At whose bidding?

Consider EBay's situation. The French court ruling could prompt the company, which says it spends more than $20 million annually to deter counterfeits, to abandon the French market or bar all sales in luxury product lines. Such moves would protect Vuitton's trademarks but hurt the apparel and accessory companies that use the French EBay as their storefront, as well as the consumers who shop or resell goods there. There's a fairness issue too. If Vuitton is responsible for enforcing its trademarks, the costs are passed on to Vuitton customers. If EBay has to enforce them, the costs will be borne by everyone who buys or sells there -- most of whom aren't in the market for haute couture.

It's not easy to find the right balance between protecting intellectual property and promoting new forms of commerce and communications. New technologies arrive continuously to make it either easier or harder to deter piracy. The principles that should guide policymakers, though, were well defined by the U.S. Supreme Court in the Sony Betamax ruling in 1984 and the Grokster decision in 2005. Technologies with substantial legitimate uses and online intermediaries that do not encourage people to infringe shouldn't be forced to serve as copyright and trademark cops.