The Paramount Doctrine's Irony
I was going to go to the gym this morning. I should probably mention that I almost never go to the gym—my relationship with physical fitness has the quality of a New Year’s resolution made in perpetuity, renewed each Monday with the fervor of the recently converted and abandoned by Wednesday with the resignation of the chronically self-aware. But today I had resolved, truly resolved, to go.
Then I saw that Netflix had announced it would acquire Warner Bros. Studios, HBO, and HBO Max for $82.7 billion. And now I am here, writing this, because this merger threatens to foreclose an entire mode of cultural production, and I want to make that case as clearly as I can—though I am aware, painfully aware, that clarity is perhaps the wrong aspiration when the subject is the systematic dismantling of the architecture through which Americans have encountered themselves for a century.
Let me try anyway.
THE PARAMOUNT PROBLEM
Warner Bros. was one of the original defendants in United States v. Paramount Pictures, Inc., the 1948 antitrust case that dismantled the old Hollywood studio system. The Supreme Court ruled 7-1 that vertical integration—studios controlling production, distribution, and exhibition through theater ownership—constituted an illegal restraint of trade. When a single entity controls content creation and the venue where content reaches audiences, competition withers. Independent producers get squeezed. Cultural diversity suffers. The remedy was structural: forced divestiture.
That decision opened the door for foreign and independent films to be shown in American theaters. It fostered, as one scholar put it, “a more competitive environment that encouraged diversity in filmmaking and opened up opportunities for new voices in cinema.” United Artists flourished. Independent production became viable. The American New Wave became possible.
In August 2020, the Department of Justice let the Paramount Decrees sunset, arguing that the old model “could never be recreated in contemporary settings.”
I think about this statement the way I think about the time I told my mother I was “over” my fear of abandonment. Subsequent events have not been kind to the prediction.
THE ARCHITECTURE OF FORECLOSURE
Here is the structural reality that antitrust enforcers must confront: Netflix is not merely a distributor. Netflix is a theater.
When 300 million global subscribers open the Netflix app, they are walking into a cinema—one that Netflix owns entirely, programs exclusively, and controls absolutely. When Netflix acquires Warner Bros., it acquires the capacity to determine whether that content ever reaches any exhibition venue Netflix does not control.
This is the Paramount problem reconstituted for the streaming age. In 1948, studios owned 17% of theaters, accounting for 45% of film-rental revenue. Netflix owns the only screen that matters for its subscribers in every market.
The Court in Paramount held that vertical integration “is not illegal per se; its legality depends upon (1) the purpose or intent with which it was conceived, or (2) the power it creates and the attendant purpose or intent.”
We need not speculate about Netflix’s intent. In April, Sarandos told TIME that theaters are “an outmoded idea, for most people.” This morning, he reiterated his opposition to “long exclusive windows.” Netflix’s co-CEO has said, explicitly: “Driving folks to the theater is just not our business.”
The Paramount Court recognized that monopoly power need not be exercised to violate the Sherman Act—it suffices that such power exists and is “coupled with a purpose or intent” to exclude competition. Netflix’s leadership has spent years articulating precisely this intent.
Cinema United estimates that Warner Bros. accounts for approximately twenty-five percent of the annual domestic box office. This year, Warner Bros. released Sinners, A Minecraft Movie, F1, Weapons, and One Battle After Another—each opening above $45 million, a historic streak. The studio plans twelve to fourteen theatrical releases annually.
Netflix gives only “a handful” of films “a short run in the theater beforehand.”
Representative Darrell Issa has cautioned that a combined Netflix-HBO Max would command more than thirty percent of the streaming market—”a threshold traditionally viewed as presumptively problematic under antitrust law.”
But market share is not the most important metric here. What matters is architectural control: the capacity to decide, unilaterally, whether films that might otherwise sustain an entire exhibition ecosystem ever reach that ecosystem at all.
THE POLITICAL REALITY
Here is something I wish I didn’t have to include but would be dishonest to omit: the Trump administration reportedly views this deal with “heavy skepticism.”
This is not because the administration has developed a sudden interest in theatrical exhibition. It is because David Ellison—CEO of Paramount, son of Oracle founder Larry Ellison, and a man who has cultivated a “mutually beneficial relationship” with President Trump—wanted to buy Warner Bros. himself.
A senior Trump administration official told reporters: “Who owns Warner Bros. Discovery is very important to the administration.” Ellison’s allies have privately argued that he is “the only buyer who would pass muster with Trump administration regulators.” Paramount, in its bid, warned that Netflix acquiring Warner Bros. “will reduce the number of films for broad theatrical release”—a concern that happens to align with my own, articulated by people whose motives I find troubling.
Senators Warren, Blumenthal, and Sanders have warned the Justice Department that any Warner Bros. merger could be “tainted by political favoritism and corruption.”
