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Update 10:40 a.m. PT 11/16/15: The NAR board overwhelmingly passed the revisions to its MLS policy on Monday. There was no discussion.
SAN DIEGO — MLSs may soon be required to provide pending listing information in agent and broker listing feeds, giving brokers the choice whether to display the information on their websites for consumers.
The Multiple Listing Issues and Policies Committee of the National Association of Realtors (NAR) on Saturday approved an amendment to MLS Policy Statement 7.58, Internet data exchange (IDX) Policy, that would require MLSs to provide “non-confidential pending sale listing data” in IDX feeds.
Bill Lublin
“It’s the same information that would show up in a consumer printout” from the MLS, said Bill Lublin, chairman of the NAR MLS Technology and Emerging Issues Advisory Board and member of the Multiple Listing Issues and Policies Committee.
Consumers want to know why a particular listing disappears from their home search from one day to the next, Lublin said. Information the MLS considers confidential, such as contract dates, would not be included.
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It would be up to brokers whether or not to display the pending listings, Lublin said.
The amendment is similar those passed in the past year requiring MLSs to provide brokers with sold data they could choose to display on their sites and requiring MLSs to allow non-MLS property data next to listings. Those moves were similarly meant to make agent and broker websites more friendly to consumers and more competitive with third-party listing portals such as Zillow.
The pending listings data amendment and two other proposed changes (detailed below) now head to NAR’s Executive Committee where they will either be approved and sent to NAR’s board of directors for a vote on Monday, approved and sent to the board with changes, or sent back to the trade group’s MLS advisory board.
The three proposals passed with little or no discussion. Lublin said he considers the proposals “benign” and expects they will be approved by the NAR board on Monday.
Arbitration
The committee also approved an addition to NAR’s model MLS rules that would give MLSs permission to sanction their non-Realtor members if they fail to either pay out an arbitration award or deposit the funds in an association escrow account.
The addition would close a bit of a loophole for Realtor-operated MLSs that allow non-Realtor members (many do not).
Article 17 of the Realtor code of ethics requires that Realtors settle disputes through arbitration rather than litigation. This is meant to save members money, prevent bigger associations from bullying smaller ones through litigation, and to allow matters such as commission disputes to be handled by peers that understand how the industry works, Lublin said.
While non-Realtors are not bound by the code, many MLSs hold their non-Realtor members to a similar arbitration standard, he said.
The proposed change would add this language to Section 15 of the model MLS rules:
“Awards: The obligation to arbitrate includes the duty to either 1) pay an award to the party(ies) named in the award or 2) deposit the funds with the Secretary or Executive Officer to be held in an escrow or trust account maintained for this purpose. Failure to satisfy the award or deposit the funds with the association within ten (10) days may be considered a violation of the MLS rules and may subject the Participant to disciplinary action at the sole discretion of the MLS.”
The addition would protect members from non-Realtor peers who don’t keep their word, Lublin said. “There should be consequences to bad actions,” he said.
Copyright liability
The committee also passed a recommendation from NAR Associate Counsel Chloe Hecht. She proposed that an MLS policy statement be added to NAR’s Handbook on Multiple Listing Policy stressing the importance of complying with safe harbor provisions of the Digital Millennium Copyright Act.
The DMCA can help brokers and MLSs limit their liability for copyright infringement claims should their websites display content that was shared without permission of the copyright holder.
NAR hopes the proposal will bring more awareness to the benefits of DMCA compliance and its use as a risk management tool, Hecht told attendees at Saturday’s committee meeting.
Although the MLS advisory board may choose to consider requiring compliance with the DMCA safe harbor provisions, for now the statement is meant to be purely informational, Lublin said.
The new MLS policy statement would read as follows:
Digital Millennium Copyright Act Safe Harbor
The Digital Millennium Copyright Act (DMCA) is a federal copyright law that enhances the penalties for copyright infringement occurring on the Internet. The law provides exemptions or “safe harbors” from copyright infringement liability for online service providers (OSP) that satisfy certain criteria. Courts construe the definition of “online service provider” broadly, which will likely include MLSs as well as participants and subscribers hosting an IDX display.
One safe harbor limits the liability of an OSP that hosts a system, network or website on which Internet users may post user-generated content. If the OSP complies with the provisions of this DMCA safe harbor, it cannot be liable for copyright infringement if a user posts infringing material on its website. This protects an OSP from incurring significant sums in copyright infringement damages, as statutory damages are as high as $150,000 per work. For this reason, it is highly recommended that MLSs, participants and subscribers comply with the DMCA safe harbor provisions discussed herein.
To qualify for this safe harbor, the OSP must:
(1) Designate on its website and register with the Copyright Office an agent to receive takedown requests. The agent could be the MLS, participant, subscriber, or other individual or entity.
(2) Develop and post a DMCA-compliant website policy that addresses repeat offenders.
(3) Comply with the DMCA takedown procedure. If a copyright owner submits a takedown notice to the OSP, which alleges infringement of its copyright at a certain location, then the OSP must promptly remove allegedly infringing material. The alleged infringer may submit a counter-notice that the OSP must share with the copyright owner. If the copyright owner fails to initiate a copyright lawsuit within ten (10) days, then the OSP may restore the removed material.
(4) Have no actual knowledge of any complained-of infringing activity.
(5) Not be aware of facts or circumstances from which complained-of infringing activity is apparent.
(6) Not receive a financial benefit attributable to complained-of infringing activity when the OSP is capable of controlling such activity.
Full compliance with these DMCA safe harbor criteria will mitigate an OSP’s copyright infringement liability. For more information see 17 U.S.C. §512. ”
