What are Smart Tags? People are not totally sure. Yet Smart tags are already in the hot seat. Where do people get off being angry with Microsoft before a new tech is even released? Many people feel that Microsoft is abusive with it's market influence, and that this will be no exception. A fair number of people believe that Microsoft will perhaps use their huge installed base of web browsers to popularize the new browsing feature. The theory is, that once the tags are normalized with users, that Microsoft will be able to change the appearance of web pages from the comfort of Microsoft central. They could conceivably wage whole marketing campaigns, or squelch nay-sayers with a few keystrokes. Free speech on the Internet will be ruined! Society and mankind will devolve! Yea right, it will never get that far.

To add more shock to the above statement now is a good time to tell you that I am the president of the Long Island Linux Users Group. I am a fairly avid Linux advocate. Why I am saying not to worry about smart tags to much? Why am I even writing this? Because I think Microsoft is about to do something very stupid. Something dumb enough to sink the company if they stick to it. Linux needs a Microsoft. Many Linux geeks feel as if they are fighting an evil empire when they code something great. Without an evil empire to fight, the volume of inspired works will shrink, even dwindle.

Corporate lawyers will save the Internet from Smart Tags(TM).

Although I am not a lawyer, understanding and defending the GPL has helped me grasp the foundation of intellectual property law. Here is my approximate understanding of the four most major types.

PATENTS - about an eighteen year monopoly on some "new" "technology".

THE GOOD THING: The prospect of government granted monopolies inspires companies to dump billions into research and development.

THE BAD THING: "new" and "technology" are VERY subjective.

TRADE SECRETS - Companies keep things a secret

THE GOOD THING: No worries about other companies making subtle changes around patented specifications.

THE BAD THING: Once the information is out, it's out.

COPYRIGHT - Protection for creative works for 80 years plus the life of the author.

THE GOOD THING: More content is created because terms can be named for use.

THE BAD THING: Copyright (practically) never goes stale, wealth and rights to use are distributed far to unevenly as a result.

TRADEMARK LAW - In context, words, names, and slogans become property of companies that trademark them.

THE GOOD THING: Companies can invest in advertising and slogans and their customers will not be tricked away from them.

THE BAD THING: Trademarks expire if violations are not vigorously perused.

Millions of words are, or are part of, trademarks. Words are exactly what Microsoft will be linking with it's smart tags. Sometimes, most likely by accident, smart tags will link to words in trademarked phrases to a Microsoft site. Whamo, trademark violation. Guess what, that trademark holder has to sue Microsoft, or they could lose the trademark. Microsoft would be pitting it's own intellectual property lawyers against the IP lawyers of a good chunk of the world.

So how do people and companies avoid stepping all over registered trademarks in advertising and even regular conversation? Context. What you are reading, listening, or watching at the time paints the context. A person watching beer commercial and another reading a book review will think different, and the meaning of the same catchy phrase will be different as well.

What would a violation look like?

Let me give a real example. There is a fairly new motorcycle company called Victory. They have a trademarked line of bike called the sport cruiser. A Smart Tag might confuse the word sport and link it to sportsillustrated.cnn.com or whoever else bought that slot from Microsoft. Let's say that our popular magazine can see that our user likes motorcycles from his cookies and runs a decent size Yamaha motorcycle advertisement(a fairly usual occurrence). The word sport in "sport cruiser" directly led a user to a competitors add. A blatant trademark violation.

These types of things are not easy to predict either. Type "sport" and "victory" into any web search engine and you won't get anything about motorcycles. Instead you will get blurbs and articles about soccer and baseball games. Popular search engines are fairly high on the scale of the capabilities of Artificial intelligence, yet without the full context it can easily get confused. I gave an easy example compared to the real world. The word hog is far less telling but is trademarked by Harley Davidson. Could you picture where "the hog felt great between my legs" might lead you. I don't think Harley would like that much.

