RCG contributors have been all over Inman News lately…
Today Russ is giving his opinion on two papers recently released by MRIS (Washington DC MLS) that have to do with the copyrights that agents have on listings.
The general thrust of the reports are that real estate agents should assert the copyright on their listings:
“Our intention with this discussion paper is to remind those that can lawfully assert copyright rights that they have legitimate recourse at their disposal if they feel their rights are violated,” the paper states.
Issues related to the copyright, control and ownership of property listings information have been debated for many years within the real estate industry, and there has been an increasing focus on these issues, the paper states, that has created “robust” and “at times contentious” discussions about the present state of the business and the future of the industry. Among new entrants to the industry are “alternative business models that propose to dramatically change the real estate industry,” as well as “new offerings from existing industry participants that may also impact the way the industry thinks about — and practices — real estate,” according to the paper.
Russ is not convinced that agents have all the rights that the paper asserts:
(Russ) said he “completely” disagrees with the perspective in the report that the listing price of a property is copyrightable, for example. “It’s the seller who typically comes up with (the listing price) and not the agent,” he said. “If it was copyrightable it would be copyrightable to the seller. In my opinion the argument does not have legal authority to back it. If challenged in court I believe that the court would find the listing price is a fact as opposed to a protectable element.” The listing price, as far as consumers are concerned, is definitely a very important aspect of property listings information, he said.
This is an interesting argument and at the root of the DOJ case against NAR that is currently working itself through the legal system.
This should be good bedtime reading tonight….
I hope they really didn’t say that they could copyright the list price….
how funny!
Very intersting proposal. Not sure if its feasible but it depends on how exclusive the listing was. I dont know if this will ever happen but its to think about.
NY Times magazine, had an interesting article this weekend on the similar dilemma the publishing industry finds itself in because of the growth of digital publishing. I thought the following quote was especially prescient…
“The courts may haggle forever as this complex issue works its way to the top. In the end, it won’t matter; technology will resolve this discontinuity first.”
Life is definitely interesting on the inside these days. Five of us from three companies got together a couple of weeks ago to resolve an issue where someone “pulled a Redfin”. It was amazing to see that all five of us pretty much had differing opinions.
Can’t wait for the article with Russ to come out. BTW to capture an Inman article for posterity before it goes behind the veil, just cut and paste it into a word document.
Life is definitely interesting on the inside these days. Five of us from three companies got together a couple of weeks ago to resolve an issue where someone “pulled a Redfin”. It was amazing to see that all five of us pretty much had differing opinions.
Can’t wait for the article with Russ to come out. BTW to capture an Inman article for posterity before it goes behind the veil, just cut and paste it into a word document.
It was mindly amusing to read from a law student’s perspective. It absolutely advocates the ability to assert a copyright in the price. While I’m not familiar with all the legal arguments and the case, it may be written and published as a type of amicus brief so that NAR is not the most extreme position in the DOJ lawsuit. I’ll have to look into the lawsuit issues a bit more … but I didn’t find the paper persuasive.
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Someone ought to just read the Copyright Act. Facts are not protected.
Then please get Danny Webster’s bestseller and look up the defintion of fact. Now go to a listing & see if you can pick out the facts (come on you can do it). They are free and anyone can use them w/o fear of a copyright lawsuit.
I found it amusing that the authors start off with facts being unprotected and then spend 40 pages figuring out how to get around this legal fact. A dead give away a lawyer was part of the writing team. Their advice in a nutshell–don’t call it data call it content & presto, instant ownership of entire listing, facts and all. Oh yeah a judge will buy that.
Tip to agents: If you’re an independent contractor, write the ad, take the photos, shoot the video & do not assign any of your copyrights because if you do, you no longer control how to advertise the property & you do your seller, as well as the code of ethics, a unpardonable disservice.
Someone ought to just read the Copyright Act. Facts are not protected.
Then please get Danny Webster’s bestseller and look up the defintion of fact. Now go to a listing & see if you can pick out the facts (come on you can do it). They are free and anyone can use them w/o fear of a copyright lawsuit.
I found it amusing that the authors start off with facts being unprotected and then spend 40 pages figuring out how to get around this legal fact. A dead give away a lawyer was part of the writing team. Their advice in a nutshell–don’t call it data call it content & presto, instant ownership of entire listing, facts and all. Oh yeah a judge will buy that.
Tip to agents: If you’re an independent contractor, write the ad, take the photos, shoot the video & do not assign any of your copyrights because if you do, you no longer control how to advertise the property & you do your seller, as well as the code of ethics, a unpardonable disservice.
3
“A dead give away a lawyer was part of the writing team”
Are you suggesting that this fact means the paper is inaccurate?
-Russ
3 replies tio russ
1. the lawyer reference had nothing to do with accuracy or inaccuracy of the paper. It had to do with spin & verbosity.
2.. To say that facts are unprotected but listings that contain them are protected requires the spin of a dervish, i.e. a lawyer
3. a 40 page loophole is lawyerishly (is that a word?) verbose
PS the basic conclusion of the paper is inaccurate in my opinion— there is no way to lock facts within a lisiting so no one can use them.
