A Peek Behind the Scenes of Supreme Court Decision Making Concerning the Federal IP System

In the 1970s and 80s, the Supreme Court decided three cases that continue to define the limits of the authority of the states within the federal intellectual property system: Goldstein v. California (1973); Kewanee Oil Co. v. Bicron Oil Co. (1974); and Bonito Boats v. Thunder Craft Boats, Inc. (1989). The papers of the Supreme Court Justices that decided these cases show the Court as a human institution wrestling with this complex issue. This issue has assumed new importance as state legislatures have rushed to enact laws on the use of generative artificial intelligence to replicate the voice and likeness of celebrities. Additionally, as ever more content is distributed to consumers in digital formats subject to license agreements, courts will have to consider whether license terms inconsistent with copyright exceptions are enforceable under state contract law.