For his part, he thinks Third Voice is in the clear. Because users must have the utility running to even see the postings--which are stored on Third Voice's server--he says, they cannot be considered guilty of creating a "derivative work." Zittrain eschews the graffiti analogy; using the software, he argues, is more like painting a mustache on the Mona Lisa through a transparency.
Whatever the future holds for Third Voice, the issues it raises are here to stay. A similar freeware utility called Gooey launched in June, promising to make users members of a "Dynamic Roving Community." It's essentially a mobile chat board, in which any current visitor to a Web site can talk to other Gooey users visiting that site. Like Third Voice, Gooey is still in the beta phase, and the reality is far less "dynamic" than the theory, but the implications are dizzying.
"These applications add another level of dimensionality to the Web," says Tara Lemmey, president and executive director of the Electronic Frontier Foundation, a San Francisco-based electronic civil-liberties group. "There's a serious need for public space online as well as in the real world, and these utilities are a step in that direction." She adds the caveat that because Third Voice and Gooey are both private companies, the forums they provide are not really public. "This all raises the question 'Should government provide such a public space on the Internet?'"
The philosopher Walter Benjamin once had a dream--that mediums of mass communication could become two-way modes of discourse, whereby the people spoke directly to the people. So far the Web has based itself on media models--broadcast, print--that forsook that vision. If and when it gets its own Speaker's Corner, the noise that issues forth will be sure to annoy and offend. It's an ugly thing, but, to subvert a line from Stanley Fish, it's a good thing, too.