[photopress:images.jpg,full,alignright] The big news today, according to Inman, is that the Judge has ruled against the National Association of Realtor’s motion to dismiss the suit against them by the Department of Justice.

I don’t think this is a surprise. In fact, had the Judge ruled otherwise, it would have been a great disappointment. A lot of time and money has already been spent by both sides, and much more money will be spent before all is said and done. Had the motion been dismissed, all of those public funds spent, would have been for naught. And that can’t be a good thing.

My only concern about the whole thing, is that the DOJ doesn’t know enough about what they don’t know, to achieve the best results for the public at large. Lots of fishing expeditions, but what will they achieve, when all is said and done. It clearly would be best for all concerned if NAR would just “get real”. But that is not likely to happen. So the chips will fall where they may, in the end. My worst fear is that it will end up like the AT&T breakup. My worst fear will likely be the end result, the way things are going so far.

Here’s a question only the Governor can answer

[photopress:gregoirepicture2.jpg,thumb,alignright] Why does the law say “a licensee who works with a BUYER represents that BUYER unless…”

Aren’t SELLER constituents deemed worthy of “equal protections under the law”? Why doesn’t the law say “consumer” generically, so that unrepresented sellers have the same protections, and not just a consumer when a BUYER? Why doesn’t it cover a little old lady owner when a licensee knocks on the door trying to buy the place, for less than fair market value? Why isn’t she represented at first contact?

Here’s a little FSBO trivia. Did you know that agents who bring For Sale By Owners a contract on an mls form, when representing a buyer, are breaching mls rules? Did you know that there is no place in that contract for an agent NOT to represent a seller in some capacity? Only two options: Agent represents the seller or agent represents both the buyer and the seller (dual agent). There is NO place in the contract for the seller to be NOT reperesented as in No For Sale By Owners allowed. A completely different contract must be drafted by an attorney if an agent wants to write an offer on a For Sale By Owner.

Lots of things need to be changed that are leftover loose ends from the days when every agent represented sellers. I’m hoping all of these new business models are going to force all of the trains that are off the track to finally get so derailed that someone has to fix them. Train 1. State Laws of Agency Train 2. MLS Rules Train 3. NAR and Code of Ethics They all need to fit tomorrow’s reality for the new business models to function properly. Tomorrow’s reality is happening as we speak, as these new business models come up and as For Sale By Owner companies spring up. Someone needs to “get on the stick” pretty fast to catch up, because “the times they are achangin'”.

The Law of Real Estate Agency needs to clearly define all of these new business models, so that the consumers, including the For Sale By Owners, are aware of when they are NOT represented, and when they are being offered “limited reperesentation” and what that means to them. That is part of the DOJ “stuff”, at least with regard to Exclusive Buyer Agency. Hopefully with regard to For Sale By Owner companies as well, though I haven’t read anything yet to suggest that is the case.

Where’s that “Food for Fodder” tag? Lots to chew on today.

Day One – Realtor Mid-Year

I just attended my first meeting at the NAR Mid-Year. It was the MLS Association Executives Committee Meeting. There were three presenters to the group and I will provide some highlights of their presentations.

Laurie Janik, NAR General Counsel

Laurie indicated that claims against MLS under the NAR EO Insurance Policy have for the first time surpassed the number of general association claims. Out of 32 claims made this year, 18 involve MLS issues. Of the 18, 8 involve the FTC, 7 the DOJ and one involves a state attorney general. Most of the claims revolve around whether an MLS can exclude Exclusive Agency listings from data feeds to third party websites (e.g. Since Exclusive Agency listing allow the seller to sell the house themselves, MLSs argue that allowing these listings to be displayed on the Internet basically enables the seller to have free advertising to attract a buyer without paying the listing side of the commission.

Laurie also discussed the DOJ lawsuit. NAR filed a motion to dismiss which raised three arguments:

First, that the DOJ is seeking injunctive relief for the VOW policy that has been rescinded and never implemented and as a result, there is no relief that can be granted under this claim.

Second, that the VOW Opt Out provision is neutral on its face, there is a presumption of cooperation and that decisions to Opt-Out are based on independent action of each broker.

Third, that the DOJ’s claim against the current Internet Listings Display Policy does not allege any anti-competitive effect.

Laurie cautioned that Motions to Dismiss are rarely granted in the 7th Circuit (where the suit is pending). She also said that 14 MLSs have been involved in DOJ subpoenas and that the NAR insurance coverage for this claim is gone so the MLSs that are involved are now spending their own money to respond to the subpoenas.

Lastly, she indicated that there was a productive settlement conference. She believes a key issue in the case will revolve around the MLS definition of “Participant

Russ on Listing Copyrights

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.

DOJ, Copyright and Real Estate Listings

I just noticed an interesting article published in the Inman News by RCG contributor, Russ Cofano, that provides an interesting perspective on the extent to which a listing broker can copyright a listing (requires a subscription after today).

In a recent news publication, attorney J.T. Westermeier, partner in the firm of DLA Piper Rudnick Gray Cary US LLP, said that copyright owners of property listings content are not subject to compulsory licensing and that brokers can refuse to allow their listings to be displayed publicly by third parties even if the third parties are competing brokers. In Westermeier’s view, NAR’s online listings display policy being challenged by the DOJ is consistent with the broker’s exclusive copyright rights.

