The Elusive Quest to Control Data Online: Listing Display, Syndication & Other Conundrums May, 2014 Presenter: Elizabeth Miller-Bougdanos, C.A.R. Senior

The Elusive Quest to Control Data Online:

Listing Display, Syndication & Other Conundrums

May, 2014

Presenter:

Elizabeth Miller-Bougdanos, C.A.R. Senior Counsel


• Fact: Listings are online all over the place.• Love it. Hate it. But mostly - understand it!

• Key Foundational Questions:– Who is displaying them?– How did they get there?– How can you better control your data?– What’s going on at the MLS level?


Who is displaying and how did it get there?

1st Party Display• Listings displayed online by MLS participants via

IDX (Internet Data Exchange) • Participants receive IDX feed from MLS. • Permission to advertise granted (built into MLS

rules) to one’s fellow MLS participants for electronic display on sites they “control”

• Subject to IDX display rules


1st Party Display• IDX “Control” - actual and apparent

– “Actual control” -- the ability to add, delete, modify and update information as required by this policy. • requires that the participant has developed the display, or

caused the display to be developed pursuant to an agreement where the participant has the authority to determine what and how listings will be displayed.

– “Apparent control” -- presented to the public as being the participant’s display. • requires that a reasonable consumer will understand the

display belongs to and is controlled by the participant. • Ex: franchisor site=yes; Craig’s List=no; facebook=?


1st Party Display• IDX Display Rules

– Attribution of listing firm and agent name – Update every 3 days; post date of the most recent

update– Indicate MLS as source– Data accuracy disclaimers– Make sites accessible to MLS and MLS participants

and subscribers for monitoring purposes– Must indicate the information being provided is for

consumers’ personal, non-commercial use


1st Party Display• IDX Display Rules

– No use for any purpose other than to identify prospective properties for consumers

– No display of any confidential information fields– No modification of the information displayed – No sharing of the MLS compilation with any third

parties not authorized by the MLS– No partaking in IDX by one who elects a blanket opt

out


1st Party Display

Poll Q #1: How important to your business is the ability to display IDX listings on your website?

• A. Very important• B. Somewhat important• C. Not important


Who is displaying and how did it get there?

3rd Party Display• 3rd party (i.e. non-licensee/MLS participant) real

estate data aggregation sites, ex: Z/T/R.• Listings travel there through “syndication”

– Syndication is the process of supplying content for integration with other materials a 3rd party publisher or other outlet disseminates across the Web.


3rd Party Display• Who syndicates and how?

– Brokers/Agents through their MLS via tools like ListHub or Point2

– Brokers go direct to 3rd party– Agents go direct to 3rd party– Sellers go direct to 3rd party


3rd Party Display

Poll Q #2: If you syndicate your listings to 3rd party portals, how do you send them there?• A. Via tools like ListHub or Point2 through my

MLS• B. Via tools like ListHub or Point2 but NOT

offered or utilized through my MLS• C. Through a direct arrangement with the 3rd

party portal


3rd Party Display• Multiple entry points, strategies and players• Result = duplication or outdated/inaccurate

information which differs from that on the MLS. – Data either leaves the MLS or was never vetted

through it in the first place.– Data is disconnected and outside the MLS’s control

• no real time MLS “automated” process for correcting, revising or updating the listing on the various sites.

• Must “manually” update it or wait for the 3rd party site to do so (assuming some kind of a data reconciliation process exists)


3rd Party Display• Again - data is disconnected and outside the

MLS’s control:– No direct MLS contractual relationship with most 3rd

party sites where the listing will be displayed (exception – R.com)

– Result = Review & Understand your syndication elections!• Know if your settings default to an opt-in or opt-out option• Know and approve of the 3rd party sites designated. (Avoid

the unpleasant surprise of discovering you have been automatically designating “all” sites on a syndication panel.)


3rd Party Display• TOUs & EULAs = what you are authorizing.

– The very expansive terms of use (“TOUs”) and end-user license agreements (“EULAs”) of the prominent 3rd party sites compel those submitting data to grant them “forever” rights to unlimited use, redistribution, copying, royalty-free, repurposing of data, creation of derivative works, etc.

– Once brokers or agents have syndicated their listings to 3rd party aggregators, they have agreed to relinquish control of their listings.


How to Better Control Listing Data• To crawl it back…or not? Pros and Cons• Design unified syndication policy

• Have everyone in office syndicate the same way through the same “pipelines.”

• Avoid haphazard duplication• Be judicious in which sites you select

• Work with your MLS to Implement• Match decisions with settings, etc.• MLS syndication pipeline more likely to provide

better controls, data integrity & reconciliation


How to Better Control Listing Data

Poll Q #3: Which Internet marketing presence is most effective for you at capturing quality leads?• A. My brokerage firm’s IDX site• B. My agent IDX site• C. 3rd party portals• D. My MLS’s public facing site


MLS and Copyright Protection• Listing data can also make its way online in

unauthorized manners:• A wayward vendor could repurposes an MLS data feed

without authorization from an MLS. • An MLS participant could be using MLS data in

unsanctioned ways or funneling the data to unauthorized 3rd parties.

• An Internet portal could be employing scraping technology to populate its website.

• Users look to their MLS to protect against unauthorized use.


MLS and Copyright Protection• For an original work to be copyrightable, it must

contain a “spark” of creativity.• In terms of listing data, the “spark” of creativity

which is potentially copyrightable is generally going to be the portion consisting of photos and remarks (but not the rote factual information such as the address, number of bedrooms, etc.).

• To enforce a copyright, one must be the owner or exclusive licensee of a copyrighted work.


• MLS and Copyright Protection• Normally, MLS submission grants the MLS a

license to include the listing data in the MLS compilation but does not transfer actual copyright ownership.

• NAR policy prohibits requiring the transfer of copyright ownership as a condition of submitting the listing to the MLS.

• While MLS is the owner and creator of the MLS “compilation,” they are looking for ways to improve legal posture for it to be the copyright enforcer in a broader array of unauthorized use cases.


• MLS and Copyright Protection• Result: Some MLSs might ask participants and

subscribers whether they wish to transfer copyright ownership to the MLS – with the MLS in turn granting participants and subscribers back a very broad license to use, display, reproduce, sublicense, prepare derivative works, etc.

• Ownership of the copyright with the right to register it with the U.S. Copyright Office and sue on it would rest with the MLS.

• All other uses of it licensed back to the broker.• Purely voluntary decision by broker.


Wrap Up:• Several measures out there looking to improve

copyright protection for listing data used without authorization.

• Several measures you can take to assert better control of the data used with authorization.


Think before you click...

Thank you!

Elizabeth Miller-Bougdanos, C.A.R. Senior Counsel

Documents

The Elusive Quest to Control Data Online: Listing Display, Syndication & Other Conundrums May, 2014 Presenter: Elizabeth Miller-Bougdanos, C.A.R. Senior