Opinion of the Court.

334 U.S.

Monopoly power is not condemned by the Act only when it was unlawfully obtained. The mere existence of the power to monopolize, together with the purpose or intent to do so, constitutes an evil at which the Act is aimed. United States v. Griffith, ante, p. 100; United States v. Aluminum Co. of America, 148 F. 2d 416, 432. But whether that condition will obtain in this case must await the findings on the other phase of the case.

We accordingly set aside the divestiture provisions of the decree so that the District Court can make the findings necessary for an appropriate decree. We approve the dissolution of the pooling agreements, the prohibition against buying or booking films for theatres in which Schine has no financial interest, and the restriction on future acquisitions of theatres. See United States v. Crescent Amusement Co., supra, pp. 185–187. We do not reach the question of the appointment of a trustee to sell theatres as that merely implements the divestiture provisions which must be reconsidered by the District Court.

The judgment of the District Court is affirmed in part and reversed in part and the cause is remanded to it for proceedings in conformity with this opinion.

So ordered.

MR. JUSTICE FRANKFURTER concurs in the result.

MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took

no part in the consideration or decision of the case.

Syllabus.

UNITED STATES v. PARAMOUNT PICTURES, INC. ET AL.

NO. 79. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.*

Argued February 9-11, 1948.-Decided May 3, 1948.

The United States sued to restrain violations of §§ 1 and 2 of the Sherman Act by (1) five corporations which produce motion pictures and their respective subsidiaries or affiliates which distribute and exhibit films and own or control theatres, (2) two corporations which produce motion pictures and their subsidiaries which distribute films, and (3) one corporation engaged only in the distribution of motion pictures. The complaint charged that the first group of defendants conspired to and did restrain and monopolize interstate trade in the exhibition of motion pictures in most of the larger cities of the country and that their combination of producing, distributing and exhibiting motion pictures violated §§ 1 and 2 of the Act. It also charged that all of the defendants, as distributors, conspired to and did restrain and monopolize interstate trade in the distribution and exhibition of films. After a trial, the District Court granted an injunction and other relief. Held:

1. The District Court's finding that price-fixing conspiracies existed between all defendants and between each distributor-defendant and its licensees, which resulted in exhibitors being required to charge substantially uniform minimum admission prices, is sustained. Pp. 141–142.

2. Its injunction against defendants or their affiliates granting any license (except to their own theatres) in which minimum prices for admission to a theatre are fixed, is sustained. Pp. 142-144.

*Together with No. 80, Loew's, Incorporated et al. v. United States; No. 81, Paramount Pictures, Inc. et al. v. United States; No. 82, Columbia Pictures Corp. et al. v. United States; No. 83, United Artists Corp. v. United States; No. 84, Universal Corp. et al. v. United States; No. 85, American Theatres Assn., Inc. et al. v. United States et al.; and No. 86, Allred et al. v. United States et al., also on appeal from the same court.

(a) The fact that defendants owned copyrights to their films and merely licensed their use by exhibitors did not entitle them to conspire with each other to fix uniform prices of admission to be charged by exhibitors. P. 143.

(b) Nor did it justify the conspiracy between each distributordefendant and its licensees to fix and maintain uniform minimum admission prices which had the effect of suppressing price competition between exhibitors. Pp. 143–144.

(c) A copyright may no more be used than a patent to deter competition between rivals in the exploitation of their licenses. P. 144.

3. The District Court's finding that there was a conspiracy to restrain trade by imposing unreasonable "clearances" is sustained. Pp. 144-147.

4. Its injunction against defendants and their affiliates agreeing with each other or with any exhibitors or distributors to maintain a system of "clearances," or granting any "clearance" between theatres not in substantial competition, or granting or enforcing any "clearance" against theatres in substantial competition with the theatre receiving the license for exhibition in excess of what is reasonably necessary to protect the licensee, is sustained. Pp. 147–148.

(a) A request that it be construed or modified so as to allow licensors in granting "clearances" to take into consideration what is reasonably necessary for a fair return to the licensor is rejected. Pp. 147-148.

(b) In the setting of this case, the only measure of reasonableness of a clearance by Sherman Act standards is the special needs of the licensee for the competitive advantages it affords. P. 148.

