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First to Mark It

First to Mark It

Ashley Postlewaite, an animation producer who helps bring to life Dow's scrubbing bubbles and General Mills' Trix rabbit, is shooting for a chance at films or a TV series. But this is Hollywood, and as she shows off her new cartoon characters, she worries about a copycat stealing her designs.

That is, she used to worry. Now Postlewaite's ideas are zipped up tightly, thanks to technology developed by Firstuse.com, www.firstuse.com, a Camarillo, Calif.-based startup. The company provides an online registry that instantly stores, time-stamps and seals files in a tamperproof digital package.

Although it lacks the legal strength of a copyright, patent or trademark, a Firstuse.com filing could come in handy. "When you're taking your characters out and showing them to people, it seems silly not to protect yourself," says Postlewaite, executive producer at Renegade Animation Inc. in Burbank, Calif.

Firstuse.com founders Cliff Michaels and Craig Honick hope others will see things the same way. Launched in October 1998, the Firstuse.com Web site lets anyone who has intellectual property to protect, including screenwriters, inventors, software developers and Web site designers, to prove what they created but just as important when they did it. Firstuse.com accomplishes this without ever divulging the content of the work itself.

Firstuse.com's sort of third-party verification could be useful in case of a legal dispute, and there are plenty. Some 7,748 patent, copyright or trademark infringement cases were filed last year, according to federal figures. Many attorneys expect that number to climb with the popularity of the Internet, which makes it possible to easily download books, videos and all kinds of copyrighted material.

"Our ultimate goal is to not only help people defend [legal] claims but discourage theft in the first place," says Michaels. "We want the Firstuse.com logo to be known as a warning sign. "Michaels has a way to go before Firstuse.com achieves that status. Although the service has won support from such key players as the Academy of Television Arts and Sciences and the Association of Internet Professionals, its usefulness in legal disputes hasn't been tested. Company executives are careful to point out that a Firstuse.com registration certificate is not a substitute for obtaining a trademark, copyright or patent but rather a first step in the process. Yet some attorneys worry Firstuse.com could provide a false sense of security that would prompt creators of intellectual property to put off seeking the federal protections they need.

Mike Kirk, executive director of the American Intellectual Property Law Association in Arlington, Va., thinks some customers could misunderstand the protection they receive by registering with Firstuse.com. In the case of a trademark, for instance, the best legal protection isn't proving the creation of a logo or symbol but showing that their trademark has been used in commerce, Kirk says.

Mark Radcliffe, an intellectual property partner with the firm Gray Cary Ware & Freidenrich in Palo Alto, Calif., says the service could be useful in patent disputes where cases revolve around showing who developed an invention first.

While inventors often keep meticulous notebooks that could prove their case, Radcliffe says that keeping records offsite can be useful.

The same kind of data doesn't carry the same weight in a copyright suit, which centres on the finished product, not who had the idea first. Plus, American companies and individuals cannot go to court over copied work without first securing a copyright-even, Radcliffe notes, "if someone is taking 100 percent of your software [or other creative work] and making exact copies."Even so, Firstuse.com customers like Jim Weldon say the registry has helped them avoid legal disputes. Weldon is CEO of Schoolsoft.net, www.schoolsoft.net, an online data centre in Westlake Village, Calif., for parents seeking information about their child's school performance. He and a contractor got into a squabble over terms of a letter of intent, but luckily for Weldon, he had registered the letter with Firstuse.com. Before the pair exchanged legal blows, Weldon was able to prove his case with a copy of the original, unaltered letter.

Weldon is familiar with the low-tech ways of documenting creative work including sending documents via certified mail or keeping logs. For Weldon, who has software codes to shield, the old way meant giving materials to his attorney to copy and file-at US$ 50 apiece. Firstuse.com offers a fast, easy and cheap way to register corporate documents, says Weldon. By using Firstuse.com instead of a lawyer, Weldon estimates he's saving more than US$ 5,000 a year.

To use Firstuse.com, customers create a password-protected account and decide how often they expect to register work. The registration cost of a single, onetime transaction is US$ 15, though most customers pay less due to volume discounts. (For example, 100 registrations are US$ 450, or US$ 4.50 apiece.) The fees cover a five-year registration. After working out the financials, the process is simple. Customers go to the Firstuse.com site, enter user information and select a file on their hard drive to register. Any type and size computer file can be registered, including spreadsheets, database files, audio and video files and graphics. Firstuse.com makes a digital fingerprint of the file and sends an encrypted version to a Firstuse.com computer. The registry determines whether the file has been registered before. If it has, it cannot be registered again. If it hasn't, the site immediately time- and date-stamps the submission and returns an online certificate as proof.

Customers can print the certificate or store a copy on the Firstuse.com site.

Customers can view their files once Firstuse.com has fingerprinted them, but they can't change them without having to register-and pay-again.

Michaels says he and Honick came up with the idea for Firstuse.com out of necessity. The two were running a part-time business building Web sites when a customer presented a thorny problem. The customer, an intellectual property lawyer, told them about a client of his who had graphics stolen off a Web site.

The lawyer wanted to know how he could prevent digital thieves from doing the same thing to his site. He knew he could copyright the work, but he wanted instant, tamperproof protection.

The pair talked with government, copyright, patent and trademark offices around the world. Intellectual property lawyers told them about problems with the low-tech methods of documenting work. They met with computer scientists, Internet experts and cryptographers to learn about technologies for digital registration. In the end, they found that existing technologies along with some proprietary software and a user interface would allow them to do what they wanted. Firstuse.com relies on VeriSign Inc. of Mountain View, Calif., for secure Internet communications and digital certificates and Surety Technologies Inc. of Reston, Va., for cryptography and digital time-stamping.

Michaels won't discuss company revenues, except to predict they will reach "hundreds of millions of dollars" within three to five years. Because the company is new, he's also reluctant to divulge how many customers Firstuse.com has or even the volume of traffic the site has garnered. Michaels does say that Firstuse.com has customers in seven countries who are finding all sorts of new uses for the registry. Physicians are storing patient records in case of malpractice suits, and other customers who are worried about losing vital financial records due to year 2000 software problems are storing bank statements and tax records.

But Michaels and Honick have bigger plans. They hope to turn the site into a clearinghouse for intellectual property protection. Firstuse.com already includes links to U.S. government sources of copyright, patent and trademark information, and offers tips for protecting work. They plan to develop sections tailored to different types of customers, complete with industry-specific news, intellectual property law updates and data on upcoming seminars and conventions.

"For people to have a neutral safe haven [for their work] is critical," says Michaels. "When you have an idea or a record you want to protect, we want Firstuse.com to be the first place you go."-Jamie Beckett is a writer in Palo Alto, Calif., who can be reached via e-mail at beckettj@sfgate.com.

URL: www.firstuse.com

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