COURT SAYS MLS IS A FORUM FOR REAL ESTATE PROFESSIONALS

By
Real Estate Agent with Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate 303829;0225082372

MUST READ - MLS IS for BROKERS TO SHARE INFORMATION - IT IS NOT PUBLIC INFORMATION


[Decision]

Filed in the U.S. Court of Appeals, Florida
June 21, 2007

Appeals from the United States District Court
for the Southern District of Florida

BUC Int�l Corp. v. Int�l Yacht Council Ltd.
 
"The vessel listings in the BUCNET database were not available to the public;
only BUCNET licensees had access to these compilations. BUCNET was thus
a broker-to-broker multiple listing service6 (�MLS�), as opposed to a primarily
retail-based website available to the public at large."

~~~~~~~~~~~~~~~~~Footnotes to the Decision~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

5 In pertinent part, the �BUC Marine Sales and Charter Management System
Membership and Software License Agreement� provides that:
Licensee shall not use, sell, distribute, display, or otherwise transfer, any
information obtained from the BUC Licensed System to others for any purpose
provided however, that Licensee may provide printed listings of vessels for sale or
charter to prospective boat buyers, sellers, or charterers on an individual basis and
in such limited and reasonable quantities for their consideration. No right or
license is granted herein for the use of the BUC Licensed System, databases,
reports, listings or any other item delivered by BUC to Licensee hereunder, for
any third person, or for any use by any third person of the BUC Licensed System.

6 A multiple listing service, or MLS, applies within a specific market, such as the market
for real estate or for the buying and selling of yachts, and provides professionals with a
forum to submit and browse information about properties for sale in that market.

===================================================================

Court decisions upheld by the U.S. Court of Appeals have significant importance as
"precedent".  Unless reversed by the U.S. Supreme Court, this case could be the
model upon which MLSs throughout the country defy attempts by various consumers
groups, non-MLS members to use MLS information on their web sites for commercial
gain. 

The question in my mind is "where do the web sites using MLS information as bait to
get the public to view their web sites, get that information".  If they obtain the information
from one of the various MLSs and use the listing information on their web sites, it would
appear that they are have violated the copyright of the MLS from which they obtained the
MLS data. 

The act of obtaining a real estate license and joining an MLS for access to the information
is not the same as joining an MLS to use listing information intended for "broker to broker"
use. 

What does that say about the various directories and lead generating web sites that
use information from local MLSs to attract home buyers and sellers to that web site??  The
web site may be selling agent/broker directory listings, selling banner ads from real estate
related vendors; mortgage companies, moving companies, furniture companies, etc. 

The home buying and selling consumer is the target of the web site and the
MLS information is the bait. 

Realtor.com is licensed by the NAR to do what they do.  What about the many other
companies that use MLS information as bait?

==============================================================

UPDATE:  SINCE PUBLISHING THIS POST, some of the comments relate to IDX data feeds.  I don't believe that this court decision would affect IDX subscriptions at all.  IDX feeds are purchased by MLS members and used according to the license agreements between the MLSs and the subscribers.  It could affect new entities who try to use the VOW platform which makes the MLS available to folks who sign in. 

The entities that I believe COULD be affected by this decision, assuming anyone cares, are competing MLSs, large brokers who wish to operate their own MLS (we've been hearing rumors about them for a year or more), web site owners who join the MLS to gain access to the MLSs and then use the MLS information on their web sites.  I'm of the opinion that even brokers who post information ABOUT OTHER BROKERS' listings on their web sites, even though they are members, unless they have permission from every other broker, are violating the MLS copyright by publishing that information. 

This is very complidated and may be above my pay grade, but I see implications of this case in the future. 

 

 

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Comments 34 New Comment

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Ambassador
2,342,163
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

I pay MLS dues to access info, Sandy does as well, about $250 per month for us, about the same for E&O insurance, NAR and local dues, plus much, much more to be a REALTOR.  Consumers pay nothing!  Either we pay nothing or start charging the consumer.......boy that will work! (NOT)
Dick and Sandy.  There is some talk about a National MLS that consumers would pay to belong.  Like you say, FAT CHANCE.

Lenn,  much of that is way above what I really understand.  I heard that Lending Tree is going to roll out a software where people can get text messages and emails to their phone to inquire about listings.  The one they are interested in and others directly surrounding it.  I see what you mean..I also see how this could go pretty deep and affect many different companies and websites, like the one I just mentioned.  I do not know how some of these guys get their information but it will be interesting to see what happens in the future.
A small victory in the courts?  What a tangled web we weave.  Gotta love the court systems.
