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Top Five Questions About Using MLS Data

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Top Five Questions About Using MLS Data Top Five Questions about Using MLS Data Katie Johnson NAR Associate Counsel [email protected] Can MLSs and brokers control how their listings are syndicated? Can MLSs and brokers control how their listings are syndicated? YES! ListHub ListHub Filters (coming soon . .) • MLS Preferred • Frequent Refreshing of Feed • Display Listing Agent Contact Info • Mobile App Point2 Point2 Point2 Publishers • Only use licensed content for advertising properties when they are for sale or rent • Cease the display of a specific real estate listing when that listing is no longer included in the feed of licensed content from Point2 Point2 Publishers • Display the listing agent’s or broker’s branding and contact information in a prominent manner • Provide all leads back to the listing agent at no cost to the agent • Provide error and metrics reports (e.g., statistics on how many times a listing was viewed) ListHub Publishers • Operate a business to consumer website • Cannot send or distribute the licensed content to any third party • Maintain all licensed content in publisher’s database and under publisher’s control at all times ListHub Publishers • Display consumer redirection URL • Route all leads to the broker or agent at no cost • Provide error and metrics reports • Publish ListHub feed of “MLS-sourced” listing over any other source regarding same property NAR Resources • “Syndication” page on REALTOR.org. – http://www.realtor.org/topics/syndication. • “Checklist of Issues to Address in a Syndication Agreement.” – http://www.realtor.org/topics/syndication/checklist-of- issues-to-address-in-a-syndication-agreement. Can an MLS sue a website for displaying their listings without authorization? Can an MLS sue a website for displaying their listings without authorization? YES! Current Litigation • Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., et al. – Civil Action No. 12-cv-000954-AW (So. Div. Dist. Maryland, filed Mar. 2012) • Regional Multiple Listing Service of Minnesota, Inc., d/b/a NorthstarMLS v. American Home Realty Network, Inc. – Civil Action No. 12-cv-000965-JRT-FLN (Dist. Minn., filed Apr. 2012) Neighborcity.com argued: • MLS databases are not original, so they are not entitled to copyright protection. • Even if the photographs are protectable, the facts that describe a parcel of real property are not. • MLS data is either publicly available, factual in nature, or the order and format were not literally copied. • Copyright registrations not valid because failed to identify authors of photographs and text. Neighborcity.com argued: • There is no irreparable injury to the MLSs – Neighborcity’s display or the MLS’s loss of exclusive control do not harm the reputation of the MLSs or the value of their databases. – MLSs acquiesced to losing control of the copyrighted material by allowing a Participant to use it any way it sees fit. • Affirmative defense – MLSs are misusing their copyrights to violate antitrust laws. Court grants MRIS motion for preliminary injunction • MRIS’s Terms of Use that must be agreed to by MRIS subscribers and that require subscribers to assign to MRIS all rights and interest to the images uploaded to MRIS database satisfies the transfer provision of the Copyright Act (17 U.S.C. § 204(a)) which requires a written conveyance signed by the owner of the rights conveyed. • The MRIS Database exhibits the requisite originality for copyright protection. Court grants MRIS motion for preliminary injunction • MRIS has shown that Neighborcity.com website content is not only substantially similar, but identical, to constituent, original elements of the MRIS Database. • MRIS has demonstrated that its loss of exclusive control over its copyrighted content is likely to lead to irreparable harm. Court grants RMLS motion for preliminary injunction • The photographs and narrative “agent remarks” and “public remarks” are likely copyrightable and copied by Neighborcity. • The Court found that RMLS had not established at the point of preliminary injunction, likelihood to succeed in protecting the selection of field descriptors such as “deck, patio, dock, balcony, kitchen window, etc.” Court grants RMLS motion for preliminary injunction • Neighborcity has detracted from the value of RMLS’s IDX data feed and Neighborcity’s use violates expectations created by RMLS’s contract wherein RMLS has agreed not to distribute listing content without consent form listing brokers. • When listing information is published in unauthorized places, especially if it causes RMLS participants to feel coerced into giving part of their commissions to Neighborcity, RMLS’s goodwill is very likely to be damaged. Have courts upheld copyright protection in MLS