But what does the agent do who has signed a TOS Agreement with their broker indicating that the Broker owns the listings and the broker does not want their listings advertised on Trulia? Z57, Advanced Access, Number 1 Agent and many more website developers have submitted their feed to Trulia, to allow them to display their listings, in violation of many of these individual agents TOS agreements. Winderemere, J.L. Scott, Coldwell Banker Bain, and many other local and national companies have NOT authorized their listings to appear on Trulia, but they do, under the auspices and with the consent of these website developers, but not the agent’s brokers.
Trulia dilemma for everyone involved.
It’s a plus for individual agents as all leads are sent directly to them. But it’s an unauthorized use of listings. Most of these website designers provide an opt-out box if the individual agents want to do so, but how many even know it’s there?
As more individual brokerages realize that their listings are being shown on this (and other similar portal sites) without their permission, I wonder if they will be more persistent in enforcing their copyright.
The other end of this conflict is that the seller has the reasonable right to expect that the broker will promote the listing by all available means. And in the case of feeds generated by web-site vendors, it’s hard to complain about the onerous burdens imposed by those feeds being automatic and free.
But Marlow’s larger point stands. An MLS is a club composed of self-selected, dues-paying members. Its lawful existence should be protected by the Free Association clause of the U.S. Constitution. But I agree that a real estate listing is the unique work product of the listing agent and should be protected by copyright laws.
We end up with babies and bath-water, I expect. The entire Googlified model of the internet consists of stealing copyrighted material, aggregating it to draw eyes, then selling those eyes to advertisers. This is a perfect Tragedy of the Commons: I want to be findable, so that potential clients can find me, but I don’t want for my hard work at becoming findable to be used to promote my competition. Google (et cetera) has absolutely no legal or moral right to the content it hijacks, and one class action suit could shut the whole game down.
But everyone loves that cute little baby, the habitually rights-usurping internet. This would not seem to bode well for the American tradition of copyright protection…
Further notice: For what it’s worth, this is the clause we use in our listing contracts:
Any work product produced or adapted by Listing Broker or its Agents will remain the property of Listing Broker in perpetuity.
We do this because the web sites we build for our listings may be on-line for years — or we may reuse the web site when we re-list the house for sale.
Technorati Tags: blogging, disintermediation, real estate, real estate marketing
jf.sellsius says:
Some copyright questions:
1. If the seller took the listing photos–who owns the copyright to these?
2. If the seller copied floorplans created by builder, who owns the copyright in these floorplans?
3. The big one: are there listing “facts” and are they copyrightable?– i.e. beds, baths, square feet, date last sold, price sold for, address, location, etc. They are obviously not fought over post-closing (see zillow’s database)—the fight is over active facts.
If these copyrights are owned by the seller (1), builder (2) or no one (#3), and not the broker –you got a copyright loophole you can drive a moving van through.
To cover 1 & perhaps 2, the listing agreement with the seller could contain an “assignment of copyright” so that the seller is assigning seller’s rights to the broker. But that may not be enough — it may all boil down to who owns the “facts” contained in a listing (question 3). As a broker looking to protect a listing, there are heavier guns than copyright law.
Thus, the Trulia/aggregator issue may be much larger than copyright law, which may be a bump in the road on the internet highway when it comes to display & dissemination of listing “facts”, whatever they may be, and they be something.
August 22, 2006 — 10:49 am
jcricket says:
Wow, Greg – way to make an enormous, legally dubious claim with no sourcing. Additionally, I sincerely doubt your reasoning (“one class action suit to bring the whole thing down”) on any practical level. The courts have affirmed that search engines have legal rights to aggregate and republish the information available on web sites (you can always use robots.txt if you don’t want to be found) and I see nothing inherently immoral or unethical in their (basically) use of said information. Perhaps I’m wrong, but I’d appreciate you citing some (non-you) legal sources or cases google, yahoo, MSN, Altavista, etc. have lost that indicate their entire business model is illegal, unethical, immoral, etc..
Moreover, I fear you have increasingly mistaken your own Kool-aid for the “truth”. You incessantly pick fights with bears; write posts with fancy philosophical jargon as narrow “proof” that zillow’s whole model is flawed; think that your custom signs with an enormous picture of a dog that only a niche of people find attractive are “genius”, etc. It’s as if you think this is a game where the most important thing is your perception of “winning”, no matter what the cost.
I personally find your continued lack of humility and delight in being argumentive, increasingly a turn-off, despite initially enjoying your differing take on a host of issues. Apropos your discussions about “testing” marketing stunts, here’s at least one data point about your blog/online persona – I have concluded I would never use you to buy/sell Real Estate, and would tell others that you appear to care more about winning arguments (many of which you started) than building good relations with others. To me that’s a red flag when dealing an agent who will be negotiating with others – and whose ability to relate to a variety of people is of primary importance to me.
August 22, 2006 — 10:55 am
Greg Swann says:
> 1. If the seller took the listing photos-who owns the copyright to these?
We take all our own photos, so it doesn’t come up. We sometimes use historical snapshots taken by ohers, and we explicitly asserts rights over our versions of those photos.
> 2. If the seller copied floorplans created by builder, who owns the copyright in these floorplans?
The buidler, of course.
> 3. The big one: are there listing “facts” and are they copyrightable?- i.e. beds, baths, square feet, date last sold, price sold for, address, location, etc. They are obviously not fought over post-closing (see zillow’s database)–the fight is over active facts.
By my lights, the listing as a whole is a creative work and should be protected by copyright.
> If these copyrights are owned by the seller (1), builder (2) or no one (#3), and not the broker -you got a copyright loophole you can drive a moving van through.