3 replies tio russ
1. the lawyer reference had nothing to do with accuracy or inaccuracy of the paper. It had to do with spin & verbosity.
2.. To say that facts are unprotected but listings that contain them are protected requires the spin of a dervish, i.e. a lawyer
3. a 40 page loophole is lawyerishly (is that a word?) verbose
PS the basic conclusion of the paper is inaccurate in my opinion— there is no way to lock facts within a lisiting so no one can use them.
Personally I think the whole thing will become fairly irrelevant once the DOJ realizes they are on the right track, but riding the wrong horse.
what track? what horse? please expound
A couple of horses the DOJ should be riding:
1) Why can’t a FSBO advertise in Homes and Land or Harmon Homes or The Real Estate Magazine?
2) Why do some companies not allow a buyer to negotiate the fee when they meet with an agent to sign a buyer agent agreement, the same way a seller negotiates the fee when they sign a listing agreement?
3) Why do some companies have a policy that the agents can’t negotiate the fee lower than x, when the company itself gains nothing from said policy in its profit base?
Controlling the data via copyright ,and the “opt out” provision, are miniscule components to the “big picture”.
The “right track” is giving buyer consumers the same power as seller consumers in contract and fee negotiation. The “right track” is opening all options available to consumers, both buyer and seller consumers, without restraint of trade.
Of the horses available to ride to that finish line, wherein the consumer has as many options in the real estate markets as they do in other markets, are many. Copyright and opt out provisions, are not necessarily the horses that will get the consumer over the finish line, to true, open market conditions.
Just my $.02 YMMV
A couple of horses the DOJ should be riding:
1) Why can’t a FSBO advertise in Homes and Land or Harmon Homes or The Real Estate Magazine?
2) Why do some companies not allow a buyer to negotiate the fee when they meet with an agent to sign a buyer agent agreement, the same way a seller negotiates the fee when they sign a listing agreement?
3) Why do some companies have a policy that the agents can’t negotiate the fee lower than x, when the company itself gains nothing from said policy in its profit base?
Controlling the data via copyright ,and the “opt out” provision, are miniscule components to the “big picture”.
The “right track” is giving buyer consumers the same power as seller consumers in contract and fee negotiation. The “right track” is opening all options available to consumers, both buyer and seller consumers, without restraint of trade.
Of the horses available to ride to that finish line, wherein the consumer has as many options in the real estate markets as they do in other markets, are many. Copyright and opt out provisions, are not necessarily the horses that will get the consumer over the finish line, to true, open market conditions.
Just my $.02 YMMV
Thanks Ardell. I like your analogy. Let me try one:
The horse sellers want to ride:
“Widespread Dissemination” , i.e. advertisie my listing all over the place, let it be spread throughout the internet, do not restrict the listing & do not let anyone tell my broker where he or she can advertise my property. I have to sell darn it! (MLS keep your rope off my horse)
The right tracks:
More than just on the MLS & broker site–i.e running free in print & other internet sites so that my horse can be seen by as many buyers as possible. Run housie run!
Only fair payout for a winner: Commission to the listing broker. So long as this payout occurs, no one should have any objections that this occurred because someone else used (spidered) the listing facts & disseminated them to the consumer w/o asking or getting a cut of the commish pie.
Problem caused by controlling listing facts & allowing joint ownership w/ MLS by copyright (the worst way to corral the listing horse) is that it puts mud on the tracks and cripples the horse.
Thanks Ardell. I like your analogy. Let me try one:
The horse sellers want to ride:
“Widespread Dissemination” , i.e. advertisie my listing all over the place, let it be spread throughout the internet, do not restrict the listing & do not let anyone tell my broker where he or she can advertise my property. I have to sell darn it! (MLS keep your rope off my horse)
The right tracks:
More than just on the MLS & broker site–i.e running free in print & other internet sites so that my horse can be seen by as many buyers as possible. Run housie run!
Only fair payout for a winner: Commission to the listing broker. So long as this payout occurs, no one should have any objections that this occurred because someone else used (spidered) the listing facts & disseminated them to the consumer w/o asking or getting a cut of the commish pie.
Problem caused by controlling listing facts & allowing joint ownership w/ MLS by copyright (the worst way to corral the listing horse) is that it puts mud on the tracks and cripples the horse.
They don’t want to cripple the horse, or the house, or the seller…just the bottom feeder sites. The way to do that is to give THE BUYER the incentive, not KEEP it. That’s my experiment…working so far.
Why would a buyer want to shoot himself in the foot by going to a lead generation site, if there is incentive for him to go to a Broker Direct site. Compete fairly by giving the buyer a reason to choose you, not with rules to block fair trade.
They don’t want to cripple the horse, or the house, or the seller…just the bottom feeder sites. The way to do that is to give THE BUYER the incentive, not KEEP it. That’s my experiment…working so far.
