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All this considered, Third Voice would do well to expect more trouble down the pipeline. Jonathan Zittrain, executive director of the Berkman Center for Internet & Society at Harvard Law School, says he would be surprised if some of these issues were not addressed in a court of law. But, he says, "it's not a slam dunk in either direction." There's still very little case law concerning the application of constitutional and property doctrines to the Internet, and a suit against Third Voice would chart new territory. "This wonderfully integrates a lot of themes: intellectual property, free speech, property rights," Zittrain says. For his part, he thinks Third Voice is in the clear. Because a user must have Third Voice running to even see the postings, he doesn't think they are guilty of creating a "derivative work," an area of copyright law already rife with nuance. The postings themselves are stored on Third Voice's server; they are a separate and discrete layer of information. He uses the analogy of painting a mustache on the Mona Lisa through a transparency. Zittrain is already preparing a mock case concerning Third Voice to present to his students at Harvard Law. His arguments have been persuasive enough that Third Voice asked him to sit on their advisory board, an offer he decided to accept in the days following our interview.
Whatever the future holds for Third Voice, the issues raised by the software are here to stay. A similar freeware utility called Gooey launched in June. Users find themselves members of what Gooey call 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 beta phase, and the reality is far less "dynamic" than the theory, but the implications are dizzying. Even Michigan State's Bowers admits software like Gooey and Third Voice represents an evolutionary step for the Web.
"These applications add another level of dimensionality to the Web," says Tara Lemmey, president and executive director of the Electronic Frontier Foundation, a San Franciscobased 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 for dissent they provide are not really public. "This all raises the question, 'Should government provide such a public space on the Internet?"'
Walter Benjamin once had a dreamthat 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, printthat forsook that vision. The Web may yet get 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.