The court quoted an internal e-mail from a company executive stating: "We have put this network in place so that when Napster pulls the plug on their free service...or if the court orders them shut down prior to that...we will be positioned to capture the flood of their 32 million users that will be actively looking for an alternative." (Napster was a first-generation peer-to-peer file-sharing service that was shut down in 2001 after being sued by the music industry.)

The Supreme Court highlighted Grokster promotional materials that urged customers to consider the company's product as something to help them "get around" the closure of Napster and emphasized that the business models of the defendant companies "confirm that their principal object was use of their software to download copyrighted works." The Grokster defendants thus seemed to be aware that their actions took them perilously close to the line of unlawful conduct, and perhaps thought they could use the Sony doctrine's imprecision as an excuse or to make it seem that any violation was inadvertent. The court's recitation of evidence dispels that, and should be a warning to any creator of an innovative copy-making technology.

The court thereby provided a crisp checklist of dubious practices to avoid. It allows us to recommend that innovators give serious consideration to the following (offered not as legal advice but as prudent precautions):

Recognize that business models and plans (and any other internal correspondence) have the high potential to be read by unintended audiences—including trial judges and juries—who will hold the authors and their companies accountable for the intentions preserved in such records.

Review with counsel the kinds of expressions that can disqualify a company from the protections of the "staple article of commerce" defense and start training officers, directors, and engineers to give clear guidance on the kinds of expressions to avoid in business plans, advertising materials, and internal correspondence.

Recognize that the more senior the position held by a person in a company, the more accountable the company may be for what that person writes concerning its intentions, plans, and policies. As a result, there is a continuous need to remind senior officers and directors to view all internal correspondence as if it might be blown up as a large exhibit in a courtroom, where thoughtless expressions will appear as deliberate compositions and seemingly small ideas will be magnified.

Recognize that the courts are increasingly articulating what might be viewed as a duty to be wary of the misuse of one's inventions—which includes responding diligently when a company becomes aware of such misuse. This duty is perhaps best expressed by Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit, in his opinion in a case holding Aimster, another file-sharing service, liable for infringing uses of its service: if the infringing uses of an innovative technology "are substantial, then to avoid liability as a contributory infringer the provider of [that technology] must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses." [Emphasis added.]

To avoid such liability, include in the company's formal policies and procedures, and in training sessions, a firm and clear instruction that whenever the company becomes aware that its inventions or technologies are being used by customers to infringe on copyright-protected works, the company will quickly take measures to halt, limit, or otherwise mitigate the infringing activity and the damage done to copyright owners.

To place those factors in context, one need only highlight the Supreme Court's summary of its decision in the Grokster case: "One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." [Emphases added.]

The Grokster court decision did not unleash on the engineering community any destructive beam from a Death Star, although many predicted that would be the result and some may claim it was the result. Instead, the court, as courts often do, proclaimed that it was not changing the law and then proceeded to change the law by moving the line established by the Sony doctrine. It drew a line that responsible companies may not always find easy to accept, because respecting it conflicts with pursuit of revenues.

It may also be necessary to reduce the chance of inadvertently creating evidence in the daily exchanges of e-mail, instant messages, and so on that people send and forget.

Rereading e-mail before sending it and reviewing business plans with your counsel before adopting them are not costly measures, but they can save a good company from the perils and exorbitant costs of litigation and the damage to reputations that litigation brings, even to those who prevail.

Companies have a duty to be wary when they develop technologies that could be used to infringe on copyrights. It is not a new duty, but it is an enhanced one under the Supreme Court's refinement of the Sony doctrine.