且相信对本课题影响不大）
（略去一段）
The final data contain information for 7,441 movies produced in the US between 1940 and 1959 (20 years total). 6% of these movies had more than one studio involved in their production. We call these movies co-production for the purposes of the paper. In total we observe 1,141 different production companies. 147 of these companies only show once and in a co-production and 746 studios show once as only producers. This means that there are only 248 studios that produced movies in 2 or more years during the two decades under study. Out of these 248 studios, only 15 studios produced movies in 10 or more years during this period. This gives an idea of how concentrated movie production was in this industry. We also have information on movie duration for 7,376 of these movies. The average movie duration during this period is 78 minutes. We also got information on TV penetration and theater admissions. We got data from the Television Factbook 1964 on yearly TV saturation (% homes in the US with a TV). Even though TV saturation was 0 until 1945 it went up to 86% in 1959. Movie admissions averaged 1,236 millions over the two decades and peaked in 1946 with the all time record of 1692 million admissions.
最终的数据来源于自1940到1959年间在美国生产的7441部影片。6％的影片涉及超过一家公司的参与。本文称之为合拍片。我们总共考察了1141家不同制作公司，147家只作为合作方出现过一次，746家仅作为制片方出现过一次。这就意味着只有248家公司在这20年中生产过两部或两部以上的电影，而在这248家中，又仅仅有15家超过10部。这说明电影行业是一个多么集中的行业。这些影片的总长度是7376分钟，所以平均每部的片厂是78分钟。还有关于电视业和剧院的信息。我们从1964年的《电视概况》中获得年度电视饱和度（美国拥有电视家庭所占比例），尽管电视饱和度在1945年还是零，但在1959年飚升了86％。20多年中，电影平均收入为12.36亿，1946年创下16.92亿记录。
The total number of movies produced in 1940 was above 500. This number quickly declined to 400 movies by 1944 and stayed at that range until 1950. From 1951 on, the number of movies produced by the US movie industry decreased until reaching the production of level of 200 movies annually in 1959.
1940年生产的电影总数超过500。1944年迅速下滑至400部并基本持平至1950年。然后从1951年开始，电影生产数量持续下滑，最终到1959年减为每年200部的行业水平。
Another established fact of this industry is the increase in movie duration during this period of time. We observe from our data set the duration of all movies privately produced in the US. We see from Figure 2 below that by 1940 the average movie duration was around 73 minutes. This average duration started increasing by 1945 until reaching the average duration of 90 minutes in 1959. This increase in duration is steady and we do not observe any change in trend across time.
该行业另一确定的事实是，在这段时间中，每部电影的长度变长。我们的数据是基于所有在美国制作的影片。我们在下图2中可以看到，到1940年，影片平均长度是73分钟，从1945年开始，这个数字一直增加，一直到1959年的90分钟。这一增长非常稳定，我们没有在增长趋势上发现任何变化。
The third established fact is a change in the modus operandi in Hollywood. As the years passed the golden years of the Hollywood studios were over and studios changed their decision of production and financing for that matter. We observe very clearly in Figure 3 below how the share of co-produced movies is roughly constant from 1940 to 1950 around 2.5%. This changed after 1950 when the share of movies co-produced explodes to 10% the next year and increases up to 15% by 1955.
第三个确定的事实就是好莱坞策略的变化。随着好莱坞黄金时代的结束，各大制片厂改变了它们在生产和金融方面所做的决定。从表3可以很清楚的看到，从1940年到1950年，合拍片的份额维持在2.5％。1950年之后发生急剧变化，合拍片份额激增到10％，到1955年增长到15％。
Finally, our data on TV saturation (% homes in the US with TV) shows in Figure 4 how the introduction of television was quick after 1946. It went from 0.02% in 1946 to 65% in 1955 and 78% by 1985. Popular press has tended to interpret this quick development of television in American society as a major force behind the changes experienced by the movie industry during these two decades. According to this, the first consequence of the introduction of television came through movie theater revenues which decreased steadily between 1946 and 1959 (see Figure 5). The goal of this paper is not examine whether this statement is either accurate or fair. The goal of this paper is to explore whether television introduction had an effect on the changes occurred in the movie industry and assess the importance of the Paramount case as we take into account the importance of television.
最后，在表4中显示了电视饱和度（美国家庭拥有电视的百分比）1946年后迅速上升。从1946年的0.02％到1955年的65％，最后上升到1985年的78％。流行媒体倾向于把电视的迅速发展解释为在这20年中影响电影的重要因素。电视的增加造成的第一个后果就是使1946年到1959年间的影院收入持续降低（图5）。本文将解释为何电视的进入会改变电影工业，以及评估派拉蒙案对电视业的重要性。
4. Implications of Antitrust Action and Empirical Methodology
Following the industry details above, we discuss the intention of the Department of Justice with the Paramount case. In this case, we describe the expected consequences of the ruling on studio performance and decisions by the Department of Justice and the methodology we will use to test whether the case had any effect on the industry.
前面我们讨论了司法部对派拉蒙案的意见。在这一小节中，我们将描述此案对制片厂行为的管理，司法部的决定，并运用方法论评估此案是否对工业产生了影响。
