Did Grokster really win?

This is an interesting take on the MGM vs Grokster case.

Still, I don't agree with the writer. Towards the end, there is this paragraph:

As long as the courts apply high standards for inducement liability - requiring proof of overt acts of inducement, underlying acts of infringement, and a specific intent to induce infringement - there should be ample room for innovative technologies to continue to thrive. Engineers will need to watch what they say during the development process, and firms will need to think carefully about how they should go about building markets for their products and services. But shouldn't they be exercising such care even without the Court's guidance about inducement liability?

My problem is, now that there is the opening "What are engineers saying", there will be tons of lawsuits file, some valid, some invalid that will attempt to prove that engineers said "We are trying to do legally something illegal here". This definitely have a chilling effect on innovation, at the very least in the US. The development team will have to constantly worry about every word that comes out of their mouth, and even if they are careful, well, they might still be sued because some company will be claiming they could have done better, etc.

Imagine the following exchange in the development department:

John: Jack, do you think we could implement a filter that checks if a song is part of the library of illegal files?

Jack, in his head: If I say yes and we don't do it, that might be held against us, but if I say no and we don't do it, then some third party will argue we could have done it and weren't serious about it, but if I say say and we do it and we fail, then they will claim we didn't try hard enough...

Jack, whispering: What was that question again? Is there a microphone in the room?

I don't think this sounds like a innovation conducing environment...

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