Why would a buyer want to shoot himself in the foot by going to a lead generation site, if there is incentive for him to go to a Broker Direct site. Compete fairly by giving the buyer a reason to choose you, not with rules to block fair trade.
do you disagree with me as far as the seller is concerned?
Is the bottomfeeder site taking commission money away from the listing broker or inhibiting the sale?
If not, no harm, no foul.
If so, sue for God’s sake and let’s get this thing decided. Just complaining about bottomfeeders is a waste of time.
BTW, buyers do not care a whit who points them to the house–so long as they see ALL the houses—this means widest dissemination of listing facts. Control of listing facts hurts buyers. It requires them to become a lead to see the listing.. Using listings to get leads—hmm, I dont recall that as part of fiduciary duty to seller or code of ethics.
Bottom line–if house gets sold and listing broker gets his/her commission, there is nothing to complain about.
do you disagree with me as far as the seller is concerned?
Is the bottomfeeder site taking commission money away from the listing broker or inhibiting the sale?
If not, no harm, no foul.
If so, sue for God’s sake and let’s get this thing decided. Just complaining about bottomfeeders is a waste of time.
BTW, buyers do not care a whit who points them to the house–so long as they see ALL the houses—this means widest dissemination of listing facts. Control of listing facts hurts buyers. It requires them to become a lead to see the listing.. Using listings to get leads—hmm, I dont recall that as part of fiduciary duty to seller or code of ethics.
Bottom line–if house gets sold and listing broker gets his/her commission, there is nothing to complain about.
I would never disagree with you 3 cents 🙂 Bottom line is I’m talking about the buyer and you are talking about the seller.
For the most part bottom feeder sites affect buyers and not sellers. But in either case, if the agent is willing to give x dollars to the bottom feeder then the agent would be willing to reduce the fee to the consumer, buyer or seller consumer, by the same x dollars. I think consumers would rather have it, or at least KNOW about the exchange of monies. The seller is paying it, the buyer is financing it, so how come they don’t know about it? Doesn’t show anywhere, not traceable.
The only HARM and FOUL is that the bottom feeder does not DISCLOSE this monetary exchange in any way to the consumer, nor does the agent.
Lack of disclosure is never the right way to go. The consumer should have the choice of how they spend their money. In real estate all of these dollars come from the consumer, somehow, by the end of the day.
I would never disagree with you 3 cents 🙂 Bottom line is I’m talking about the buyer and you are talking about the seller.
For the most part bottom feeder sites affect buyers and not sellers. But in either case, if the agent is willing to give x dollars to the bottom feeder then the agent would be willing to reduce the fee to the consumer, buyer or seller consumer, by the same x dollars. I think consumers would rather have it, or at least KNOW about the exchange of monies. The seller is paying it, the buyer is financing it, so how come they don’t know about it? Doesn’t show anywhere, not traceable.
The only HARM and FOUL is that the bottom feeder does not DISCLOSE this monetary exchange in any way to the consumer, nor does the agent.
Lack of disclosure is never the right way to go. The consumer should have the choice of how they spend their money. In real estate all of these dollars come from the consumer, somehow, by the end of the day.
Ardell,
You wrote:
“A couple of horses the DOJ should be riding:
1) Why can’t a FSBO advertise in Homes and Land or Harmon Homes or The Real Estate Magazine?
2) Why do some companies not allow a buyer to negotiate the fee when they meet with an agent to sign a buyer agent agreement, the same way a seller negotiates the fee when they sign a listing agreement?
3) Why do some companies have a policy that the agents can’t negotiate the fee lower than x, when the company itself gains nothing from said policy in its profit base?”
Anti-trust violations generally include concerted action and/or market power. As to all three of your examples, you are dealing with independent companies who are making indepedent business decisions. Further, of the ones you mentioned, none individually are going to have the type of market power where independent action will “unreasonably” (key word) restrain trade.
There is a big difference when business action is taken by an MLS which is operated by a local industry trade association which is governed by a national trade association who determines the policies that the MLS will be run under.
So the DOJ really can’t ride the horses you mentioned.
-Russ
Ardell,
You wrote:
“A couple of horses the DOJ should be riding:
1) Why can’t a FSBO advertise in Homes and Land or Harmon Homes or The Real Estate Magazine?
2) Why do some companies not allow a buyer to negotiate the fee when they meet with an agent to sign a buyer agent agreement, the same way a seller negotiates the fee when they sign a listing agreement?
3) Why do some companies have a policy that the agents can’t negotiate the fee lower than x, when the company itself gains nothing from said policy in its profit base?”
Anti-trust violations generally include concerted action and/or market power. As to all three of your examples, you are dealing with independent companies who are making indepedent business decisions. Further, of the ones you mentioned, none individually are going to have the type of market power where independent action will “unreasonably” (key word) restrain trade.
There is a big difference when business action is taken by an MLS which is operated by a local industry trade association which is governed by a national trade association who determines the policies that the MLS will be run under.
So the DOJ really can’t ride the horses you mentioned.
-Russ
Well then Russ, let’s move those horses to the “There Oughta Be A Law” category 🙂
Giddyup Russ! 🙂
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