Editor’s note: The contributed piece below refers to policies multiple listing services (MLSs) could adopt in regard to platforms that allow agents and brokers to add listings to the MLS by a means other than the MLS system’s listing add/edit functionality. For example, adding listings to the MLS database via broker data platform Upstream or Zillow Group’s Bridge Listing Input data management tool or other platforms in development.
Today, the vast majority of listings are entered directly into the MLS with fewer than 10 MLSs of more than 600 MLSs nationwide using available “alternative listing input” products and perhaps a handful of MLSs that offer brokers the ability to feed listings into the MLS from their own back-end systems, according to Tim Dain, president of MARIS, a St. Louis-area MLS.
However, Dain anticipates that many more MLSs will enter license agreements with one or more alternative listing input products, including those built by brokerages or franchisors. “It’s important to us that the discussion about how alternative listing input is adopted and managed happens in a transparent manner,” Dain told Inman.
The buzz and competition regarding alternative listing input seems to have waned a bit. In April 2017, when I wrote this piece on nine legal considerations for alternative listing input, it was a hot topic. And despite it getting less press, it seems the continued push for alternative listing input is occurring in markets around the country.
The making of Fair Input Guidelines
As part of a review and assessment of such technology for MARIS, we’ve worked with MARIS CEO Tim Dain on a draft of Fair Input Guidelines. We decided to share our draft because we think it’s the sort of thing others might find useful — and we want thoughts from the industry hive mind.
So, it’s here for the community — for use, comment, criticism, critique and further refinement. Please feel free to comment, publish your own post or contact Dain or me directly.
We think we’ve hit on the major items an MLS might consider for protection of the MLS value proposition while adopting one or more alternative input and maintenance (AIM) products but would love any and all feedback.
What follows are the MLS business objectives upon which the guidelines are based, the context for the guidelines and the Fair Input Guidelines draft. The Fair Input Guidelines are drafted so that an MLS could adapt to them or adopt them as their own.
MLS listing input objectives
Foundational to these guidelines is the concept that the MLS serves an important role in facilitating an orderly, well-functioning, competitive marketplace for participants and subscribers to serve homebuyers and sellers.
Among the MLS’s services are the collection and dissemination of listing content — text, photos, video and other modes of data about real properties for sale or rent. When permitting listing content to be put into the MLS database, the MLS must ensure:
- MLS has the appropriate rights to use and protect the contributed content.
- MLS’s intellectual property aggregation objectives are facilitated.
- MLS may mitigate unpermitted use of listing content.
- Participant and subscriber adhere to MLS rules and MLS’s participant and subscriber agreements.
- MLS has transparency regarding functionality of products integrating into the MLS.
- MLS includes all participant listings of accepted listing types in a certain geographic region, unless excluded as permitted by MLS rules.
- MLS business rules are adhered to and protected as intellectual property, if applicable
These listing input objectives might vary from one organization to another.
The MLS provides standard means for its participants and subscribers to put listing content into the MLS’s systems, and it maintains and provides technical support for these means. Some real estate brokerage firms (the MLS’s participants) and salespeople (the MLS’s subscribers) desire to use alternative input and maintenance (AIM) — provided by the participants themselves or by third-party technology companies — to put listing content into MLS systems and maintain it there.
Principles as guidelines
These guidelines govern the use of AIM in an MLS that has adopted them. The guidelines are not MLS rules or a contractual agreement. MLSs permitting AIM may have other documents that implement the principles provided here in a variety of ways.
Fair Input Guidelines
With MLS’s listing input objectives in mind, MLS adopts these Fair Input Guidelines for alternative input and maintenance (AIM). These principles are offered neither to encourage nor discourage AIM.
If, however, an MLS participant or subscriber does decide to use or build AIM, they must adhere to these guidelines to ensure the cooperative marketplace facilitated by the MLS is maintained for the benefit of all participants and subscribers.
1. Contracts and access
Participants must authorize any access to MLS’s systems on behalf of participants or their subscribers. Each person or entity that has access must sign the applicable access agreements and use only the access credentials that the MLS has assigned to the person or entity.
No participant, subscriber or affiliated third-party technology provider is entitled access to any MLS content through an AIM that it would not otherwise be entitled to if using MLS’s standard means.
Participant’s and its third-party partners’ access to MLS’s systems is strictly for those purposes identified in applicable agreements.
2. Intellectual property rights
MLS requires, at a minimum, certain licenses to intellectual property (like copyrights in photos and text) in order to perform its central functions. MLSs may also seek assignments of rights in certain cases to protect the MLS database from misuse and to help strengthen participants’ rights over use of their listing content.
A participant’s AIM system must provide any information and confirmations necessary for the MLS to manage these licenses and assignments. A participant’s AIM system must obtain from subscribers and third parties (like photographers) any necessary licenses or assignments, or it must confirm to MLS that the participant has acquired the licenses or assignments by other means.
These rights are to all content submitted through AIM systems, excluding content withheld as permitted by MLS rules, regardless of whether MLS systems are able to consume the content.
3. Compliance with MLS business rules
Participants and subscribers of the MLS have a say in the business rules that govern inter-broker cooperation and data quality standards.
Any AIM system must implement the business rules and policies that MLS adopts and are binding on participants. MLS will provide these rules to participants, subscribers and their third-party partners subject to a license agreement.
Participants, subscribers and their affiliated third-party partners must acknowledge in the license agreement that the MLS’s business rules are proprietary, if applicable, and that they may not be shared with or used by any third party without the MLS’s consent.
4. Documentation of exempt listings
Most MLSs require participants to submit certain types of listings to the MLS. If the seller prefers the listing not to be disseminated in the MLS, the MLS usually requires documentation of the seller’s choice.
A participant’s AIM should obtain from the participant any seller authorization required by MLS rules for withholding a listing or it should confirm with MLS that the seller has provided this authorization to the participant.
In the alternative, the participant may convey this information to MLS by other means designated by MLS.
5. Unexpected consequences
MLS reserves the right to suspend all AIM systems, particular AIM systems or particular systems in relation to particular participants or subscribers, if MLS determines that unexpected consequences of the use of the applicable AIM systems will harm MLS’s listing input objectives.
All agreements regarding AIM with MLS will permit it to take this action, if necessary.
6. Competition and MLS
MLS is committed to competing with similar services and facilitating competition in the marketplace. MLS is not required, however, to assist its competitors to its own detriment and the detriment of MLS’s pro-competitive functions.
Therefore, in the event that MLS concludes an AIM functions to harm MLS, MLS may choose to suspend the AIM, so long as that action is consistent with law, policies and agreements to which MLS is subject.
7. Support and training
MLS does not provide technical or system support or training for a participant’s AIM. MLS will ensure its systems meet applicable industry standards, like RESO compliance, but participants are responsible for their own AIM systems.
Mitchell A. Skinner is an attorney and managing member at Larson Skinner based in Minneapolis, Minnesota.
