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Copyright Considerations Related to Proposed Changes to Display of Sold Information

One of the proposed changes that will be considered during the meeting of the Multiple Listing Issues and Policies Committee Meeting on November 4, 2017 is a change to MLS Policy Statement 7.58, Internet Data Exchange Policy as noted below.

Possible Recommendation:

That brokers have access to all available sold listing data maintained by the MLS starting from January 1, 2012 for display in IDX, maintaining the existing exception to exclude areas where “sold” information is not publicly accessible:

MLS Policy Statement 7.58 provides, in pertinent part:

To comply with this requirement MLSs must, if requested by a participant, promptly provide basic downloading of all active listings, a minimum of three (3) years sold* listing data, sold* listing data starting from January 1, 2012; non-confidential pending sale listing data, and other listings authorized under applicable MLS rules and may not exclude any listings from the information which can be downloaded or displayed under IDX except those listings for which a participant has withheld consent, or listings for which the seller has prohibited Internet display. Associations and MLS’s can also offer alternative display options including framing of board, MLS, or other publicly-accessible sites displaying participants’ listings (with permission of the framed site). For purposes of this policy, “downloading” means electronic transmission of data from MLS servers to MLS’s IDX download must be refreshed to accurately reflect all updates and status changes no less frequently than every twelve (12) hours. Data transmitted must exclude the listing or property address, respectively, of any seller who affirmatively directs that the listing or the property address not appear on the Internet or other electronic form of display or distribution.

(Note: accompanying revisions will be made to the NAR Model MLS Rules and Regulations.)

Some in the real estate community have expressed concern that MLSs may expose themselves to lawsuits and/or claims of copyright infringement by providing photographs that were included with the sold listing data to participants for their IDX and VOW display. NAR’s legal counsel offers the following points about listing photographs and copyright Infringement:

  • MLS policy has always required participants and subscribers to agree to use submitted listing content as required to accomplish the core purpose of MLS (as defined in MLS policy). Using listing content for sold properties has always been included in the core purpose of valuations, such as CMAs and appraisals.
  • Participants and subscribers have been expected to obtain proper rights in the listing content, including photographs, as required by their MLS. If participants and subscribers do not own the listing content they submit to the MLS and they have not obtained proper permission, they must either refrain from submitting the unauthorized content or work with their MLS to implement use of the listing content within the permission that has been granted.
  • From a risk perspective, participants and subscribers should also take caution to ensure that they’ve obtained the necessary rights (or better yet ownership) in the photographs they distribute to other third parties as well, including portals.
  • In 2006, NAR published a “Managing Listing Content” toolkit that included education and sample forms on how to obtain all rights necessary to provide listing content as required by MLSs; including guidance on “How to Build a Chain of Ownership.” The Managing Listing Content Toolkit is still relevant but is scheduled to be updated in 2018. It’s available here.
  • Beginning in 2012, NAR ramped up its efforts to encourage all participants, subscribers, and MLSs to comply with the DMCA Safe Harbor with regard to IDX sites. That effort continues today and includes numerous live presentations, videos, articles, and other guidance on how to easily comply with the DMCA Safe Harbor:
  • In 2015, the NAR MLS Committee adopted the informational policy statement MLS policy Section 16: Digital Millennium Copyright Act, Safe Harbor which explains how the DMCA Safe Harbor can help participants and subscribers avoid copyright infringement for third party photos appearing on their IDX sites.
  • When VHT filed its copyright infringement suit against Zillow in July 2015, NAR learned that this nationwide photography network issued only limited licenses to its real estate customers and not ownership of the images. Since then, NAR legal has led industry efforts to educate members about the need and desirability to own the listing photographs, including providing sample photography agreements member can freely use. A summary of the litigation is set forth in this video.
  • Beginning in 2015, MLS policy began requiring inclusion of sold information in IDX for prior three years (therefore, sold info beginning 2012). Sold information is defined in Policy Statement 7.58. MLSs, participants, and subscribers are NOT required to distribute photographs that they don’t have legal rights to.

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