These violations would be complicated by the fact that Microsoft has the influence it does over the market. I don't believe it would be as strong a case against another company implementing something similar. Why? Several companies have come up with and implemented this idea before Microsoft, but consumers have to approach them. You would have to seek their product out, pay for it, and install it all of your own accord. Microsoft may hand the DOJ a working copy of motive for flooding the market with IE to destroy Netscape on this one. Their motive of subverting and taxing(though selling redirect slots) traffic and commerce on the web itself. Remember they are still legally a monopoly at this point, and their breakup is still pending.

Microsoft vs capitalist earth.

Smart tags don't sound all that bad, right? It could be useful to instantly cross reference any interesting words or phrases. Isn't Microsoft's right to innovate be interfered with here? That is very possible. It their browser and their Operating system, and they should be allowed to exercise some control over how they work.

Microsoft might want open this up a bit to cover their posterior end. The impending trademark violations will depend on the argument that users did not have the choice or the the know-how to make a choice about the use of smart tags. If one trademark holder has the means and sees an infringement lawsuit through to the end successfully, it could mean everyone would have to sue. A judge ruling that errant smart tags, however unintentional, constituted a trademark violation, could be financially devastating to the software giant. Furthermore if the ruling of guilt did not depend on the destination the tag lead too, but applied to any smart tag redirection, trademark holders would have no choice but to sue for every instance.

Microsoft vs RFC

Microsoft could lessen the damage of a successful prosecution by showing that the links destination had to be intentionally subversive to that context. That could be successful for them but is risky. A less risky path is to anticipate the "users had no choice" argument and make it easy for users to shut the tags off, or get their content from elsewhere.

Not known for developing and then sharing, Microsoft may have to break that trend these days. Being a monopoly(in fairness still pending) requires that you help out the little guy in order to not not break the law. There are a couple of things they could do to show that monopoly power was not used to redirect other companies hard earned web profits to their own.

RFC(Request For Comments)- Putting up some example code and a specification for the interaction between the server and IE would allow "those other browsers" to run similar code. More important than that would to be to allow other people to run competing smart tag servers using the protocol. They would also need to enable an easy dialog to change the parent smart tag server.

TOGGLE BUTTONS, SPECIAL FONTS- Make a prominent button on the top of the browser to toggle smart tags. All right click dialogs should have a toggle too. The toggle should be persistent until pressed again. All smart tags should also be separate fonts and colors from the other text when toggled on.

Both of these things will (at least in part) demonstrate the service was optional and therefore not subversive. Once they establish that they did not force anyone to view the world(and trademarks) their way, Microsoft could then send their legal attackers down the slippery slope of trying to defend content viewing-method control for the sake trademark protection. Trademark holders would also be pitting themselves against freedom of expression rights. Fighting the argument "I can run web pages through any filter I want at my end", might be a tough enough argument to deter would-be lawsuits.

smart tags are the future.

So why go to the trouble of writing this? A few reasons...

Foremost I believe smart tags are a great idea. What better than a configurable source of metadata for an information source that so many spend so much time sorting through. I would look forward to being able to subscribe to multiple services and at the price of a few adds mixed in, to see totally different perspectives on important pages. This will happen soon enough even without Microsoft, but the sooner the better.

It is possible that a non-open implementation of smart tags will delay their ultimate adoption. That would be sad, they can do a lot of good for enhancing ideas. For everyone from Newspaper editors to subway graffiti artists to be able to comment on web content could finalize the Internet age's status to the next golden age. Meta-content creators should be able to contribute with no burden but their own time. If users can change between smart tag sources easily, that is very compelling indeed.

I hate to see anyone in the tangle of litigation that Microsoft might land in with the total (and sometimes conflicting) trademarks of the world at stake. I'd hate even more to be the guy to try to write the code to get out of that tangle. :) I don't want to see Microsoft go away any time soon. They spend a lot of time thinking about how to make predictable things simple, which is very rare out there. Linux needs a strong competitor, and I fear a world without Microsoft almost as much as I fear a world without Linux. I'm all about choices, and for their own sake, smart tags should be a choice too.

Matthew Newhall