5. A provision of the decree that, "Whenever any clearance provision is attacked as not legal . . . the burden shall be upon the distributor to sustain the legality thereof," is sustained. P. 148.

6. The District Court's finding that the exhibitor-defendants had "pooling agreements" whereby normally competitive theatres were operated as a unit, or managed by a joint committee or by one of the exhibitors, the profits being shared according to prearranged percentages, and that these agreements resulted in the elimination of competition pro tanto both in exhibition and in distribution of feature pictures, is sustained. P. 149.

7. Its requirement that existing "pooling agreements" be dissolved and its injunction against any future arrangement of that character are sustained. P. 149.

8. Its findings as to the restraint of trade by means of arrangements under which many theatres are owned jointly by two or more exhibitor-defendants, its requirement that the exhibitor-defendants terminate such joint ownership of theatres, and its injunction against future acquisitions of such interests, are sustained. Pp. 149-151.

9. Its order that certain other relationships involving joint ownership of theatres by an exhibitor-defendant and an independent be dissolved and its injunction against future acquisitions of such joint interests must be revised after further inquiries and findings upon remand of the cases. Pp. 151–153.

(a) It erred in failing to inquire into the circumstances under which each particular interest had been acquired and in treating all relationships alike in this portion of the decree. P. 152.

(b) To the extent that these acquisitions were the fruits of monopolistic practices or restraints of trade, they should be divested and no permission to buy out the other owner should be given a defendant. P. 152.

(c) Even if lawfully acquired, divestiture of such interests would be justified if they have been utilized as part of the conspiracy to eliminate or suppress competition. P. 152.

(d) If the joint ownership is an alliance with one who is or would be an operator but for the joint ownership, divorce should be decreed, even though the affiliation was innocently acquired. P. 153.

(e) In those instances where joint ownership involves no more than innocent investments by those who are not actual or potential operators and it was not used in furtherance of the conspiracy and did not result in a monopoly, its retention by defendants would be justified and they might be given permission to acquire the interests of the independents on a showing by them and a finding by the Court that neither monopoly nor unreasonable restraint of trade in the exhibition of films would result. P. 153.

10. The District Court's findings that certain "formula deals" covering the exhibition of feature pictures in entire circuits of theatres and certain "master agreements" covering their exhibition in two or more theatres in a particular circuit unlawfully restrain

trade, and its injunction against the making or further performance of such arrangements, are sustained. Pp. 153-155.

(a) Such arrangements are devices for stifling competition and diverting the cream of the business to the large operators. P. 154.

(b) The pooling of the purchasing power of an entire circuit. in bidding for films is a misuse of monopoly power insofar as it combines theatres having no competitors with those having competitors. United States v. Griffith, ante, p. 100; Schine Chain Theatres v. United States, ante, p. 110. Pp. 154–155.

(c) Distributors who join in such arrangements by exhibitors are active participants in effectuating a restraint of trade and a monopolistic practice. P. 155.

11. The findings of the District Court with reference to "franchises" whereby exhibitors obtain all feature pictures released by a distributor over a period of more than a motion picture season are set aside, so that the court may examine the problem in the light of the elimination from the decree of the provision for competitive bidding. Pp. 155-156.

12. On the record in this case, it cannot be said that "franchises" are illegal per se when extended to any theatre or circuit no matter how small. P. 156.

13. The findings of the District Court as to "block-booking" and its injunction against defendants performing or entering into any license in which the right to exhibit one feature is conditioned upon the licensee's taking one or more other features, are sustained. Pp. 156-159.

(a) The result of this practice is to add to the monopoly of the copyright in violation of the principle of the patent cases involving tying clauses. P. 158.

(b) Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U. S. 637, distinguished. P. 159.

(c) The selling of films in blocks or groups, when there is no requirement, express or implied, for the purchase of more than one film is not illegal; but it is illegal to refuse to license one or more copyrights unless another copyright is accepted. P. 159.

14. The provision of the decree regulating the practice of "blindselling," whereby a distributor licenses a feature picture before the exhibitor is afforded an opportunity to view it, is sustained. P. 157, n. 11.

15. The District Court's findings that defendants had unreasonably discriminated against small independent exhibitors and in