Like many of the arguments that have supported the use of copyright laws to protect listing data, I believe that this argument is misguided. First, Westermeier correctly addressed only copyright rights associated with the photographs and the expressive comments to the listing. As we all should know by now, there can be no copyright to the property facts contained in a single listing. In the perfect world, I might agree that a broker could limit the use of copyrighted photographs and listing comments if indeed the broker owned all of those rights. That is when reality sets in and we realize that the multiple listing service/broker/agent interrelationship is anything but perfect.

Russ goes on to say under the current listing arrangement, most agents are independent contractors who have not given up the ownership of their text and photos associated with a listing. While some agents may have agreements with their brokers that gives up their copyright, this practice is not universal (and I assume that the practice is not even common).

If, within a single MLS, there was uniformity that led to the broker owning the copyright in the copyrightable elements of each listing, Mr. Westermeier’s argument might be a good one. The reality is that within most MLSs, and even within many brokerages, there is no such uniformity. Because of this lack of uniformity, the argument of broker copyright to support an MLS listing display policy that applies equally to the entire MLS membership just won’t work.

DOJ-"opt-out" and a war with a "discounter"

A new Broker opens an office and has no listings yet. He goes to area brokers and asks if he can advertise their listings in his “window” to help get him started. Mostly they say yes. They are not trying to force out the competition and they are more than willing to help him.

Now they walk past his office and they see their listings in his window. No problem. Until they see this big sign on top of the houses for sale, which are their listings. “Our Mission: To reinvent the existing residential real estate business — an ANTIQUATED, INEFFICIENT, and COSTLY system of selling homes!!”

That is an actual statement from a website. It used to be pages and pages of “Help us fight the GREEDY brokers! Join our CAUSE!

Well, do you think the local brokers wanted their listings in that “window”? Would you? So the “window” is the internet, same difference isn’t it? That guy was using their listings to show homes on his site because he didn’t have any listings yet, and badmouthing them at the same time. Does that seem right to you?

The brokers didn’t opt out against this company because he was a discounter. They opted out against this guy because he was advertising their listings (VOW site showing other broker’s listings) while at the same time badmouthing them and calling them greedy SOBs! That’s the kind of “mud” that causes the “opt out” provision to be invoked against a “discounter”.

The local brokers said get my #%$## listings off that guy’s site now!

What do you think? Do you think the brokers should be forced to let this guy put their listings on his site, while he badmouths them on the site at the same time? I don’t think so. But I’d like to know what you think.

This is what the DOJ suit is about. The DOJ is trying to remove that right of brokers to say, OK, you can use my listings. But don’t sling mud at me from behind the picture of my listing! If you do that, I’m taking my picture out of your “window”.

Of course we could break his kneecaps, but opting out seems like a better answer 🙂 The brokers “opted out”. The new company didn’t have any homes to show on his site. He cleaned up the site a lot, though the Mission is still as it appears above without the CAPS, and a compromise was reached. Opting out is a negotiation tool to prevent companies from getting started on other broker’s listings while slinging arrows at them. There is another group involved. Same theory. EBAs. But they are “Johnny come lately’s to the suit”, so let’s stop at this example.

Tell me how you feel about all this.

DOJ suing NAR and the "opt out" clause

Galen: “As I understand it, the Justice Department is not challenging this sort of (NWMLS) setup.”

The reason NWMLS is not affected by the DOJ suit is because the DOJ is suing NAR. Most mls systems are owned by NAR and State Boards of Realtors. Ours is one of the few in the country that is not owned by the Board of Realtors. Our mls system is owned by the member brokers. So if the DOJ wins the suit against NAR, it would only affect mls systems owned by NAR and State Boards of Realtors.

Galen “I’ve heard that other MLS systems are a little different, where members can withold listings from selected brokers’ websites, which does little to keep nasty, mud tracking agents out …”

The “opt out” clause is a NAR policy. It could be the policy of broker owned mls systems in the country too. But the suit is against NAR, so even if broker owned mls systems had that rule the same as NAR, the suit would not appy unless the DOJ sued each mls separately. So when you hear that the suit does not involve NWMLS, that doesn’t necesarily mean they don’t have an “opt out” clause (I don’t know one way or the other). It means the suit does not involve them even if they do have the same clause, because they are not named in the suit and do not come under the NAR umbrella of the suit.

The two groups who are joining forces with the DOJ as potential targets of the “opt out” provision are the “discounters” and the EBAs. The reason these two groups fear being targeted has to do with the mud they track through, but not the kind of mud you are thinkiing of. It’s more like “mud-slinging” as opposed to dirty mud from rain soaked Seattle.

I will give an example in another post that should “shed some light” on this whole DOJ thing. I happen to have witnessed it first hand, and while I will not name names, I will explain how and why some brokers “opted out” on the “discount” broker.

I think it was a reasonable move and it worked. The discounter was not put out of business, nor was it the intention of the other brokers to put them out of business. It was to force them to clean up their act and stop mud slinging and it worked.

Read my next post and see if you feel differently about the “opt out” provision after seeing how it is used in real life examples.