databases? Have courts upheld copyright protection in MLS databases? YES! Copyright Protection in Automated Databases • Automated database as a collection of facts, data, or other information which is one or more files organized into a format usable by a computer. These compilations of data are entitled to copyright protection because they are original works that organize existing information into a unique format or arrangement. Copyright Protection in Automated Databases • Unclear how strong this copyright protection is. – Photos and agent remarks will likely receive strong copyright protection – Copyright protection for the arrangement and selection of purely factual information, such as address and number of bedrooms, will likely be much thinner Copyright Protection in Automated Databases • Who owns the copyright for listing data? – Photographers? – Brokers? – Agents? – MLS? – MLS vendor? Copyright Protection in Automated Databases • How has MLS secured proper assignment or transfer of components of the listing compilation? – License from Participant and Subscriber to MLS – A/B option for Participant/Subscriber agreement – Transfer rights in Subscriber Agreement Copyright Protection in Automated Databases “Title to the information supplied by the Subscriber such as listing information shall remain with Subscriber’s undersigned Principal Broker Subscriber. All listing information submitted by MRIS Subscriber to MRIS for inclusion in the MRIS System shall be owned by MRIS Principal Broker Subscriber. To confirm this ownership MRIS Subscriber hereby irrevocably assigns to MRIS Principal Broker Subscriber, all right, title and interest in any and all such listing information including the ownership of any copyright rights related to and in any such listing information.” (MRIS Subscriber License and Access Agreement, sec 4.5) NAR Resources • “MLS Copyright Compilation Registration.” – http://www.realtor.org/law-and-ethics/mls-copyright- compilation-registration • “Copyright: MLS Photographs.” – http://www.realtor.org//ae/manage-your- association/association-policy/copyright-mls- photographs • “How to Manage and Protect Listing Content.” – http://www.realtor.org/topics/mls/managing-listing- content/how-to-manage-and-protect-listing-content Can an MLS prohibit participants from sharing its IDX feed with any third party? Can an MLS prohibit participants from sharing IDX feed with any third party? YES! IDX License or Participation Agreement – May not reproduce the listing content for any purpose other than selling, leasing, or appraising real estate. – Listings content may not be resold, licensed, or otherwise distributed. – Responsible for safeguarding and maintaining confidentiality of its password and is liable for any consequences that may result from its disclosure. IDX License or Participation Agreement – May not receive any compensation for listing content from third parties. – Liquidated damages for unauthorized use (e.g., $1,000 per listing). – Indemnification provision whereby participant or subscriber must indemnify MLS for any liability arising from a claim based upon unauthorized use of their password, unauthorized use of the MLS database, or infringement of any proprietary or contract right of any third party. IDX Policy (Multiple Listing Policy Statement 7.58) • “ . on participants’ public websites and displays using applications for mobile devices that participants control.” • “All displays of IDX listings must also be under the actual and apparent control of the participant, and must be presented to the public as being the participant’s display.” IDX Policy (Multiple Listing Policy Statement 7.58) – Actual control requires that the participant has developed the display, or caused the display to be developed for the participant pursuant to an agreement giving the participant authority to determine what listings will be displayed, and how those listings will be displayed. – Apparent control requires that a reasonable consumer viewing the participant’s display will understand the display is the participant’s, and that the display is controlled by the participant. NAR Resources • “Managing Listing Content.” – http://www.realtor.org/topics/mls/managing-listing- content. • Sample Documents for MLS Listing Content. – http://www.realtor.org/topics/mls/managing-listing- content/sample-documents-and-implementation-guides- for-mls-listing-content-module. • “Model IDX Provisions for MLS Rules.” – http://www.realtor.org/topics/internet-data-exchange- idx/model-idx-provisions-for-mls-rules How does an MLS apply the requirement that a participant be actively engaged in the real estate business? How does an MLS apply the requirement that a participant be actively engaged in the real estate business? CAREFULLY! MLS Participant • MLS Policy Statement 7.9 defines an
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