So the case against this deal may be made by an administration that wants a different billionaire to own HBO so that CNN can be made more amenable to the President. I don’t know what to do with that. I’m noting it because pretending otherwise would be dishonest.
ON THE PHENOMENOLOGY OF MOVIEGOING
The summer before my senior year of high school, I went on a first date with a girl I’d been too nervous to talk to for months (I asked her out over Snapchat). We saw Dunkirk at an IMAX theater.
I want to be careful here, because instrumentalizing a personal memory for rhetorical effect is a kind of cheapness. But I’m going to say it anyway, because I think it’s true:
That movie changed something in me. Not the content—I couldn’t have told you the plot afterward. What changed me was the experience. The way the sound design made my chest vibrate. The way the screen was so large I couldn’t see its edges. The way I was aware, the whole time, of this girl sitting next to me in the dark, both of us flinching at the same explosions, both of us caught up in something happening to us rather than something we were merely watching.
Christopher Nolan shot that film on IMAX 70mm because he believed some experiences cannot be reproduced at smaller scales. The whole point was overwhelm. The whole point was that you couldn’t pause.
When the credits rolled, we walked into the parking lot and the summer air felt different. We dated for all of senior year.
I make films now—or I’m trying to. I’m working on a documentary. I produce theater. I’m getting a dual degree so I can think more rigorously about the legal structures that shape what art gets made and how it reaches audiences. And what I keep coming back to is this: the where and how of an audience’s encounter with a work is not incidental to the work. It’s constitutive of it.
When Sarandos says theatrical windows should “evolve,” he’s talking about convenience. But convenience reshapes what gets made. Convenience reshapes what stories feel worth telling. Convenience reshapes the entire experiential vocabulary of an art form.
I don’t have a solution. I want to be honest about that.
I can tell you what the Paramount Court feared, and I can tell you that those fears look remarkably similar to what we’re facing now. In the 1940s, the concern was that vertical integration would foreclose independent voices, limit consumer choice, and allow a handful of corporations to determine what stories Americans could see. The remedy—forced divestiture—worked. Independent cinema flourished. New voices emerged. The competitive landscape that gave us the American New Wave, that gave us Bonnie and Clyde and eventually the Sundance generation, became possible because exhibition was separated from production.
I can tell you what has already happened. Since 2019, the United States has lost nearly 5,000 theater screens—about twelve percent of the pre-pandemic footprint. Ticket sales in 2024 fell to $8.7 billion, a 23.5 percent drop from pre-pandemic levels. During the pandemic, nearly 1,000 screens were lost; closures continue regularly. Regal Cinemas, Pacific Theatres, and Alamo Drafthouse have all filed for Chapter 11. The average theater-to-streaming window has collapsed from seventy days in the 2010s to thirty or forty days now.
I can tell you what will likely happen if this deal goes through. Cinema United projects that removing Warner Bros. films from robust theatrical release would eliminate 25% percent of the annual domestic box office. Theaters survive on a margin of films—they need a critical mass of product to remain viable. Remove a quarter of that product, and theaters that were barely surviving will close. Not the multiplexes in Manhattan. The single-screens in small towns. The independent theaters that show repertory films and host community events and anchor Main Streets across the country.
Research shows that for each dollar spent at a local movie theater, an additional $1.50 is spent in surrounding businesses—restaurants, bars, transportation. Theaters are not just retail outlets. They are, as Cinema United’s Michael O’Leary put it, “cultural and economic anchors of communities of all sizes.”
When those anchors disappear, communities lose something that cannot be quantified in antitrust analysis. They lose a place where people sit in the dark with strangers and experience something together.
But cultivation requires that the theaters exist. And theaters require product. And the company that just acquired 25% of that product has spent years telling us, in plain language, that theatrical exhibition is an outmoded idea.
Maybe I’m just grieving something that was already dying.
But here is what I know: the Paramount decision created the conditions for independent cinema to flourish. And we are now watching those conditions be reversed—not by a return to the 1940s model, but by something structurally analogous and arguably worse. A single company that controls both the content and the dominant exhibition platform.
The Court in 1948 had the clarity to act. I don’t know if we do.
What I know is that Dunkirk was a Warner Bros. film. And that the company that now owns Warner Bros. would not have released it with a meaningful theatrical window. And that a version of my life where I watched Dunkirk on a laptop, alone, with the option to pause—that’s a version of my life where something important didn’t happen.
I don’t know how to weigh that against shareholder value or consumer convenience or the efficiency gains of vertical integration. I just know it’s real. And I know it mattered. And I know that the architecture being constructed will make it less and less possible for anyone else.
That’s not a solution. It’s just the truth, as clearly as I can see it.
Consent decree and Fin-Syn rules for tv. Combo of both. 2 days a week at the gym is a great start. Don't stop.
“And what I keep coming back to is this: the where and how of an audience’s encounter with a work is not incidental to the work. It’s constitutive of it.”
💯