Stephanie.  This stuff is above what almost anyone understands.  But, copyright is an ongoing interest of mine so I read a lot of it.  How these guys get their information is no secret, they join the MLS and get the data feeds. 

   I believe this all stems from the notion that if something(data,photos,etc.) is on the web...then it "must be free"....But wait, you mean if I use what I believe to be free for my own personnel gain I am entitled.Sorry, that you as an agent or owner/broker had to pay for this; sign contracts and conduct yourself in a business and professional manner.  After all "It's on the web----it's free".  Very nice, Lenn...Only in America would we allow this to happen.
Kim.  You are absolutely right.  Even a former President of the United States from the State of Georgia said, after stealing content and maps from another author, "I found it on the Internet".

Thanks Lenn, can't wait to see how this plays out for the rest of the country.
Kathy.  Neither can I.

What a interesting case and I must say I agree with the comments on this matter. MLS is for the use of the agents to provide the service for the buyers and to provide marketing for the sellers. I hope this will be resolved soon but as stated it is sure to go on for a while and there will always be something.
Maureen.  Thanks for commenting.  I suspect that we'll hear more.

August 22, 2007 11:03 AM
Rainmaker
174,490
Ki Gray
Austin Real Estate
I don't know why it was ever the case that MLS's would be considered public domain considering its a private enterprise paid for with private money.
August 22, 2007 11:14 AM
Rainmaker
111,471
Chris Lengquist
Keller Williams Realty

It's really hard to know where this will all lead.  Depends on the lawyers and judges.  I will say however, that all businesses evolve.  I will evolve with it, regardless.  I am watching it carefully, however.

Thanks for the update. 

August 22, 2007 11:17 AM
Rainmaker
654,045
Jim & Maria Hart
Charleston, SC Real Estate
Brand Name Real Estate
I just think that this is a great victory for all of us who rightfully use the MLS every day.  It is a private site that we all pay to be a part of, so I am thankful that the courts have also seen it in this light.  Thank you for posting this, Lenn.
August 22, 2007 11:50 AM
Ambassador
1,028,438
Celeste "SALLY" Cheeseman
RA, CRS, Hawaii Mililani Oahu Real Estate
Century 21 Liberty Homes

"The home buying and selling consumer is the target of the web site and the
MLS information is the bait"

This may be way over my head as well although the statement above is one thing that caught my eye (maybe because you put it in bold lol!) You know Lenn, this whole thing with lead gen. co's and these websites that are literally "buying our mls listings" by buying into our real estate industry by obtaining a license are just another example of why the consumer is "thinking" we are are a shady bunch.

And expounding on the copyright infringment law.  Yup. Give me more and keep us informed please.

August 22, 2007 11:52 AM
Ambassador
2,342,163
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

Ki.  There are so called "consumer groups" that believe that the MLS should be public domain.  Don't ask me who will fund it.  This case, while not exactly on point, does impinge on that view and favorably.

Chris.  Hard to say is right.  The Internet really let a lot of sqirmming cats out of the bag.  Generally, not to the benefit of all Realtors.

Jim and Miria.  It is a victory.  How it will help is the question.

August 22, 2007 11:54 AM
Rainmaker
161,146
Mary Pope-Handy
CRS, CIPS, ABR, SRES, Silicon Valley
Sereno Group Real Estate
Lenn thanks. This is one topic that is key to all of our futures in real estate.
August 22, 2007 11:55 AM
Rainmaker
1,390,264
Maureen McCabe
Columbus Ohio Real Estate
HER Realtors

This is a fascinating subject and confusing.  I don't think I understood the difference between the MLS and the IDX feed until a couple of years ago.  I think we each need to know OUR own MLS rules and who owns the data, I think that must vary by market.  

Where did I read about a board in Indiana (?) changed the name of their MLS to something else? Maybe Inman News?   Maybe it was Broker Listing Cooperative?  Something like that. 

August 22, 2007 01:00 PM
Ambassador
895,064
Missy Caulk
Realtor - Ann Arbor Real Estate
Missy Caulk TEAM

Lenn, this is probably the most interesting thread I have been on for awhile. In response to your comment about us enforcing it, the answer is yes we do. I am on the Board of Directors now for 6 years, and MLS Committee, we discussed this in great length and came up with a policy.

 One of the monthy newspapers were wanting our data feed and we were NOT going to sell it to them IF they tried to use it to sell our listings leads back to us. UNTIL we changed the policy, we sold it to the agents at 500.00 a one time fee. And outside companies for 1000.00. However, the APPLICATIONS are screened, not everyone who asks gets one. And it is renewable not for life.

We changed it to 0 for Ann Arbor Realtors and 1500.00 for outside companies. I have not heard of any problems and am involved in the board and MLS so I would have heard of it.

Ditto to what Broker Bryant said, they only get the active listings, not all the data. Then our webmasters can format it anyway they desire showing only the features we want them to.  

August 22, 2007 01:03 PM
Rainer
70,844
Thomas Weiss
Thomas R. Weiss

Lenn,

I'm not fully aware of everything involving what Realtors deal with, but from what I read in your post, you are passing on good info to those willing to read it..

Tom Weiss

August 22, 2007 02:00 PM
Rainmaker
137,001
Vicki Lloyd
(949)457-0281, Lake Forest and South Orange County, CA
The Real Estate Professionals

