I read a funny story over the weekend that embarrassed a rather “less than upstanding” member of the legal community representing newspapers in copyright infringement cases. I will recap that story in a minute, but it did make me think about a few rather important comments made by Brian Larson of Larson/Sobodka at recent conferences. I cannot paraphrase Larson effectively, but summarize that he believes that MLSs should take the issue of Copyright infringement very seriously. (Larson and other legal colleagues are sure to be discussing this at the Legal Symposium as part of the upcoming CMLS Conference).
MLSs need to take copyright infringement more seriously. “Today’s infringement response is typically a cease and desist letter,” says Larson. Which is effective, but not necessarily punitive. Although few MLSs have explicit custodial duty, many brokers expect vigorous pursuit of copyright violators. Perhaps it is time for MLSs to take a self assessment review of how they are actively protecting their data.
The funny article made me think of a possible solution for MLSs, which Larson suggests is an absurd idea (and I agree). Assign listing copyright to a third party or law firm who will pursue justice and damages from companies stealing data. This is what the attorney did to build a business of protecting Newspaper content. The newspaper extended copyright to the NewCo in exchange for revenue sharing with the proceeds from the court settlements. In this case, the strategy went horribly wrong for the newspapers and their new company with its attorneys. Here is the story
Some law firm called Righthaven came up with the idea that they could offer service to newspapers to file copyright lawsuits against individuals and companies who cut and paste newspaper articles in violation of copyright laws. The court ruled that the law firm or their client must first file for copyright protection before bringing the suit. Since Righthaven did not have standing to enforce the copyright, they lost the case. The court then required the Righthaven to pay $30,000 to the defendant. (me laughing)….Righthaven petitioned the court for relief, indicating that they do not have the money to pay (now I am laughing harder). Like everyone, I love stories of lawyers get spanked by the court for stupidity. Read the press story here.
Nevertheless, the idea of hiring a law firm to protect copyright is valid. The music protected their copyright vigorously and they shut down Napster and others who were publishing music to the internet without permission. They also created huge new industry in the process by partnering with the iTunes Store and other outlets that sell online music legitimately. It is feasible that organized real estate could do the same.
I know that our industry is looking seriously to protect data though different listing syndication options. These new options may even work to curb misbehavior by legitimate businesses. But what are we doing as an industry to prevent scraping and other copyright abuse? Anything beyond a cease and desist letter? Is the mere threat of litigation enough to shut them down?
If we are not doing anything, than some of my broker friends are correct. The MLS needs to do more to protect data, hunt down copyright abusers, and pursue damages. Here are a few ideas to get you started on a data protection plan.
1. Require any data recipient to have anti-scraping technology in place whenever listings are displayed.
2. Require any data recipient to agree in the data contract to pay a minimum amount of money if there is a data breach (like $50k or more)
3. Require any data recipient to have a high level of data security on their servers.
Here are a few industry firms that may help MLSs:
John Rees – Callister Nebeker & McCullough
Christopher Osborn – Foster Pepper
Darity Wesley – Privacy Solutions
Bradley Bjelke – Jackson, DeMarco Tidus,Peckenpaugh
