One of the most interesting things about being an expert witness is recognizing how companies can avoid costly litigation. Zillow actually tested the courts in the case of VHT v. Zillow. The facts of the case were reported by Inman News. In summary, VHT filed for copyrig
ht on their images. The copyright was granted. VHT then provided a notification of their filing and requested removal. Zillow refused. VHT sued. The court awarded damages. I think the case is on appeal. This issue is not with Zillow or any other portal, it is about protecting the rights of copyright holders and giving privacy to families that buy homes.
MLS Copyright Challenge
Sometime in 2017, the Library of Congress Copyright Office changed their behavior. They stopped granting copyright to MLSs who were submitting their databases on behalf of their members. They did not deny copyright. They just stopped granting it. They sent a letter to the National Association of REALTORS® indicating that they wanted to have a conversation about the applications. WAV Group participated on the work group. No further action has been taken. I believe that the NAR is working on it, but have not gotten an update. Katie?
If the copyright office is not happy with the process that the MLS is taking with bulk registration, brokers will need to handle copyright independently. Fortunately, Upstream was designed with this intention and brokers can quickly pivot to putting their listings in Upstream to secure the ownership before submitting to the MLS. Upstream was carefully developed to insure that all photos loaded into the system either transfer ownership to the broker or provide a perpetual license to the broker.
The Biggest Problem Is Not Being Discussed
Today’s Cleveland media company WOIO’s headline reads TAKE A LOOK INSIDE LeBRON JAMES’ $23 MILLION LOS ANGLES AREA MANSION. This type of click bait article will drive huge consumer interest. The source of the data for the article is Trulia – and there is no mention of the listing broker, the listing agent, or the professional photographer who probably owns the photos. Trulia is not at fault here. They have buttoned up their terms of use for advertisers and they are granted rights to use the media however they want, – in perpetuity. Moreover, the listing broker indemnifies Trulia for any consequences that may happen as a result of their use of the photos. If you have not reviewed the terms of use with listing syndication, you should do so. The portals do everything that they can to consume your photo rights. Here is a paper about it https://www.wavgroup.com/2011/04/05/listing-syndication-2-0/
But there is a bigger issue here. How do you think that the James family feels right now? They moved because their last home was vandalized with graffiti during the NBA playoffs. Now his young children’s bedrooms are front page news and click bait that will be pasted all over the internet for years. James could have his lawyers call is buyers’ agent and ask to have the photos removed. In doing so, he will learn the problem with photography in real estate. His buyer’s agent has no control over what the seller’s agent does with the photos. Those photos were taken by another company representing another person – the seller. The seller is under no obligation to remove photos when the home is transferred to a new party. The James family – and any other home buying family is in the same predicament. When our industry markets a home for sale, we do not think at all about the privacy of the homebuyer who will take possession of the home. If our industry really cares about home ownership, it will take on this issue.
The fix is easy. Create an industry policy that does not syndicate anything other than the exterior of sold or withdrawn properties. Agents can still access them inside the MLS and though VOW, but take interior photos out of the sold data feeds. As an industry, we should also insist that interior photos are removed from portals.
Let’s step up and do the right thing! Give homebuyers their privacy!
I guess the question I have is where is the MLS industry with regard to safeguarding the content they syndicate to the portals from the MLS database on behalf of the brokers? They have accepted that responsibility and yet it appears they have not assured that the ownership of the same content or use of the content is being monitored or is secure. Has no one examined the terms and conditions of these third-party syndication activities at the MLS? This is precisely why the case is being made by many that the MLS industry is not a safe environment for the broker’s data. The MLS is quick to copyright the aggregated database of all the listings, but is deferring the validation of core ownership of the data and the protection of that data to others? Sorry. Doesn’t make sense to me.
I do not think that this is solely an MLS thing. In my opinion, the MLSs have invested the most in signing careful agreements with Portals based upon the condition that the broker has authorized the syndication. Large brokers and franchises who directly syndicate also have carefully structured agreements.
I have negotiated a number of agreements with portals on behalf of brokers, MLSs, and Franchise organizations. The terms are pretty variable. They are confidential, so I cannot disclose them publicly. I think that Larson Skinner has published some interesting blog posts that digs pretty deeply into the terms.
To be clear on MLS copyright. That is done with the authority of the broker participant of the MLS. The broker licenses the data to the MLS under a restrictive license (MLS Purposes only). The broker maintains copyright on their contribution, but the MLS copyrights the compilation, organization, structure, etc. That allows the MLS to support all brokers against listing piracy (See Neighborcity case).
But I think that you missed the point of the article. How can we – as an industry focused on advocating for homeowners – set out a plan to give privacy back to homebuyers?
Great thoughts, Victor. My only thought is this, most listings are syndicated while they are in an “active” status. It is at that time the photos are sent. When properties change status, they photos are typically not resent. Therefore, once the portal has the photos…they have the photos. As a result, I think the problem goes beyond simply not sending photos for off-market properties, but rather building something into your syndication agreements requiring the portals to remove all but the exterior photo for off-market properties.
Precisely. As it relates to MLS syndication- there are many other issues. For example, most syndication agreements with portals are confidential and the broker has no clue what rights you agreed to. Does MLSPIN require portals to expunge everything but the primary exterior photo? Do you limit and restrict reuse or reayndication?
Victor – while I don’t believe we can share syndication agreements as you stated, ABoR utilizes a standardized set of requirements that our advisory board uses to aid in decision-making when approving syndication partners. They are titled “Third-Party Publisher Contractual Requirements” & list 12 “shall” & shall-not” phrases that advocate on the behalf of our brokers in how they want listing data to be displayed.
What you’re proposing would fit into such a document. However, I can’t speak on behalf of our advisory board as to whether or not that’s something they may be interested in. I think I would have more of a concern about portal compliance – or willingness to comply with such a requirement. Especially in the face of other operational hiccups that we notice when working with these syndication partners that we haven’t seen any improvements on.
I would love to discuss the Operational Hiccups that you mention as the foundation for a future post.