This is really good info Lenn!  I am very concerned about the outsiders who are demanding access to our MLS, and the tendancy to give "the public" everything they want - at no cost to them.  The agents provide the listings, photos, descriptions and the dues that pay for the MLS staff to run all the computers.  There is definitely a cost that I am paying and I don't want to share my resources with aggregators who want to get between me and my clients!

Vicki

August 22, 2007 07:38 PM
Rainer
1,908
Alissa Murray Gomez
Re/Max Realty Associates

At first I thought this was great news, but now I am not sure I understand fully all of the implications it can have on how it changes how we do business. 

I think that the perception that the MLS should be free to all shows the perception of the general public regarding real estate agents. I don't see any other business model where people are not expected to be charged for their services like we are.

 

 

August 22, 2007 11:25 PM
Rainmaker
136,149
Kaye Thomas
e-PRO, Manhattan Beach CA
Real Estate West
I agree with you Lenn.. also above my pay level but I do believe there may be some major implications as many MLS associations merge and agents finally  realize this is not a good thing.
August 22, 2007 11:43 PM
Ambassador
883,319
Margaret Woda
Maryland Real Estate & Military Relocation
Long & Foster Real Estate, Inc., Crofton, MD 21114
Where on earth do you find this stuff, Lenn?  Great information!  Thank you.
August 23, 2007 10:53 PM
Ambassador
2,342,163
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

One of the monthy newspapers were wanting our data feed and we were NOT going to sell it to them IF they tried to use it to sell our listings leads back to us. UNTIL we changed the policy, we sold it to the agents at 500.00 a one time fee. And outside companies for 1000.00. However, the APPLICATIONS are screened, not everyone who asks gets one. And it is renewable not for life.

We changed it to 0 for Ann Arbor Realtors and 1500.00 for outside companies. I have not heard of any problems and am involved in the board and MLS so I would have heard of it.
 
Missy.  Thanks for commenting.  I have a question for you.  If the "outside" companies are not using the listing information to sell leads back to REALTORS, what are they using it for.  I would be less suspicious if they had ABSOLUTELY NO WAY OF CAPTURING LEADS.  Has that been verified????

Or, can perhaps agents that subscribe to something capture or buy leads???

Anyway you look at it, it's a good deal for the newspapers.  For $1,000 they get advertising bait worth about $1,000 a day.It is the listings that are the bait for IDX sites.  It's the listings that bring consumers back to brokers sites.  It's the listings.  It's the listings. 

Any time listings are used as advertising bait on any web site other than a working brokerage, we all lose. 

August 24, 2007 06:25 AM
Ambassador
2,342,163
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

This is really good info Lenn!  I am very concerned about the outsiders who are demanding access to our MLS, and the tendancy to give "the public" everything they want - at no cost to them.  The agents provide the listings, photos, descriptions and the dues that pay for the MLS staff to run all the computers.  There is definitely a cost that I am paying and I don't want to share my resources with aggregators who want to get between me and my clients!

Vicki.  Folks that want listing information for free appear to believe that we agents work for free to get the listings in the MLS.  WAIT. . . WE DO!!!


At first I thought this was great news, but now I am not sure I understand fully all of the implications it can have on how it changes how we do business.
I think that the perception that the MLS should be free to all shows the perception of the general public regarding real estate agents. I don't see any other business model where people are not expected to be charged for their services like we are.
Alissa.  I don't either.  The fact that every newspaper, every FSBO site, every lead machine, every house value site, every one who wants traffic to their web page
to sell something, wants home listings surely should tell us something about the value of the MLS and IDX links. 

I agree with you Lenn.. also above my pay level but I do believe there may be some major implications as many MLS associations merge and agents finally  realize this is not a good thing.
Kaye.  You are right.  Some times when a thing doesn't sound right, means that it isn't.

Where on earth do you find this stuff, Lenn?  Great information!  Thank you.
Margaret.  Thanks for commenting.  I follow copyright stuff.
August 24, 2007 07:41 AM
Rainmaker
79,746
Meg Zoller
Houston Fine Homes
Keller Williams

Lenn - Do you have any updated information on this?  I am interested in hearing more on this subject. Again, I greatly appreciate your time.

Happy New Year!

January 02, 2008 02:09 AM
Ambassador
2,342,163
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

Meg.  No, nothing further.  I'm sure some research time on the Internet would produce more info.  I was hoping that readers would read it and understand that the matter of the public access to the MLS isn't as cut and dry as the DOJ wants to make it appear. 

I guess I was hoping that the NAR attorneys would find it too.

 

January 02, 2008 06:35 AM
Rainmaker
1,248,654
Carla Muss-Jacobs, Principal Broker/Owner
Buyer Focused ~ Buyer Results
BuyersAgentPortland.com | (503) 810-7192 Portland Metro Exclusive Buyers Agent | 100% Buyer Representation ~ 100% of the Time

What a visionary you are. 

 

 

October 06, 2011 02:42 PM
Ambassador
2,342,163
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

Carla.  Thanks.  Nice chatting with you this evening.

 

October 06, 2011 08:16 PM
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Lenn Harley

Real Estate Broker - Virginia & Maryland
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