A discussion paper prepared for Metropolitan Regional Information Systems Inc., a regional MLS that has about 58,000 customers in the Greater Washington, D.C., area, recommends that all MLSs implement copyright registration programs to provide legal protection for property listings information supplied by real estate professionals and others.
“Our intention with this discussion paper is to remind those that can lawfully assert copyright rights that they have legitimate recourse at their disposal if they feel their rights are violated,” the paper states.
Issues related to the copyright, control and ownership of property listings information have been debated for many years within the real estate industry, and there has been an increasing focus on these issues, the paper states, that has created “robust” and “at times contentious” discussions about the present state of the business and the future of the industry. Among new entrants to the industry are “alternative business models that propose to dramatically change the real estate industry,” as well as “new offerings from existing industry participants that may also impact the way the industry thinks about — and practices — real estate,” according to the paper.
The U.S. Department of Justice last year filed a lawsuit against the National Association of Realtors charging that the trade group’s policies relating to the sharing and display of online property listings information are overly restrictive, and that case is still in litigation. At the core of the lawsuit are issues related to the control and ownership of property listings information.
The paper, intended as an update to another MRIS paper released last year, also argues that the list price of a for-sale property can be protected by copyright, “since the list price can reflect the judgment of the real estate professional and/or the seller,” and that “content” is a more correct term than “data” to describe all of the aspects of property listings information, such as property descriptions, photos and virtual tours.
Brokers and MLSs should work to clarify the ownership of property listings information through the use of licenses and written copyright assignments, and should work to make “each property listing a joint work owned by the broker and the MLS for copyright purposes. This joint work is created by merging each listing broker’s and MLS’s respective copyright contributions into a merged, unitary, property listing with co-ownership of the respective copyrights,” the paper states.
This joint ownership proposal is stated in the paper as “a key building block” of the copyright registration program. The paper also states that MLSs should maintain a copyright enforcement program that allows MLSs to send out cease and desist letters to alleged copyright infringers and to file lawsuits, when necessary.
“Today’s real estate listings on MRIS include a combination of information such as photographs, house tours, floor plans, the agent’s original narrative commentary, maps, public record information, neighborhood information, list price and more. In addition, the information is collected, processed, selected, organized and arranged so that it presents the information in a useful format that we call the real estate listing. While some elements of the listings may not have the degree of creativity represented by, for instance, a song, when the totality of the listing is considered it becomes difficult to argue that the listing is comprised merely of unprotectable ‘data,'” the paper states.
Titled “Strengthening the Foundation: The Real Estate Listing Content Copyright FAQ” and “An Updated Program to Administer, Secure and Enhance the Value of Real Estate Listing Content,” the two-part paper was prepared by David Charron, MRIS president and CEO; Erik M. Feig, MRIS general counsel; and J.T. Westermeier, a partner in the DLA Piper Rudnick Gray Cary US LLP law offices.
The paper seeks to dispel myths and misunderstandings about copyright protections for real estate listings content.
“The real estate practitioners (who arguably have the most pressing need to understand the evolving landscape) are bombarded with messages that too often obscure rather than clarify how the real estate industry should address copyrights and ownership issues.” Among the misconceptions and mistruths, as stated in the paper: “Real estate listings merely are collections of unprotectable data — free for all to use. They don’t belong to anybody. Real estate listings belong to sellers — real estate professionals and multiple listing services merely transcribe materials that originate from the sellers. If they belong to anybody, it is the sellers. Copyrights and copyright infringement arguments are merely ‘speed bumps’ used to prevent progress and to keep new business models from competing.”
Russ Cofano, a Seattle lawyer who specializes in real estate law, said he disagrees with some of the points raised in the report, and he is planning to write up a detailed response. “It’s a very creative, well-drafted piece by some smart folks,” he said.
He said he “completely” disagrees with the perspective in the report that the listing price of a property is copyrightable, for example. “It’s the seller who typically comes up with (the listing price) and not the agent,” he said. “If it was copyrightable it would be copyrightable to the seller. In my opinion the argument does not have legal authority to back it. If challenged in court I believe that the court would find the listing price is a fact as opposed to a protectable element.” The listing price, as far as consumers are concerned, is definitely a very important aspect of property listings information, he said.
Also, the paper raises the issues of individual copyrights covering information in individual property listings, and the co-creation of listings by brokers and MLSs. MLSs typically hold the copyright for a compilation of property listings, though copyright claims for individual listings could lead to separate damage claims for each property listing that is allegedly infringed upon, Cofano said, adding that the challenge is to prove that both the brokers and the MLS are co-creators of the MLS listing information.
Under the program proposed in the MRIS paper, MLSs file quarterly applications for copyright registration of their automated database of property information. Sellers, who sometimes supply agents with photographs or other copyrightable materials related to a for-sale or for-rent property, can sign a copyright license related to the materials that they provide to the real estate professional, and agents, brokers, MLSs and photographers can also sign similar agreements related to the sharing, use and changes of copyrightable materials to support the property listings information, according to the paper.
Cofano said that the paper prepared by MRIS will continue to generate discussions on the topic of MLS information protection, and that’s a good thing.
“At the end of the day I think that we need to ask and continue to ask, ‘If we’re going to go through a significant effort to protect listing content, what is the underlying business objective gained from that protection?’ And that is where I think there is an unanswered question in the industry — at least in my mind as well as in many other peoples’ minds,” he said.
“Why the intense desire to create all of these mechanisms to sue people if they infringe, when there may be other ways to use this information and spend resources and time that are even more beneficial to the industry as a whole, including consumers.”
The paper, meanwhile, states that current industry practices lack clarity and legal certainty in asserting copyright ownership, and the industry needs to do better to guard one of its key assets.
“This (copyright registration) program should enhance the value of the content in the broker’s property listings and help brokers build asset value in their intangible intellectual property assets,” the paper states.