What Happened to Notice of Participants

by THE WAV GROUP on September 23, 2010

I came across this post today from an excellent blog by 2 consultant/Attorneys, Tim Jacobson and John Reese – check out thier blog at http://www.strategicmls.com

In this post, they remind us of some basics – republished here

There may be some confusion about the rights of MLS in connection with new opportunities to license listing content to third parties, such as  Realtors Property Resource™ (RPR), CoreLogic®, and Move®.  For years, National Association of REALTORS® (NAR) has appropriately taken the position that listings are the property of the participant who generated them.  Policy Statement 7.85 adopted by NAR in May, 2005 states that the participant owns the listing agreement, or in other words, the intangible property called a listing.  This is distinguished from the copyrightable listing content that may be owned by the participant if he or she takes appropriate steps for such ownership.  However, and consistent with the concept that the participant owns the listings, the policy statement also prohibits the use of listings and listing information by MLSs for other than the “defined purposes of MLS”, without first obtaining the participants consent, meaning all of the participants.  The “defined purposes of MLS” means use by participants through the MLS system for providing real estate brokerage services.  One interpretation went so far as to include IDX as being outside of the defined purposes of MLS.  Further, the consent cannot be required as a condition of obtaining or maintaining MLS participatory rights, which addressed the red herring issue of who owned the listings.  The policy statement allows MLS to presume such consent provided that listing brokers are given adequate prior notice of any intended use unrelated to the defined purpose of MLS, and given the opportunity to affirmatively withhold consent for that use.  Any notice must be real, however, and not a sham.  Participants need to be aware that the MLS is licensing listings to third parties, and let the participants know they have a right to opt-out of any such license.  MLS need to take notice of this policy statement and remember to obtain the consent of its participants before licensing any listing content to any third parties, including Realtors Property Resource™ (RPR), CoreLogic®, and Move®.  Failure to do so could put an MLS in a position of non-compliance with the NAR MLS model rules, and it could give a claim to a participant who does not want his/her listings being licensed without his/her consent.

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