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Fight the power | 1, 2, 3, 4


Insurgents wear many hats. Disney is hardly the only company concerned about the downside of a merger between AOL and Time Warner. Here are a few more potential enemies of the state:

  • Other ISPs: Of the more than 7,100 extant providers, AOL (with 21 million members) is far and away the largest. The next largest, Earthlink, is less than a sixth its size -- and that's after acquiring Mindspring. All of these providers have a vested interest in open access.




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  • Search engines and portals: Yahoo is still the second-most-trafficked site on the Web, sandwiched between No. 1 AOL.com and the Microsoft sites. But how soon would that change if the country went cable? AT&T already controls Excite@Home. The news that AOL would be available on Time Warner cable was the dog-bites-man story of the year. You can bet that Yahoo and all of its rivals, such as Disney's sixth-rated Go Network, are looking for some protection.

  • Other entertainment companies: Edgar Bronfman is surely watching merger developments closely. Seagram holds 92 percent of the Universal Music Group and Universal Studios, and would love to see its music, movies and television programs carried to consumers via broadband. But what price carriage?

  • Other Web content providers: Contrary to some press reports, the Web world did not shudder when AOL and Time Warner announced their plans to merge in January. There were so many ill feelings toward both companies -- and such contempt for their attempts to dominate the Web -- that it took a while for the implications of the merger to settle in. But you can bet there has been some talk of alliances since, with unaffiliated content sites looking to circle the wagons.

    And then there's the European Union Commission, which announced Tuesday that it has delayed a decision to begin a full-scale probe of the merger until June 19.

    Calling Judge Jackson

    Meanwhile, back in the States, interested parties are wondering if the FTC might be less inclined to go easy on the merger in the wake of the Department of Justice's successful suit against Microsoft. The DOJ and the FTC have joint authority under the Sherman Antitrust Act over mergers (the DOJ got AT&T-Media One; the FTC, TBS-Time Warner) and, according to the Media Access Project's Schwartzman, "the FTC and the Justice Department also have this rivalry. Each one wants to show that they can be tougher than the other. The fact that the Microsoft case has gone forward gives [FTC chairman Robert] Pitofsky some incentive to show that his is bigger than [Microsoft prosecutor] Joel Klein's. Or gives him more political cover to do what he wants to do."

    Pitofsky, a former Georgetown University law professor with an interest in the interaction between the First Amendment and antitrust laws, is, by all accounts, of an open mind. "He thinks this proceeding is an extremely important one, that this would be a new kind of business company," says Schwartzman, "and not necessarily a bad one. But there are aspects of it that are problematic; this thing will get an unusually thorough scan from the FTC." (Neither the FTC nor the FCC can comment on matters under review.)

    Get me a rewrite

    A smaller voice in the midst of all this cacophony comes from the people who actually create a lot of the content in question: lowly scribes. The National Writers Union is filing an objection to the merger, claiming that Time Warner discriminates against freelancers with its "all-rights contracts." These contracts, which compel writers and illustrators to sign away rights to their work "in perpetuity," have become the norm in media companies. Jay Tasini, NWU president, contends that the effect of all-rights contracts will be more insidious as writers' work is spread out across more platforms.

    "This merger, in our view, gives Time Warner the right to concentrate copyright in their hands," he says. "That will affect the diversity of content in the marketplace, and could even ultimately affect consumer prices: If Time Warner owns all copyright, they can set prices as they see fit."

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