And that’s why we don’t leave it to chance. We state explicitly that we own the work that we do.
> Thus, the Trulia/aggregator issue may be much larger than copyright law, which may be a bump in the road on the internet highway
I don’t have much hope for intellectual property rights, for what that’s worth.
August 22, 2006 — 11:08 am
Greg Swann says:
Jeepers, jcricket, +google +copyright +lawsuit barely yields ten million hits. I must have been imagining things.
Sorry to have disappointed you so badly, but you do bring out an interesting topic, one that I think about quite a bit: Should a corporate weblog — which this is, no matter how small the corporation — pull its punches in the hope of kissing the asses of potential clients. I expect you can guess my answer.
August 22, 2006 — 11:33 am
jcricket says:
There you go again Greg. Any criticism of your style, delivery or points is brushed off with a snarky aside and any modifications to your way of doing things would be “kissing someone’s ass”. Way to make things black and white.
From what I can tell you’ve been in business longer than I have, so I’m willing to bet you’ve discovered many things that “work for you” about the way you conduct your business. All I’m saying is that you’re clearly turning off a number of prospective clients and could perhaps get your same points across without the intentional antagonism and hubris.
August 22, 2006 — 12:54 pm
Greg Swann says:
I understood you the first time. I’m still unmoved. Our clients love us. I understand that we can’t please everyone, but we have the luxury of being able to choose whom we work with. They choose us, too, obviously, but that’s as it should be. When you tell me how you react to what I write, you are talking about yourself, not me. There’s nothing I can do about that, but there is nothing that I would do about it, either. If I have misused someone, as I think I did do with CarefulWithNumbers, I will do what I can to put things right. If you are objecting to my style of rhetoric, hit the “down” key instead.
The world is large. Life is short. Do the math.
(Oh, man! In Latin that would make a killer crest! I think I just built the BloodhoundBlog polo shirt.)
> All I’m saying is that you’re clearly turning off a number of prospective clients
I don’t go at things that way, not ever. But our web site has always been very sticky, and now this weblog is as well. People stay here for hours. It could be because I work to be unswervingly straightforward. It could be because I write in a way that is amusing to a certain type of reader. I don’t know, and I don’t care. I’m going to do my work my way no matter what, and the people who want my work done my way will come to me and the rest will shun me. And that again is as it should be.
I bid you good fortune.
August 22, 2006 — 1:31 pm
jf.sellsius says:
To shed further light (or perhaps, darkness) over the subject of vertical search engines, linking & copyright law I refer you to the following (and the links therein):
http://blog.sellsiusrealestate.com/?p=381
(Linking Law and the Rabbit Holes of the Web–this is a ripe battlefield for search spiders & those that oppose them. Read attorney Sableman’s paper if you have the stamina–Greg, I’m sure you can)
http://blog.sellsiusrealestate.com/?p=223
(Adult website scores Perfect 10 against Google in copyright suit– Google loses a preliminary injunction over its thumbnail display of copyrighted photos in Google Images)
It should also be noted that in any lawsuit you can win on the merits but be awarded nominal damages ($1).
Hypothetical:
An agent who has assigned his/her copyright to a broker nonetheless displays & publishes the listings throughout the internet, lets assume against the broker’s (not seller) instructions & therefore in violation of broker’s copyright. The house is sold at the asking price, the broker receives full commission and agent receives his/her compensation. In this example, the broker could sue the agent & Trulia, lets say, for copyright infringement (unlikely but this is to illustrate a point). The broker would win but unable to prove damages the agent/trulia would likely pay a $1. Further, if the copyright is not registered (most brokers wouldn’t do it), no legal fees could be assessed against the losing agent, resulting in the broker’s expenditure of hefty legal fees in exchange for a moral victory and a greenback.
The point of this example is that arguing copyright law to protect listings from search engines like Trulia, who deep link & take nothing from the commission stream, is the proverbial throwing the baby out with the bath water.
August 22, 2006 — 4:56 pm
Greg Swann says:
Dinner with clients, so I have to race, but I do want to read this. The distinction between fair-use for research and use for profit occured to me today. In that respect, an involuntary aggregator would have the same culpability as Google or other ad-supported search engines — the purpose of displayig the content is to generate advertising revenue, which revenue is the direct result of the usurped content. I would regard that as the same kind of violation as running a retail business on your land without your permission.
August 22, 2006 — 6:15 pm
Douglas says:
I got it!!!
The listing agent, broker, seller, and a herd of lawyers gather in a circle and argue over who violated which copyright. Buyers are attracted to the noise, are stimulated to submit an offer, and the sale is consumated.
Of course there’s a 10% premium added to the offer to cover everyone’s legal fees.
September 9, 2006 — 1:20 pm
Kevin says:
My non-lawyer take on this issue is that there seems to be two types of material in a listing:
1) Facts — e.g. property has 4 bedrooms, 2 bathrooms
2) Original work product — e.g. pictures, description
My understanding is that you can’t copyright facts, even if you explicitly try to. There may be an analogy here with the recent rulings against mlb.com in favor of fantasy baseball leagues; mlb.com struck out in trying to assert that it owned the rights to facts about baseball games — e.g. Barry Bonds hit 2 homeruns. See this article.
Pictures — even poorly taken ones — and property descriptions — even if ful uv mispelinggs and with, like, you know, bad grammar and stuff — both do seem like something intrinsically copyrighted, even if not explictly asserted as such.
With the caveat that I’m not a lawyer, I’m not sure that, even with an explicit copyright assertion, a listing agent would be able to protect property facts as his/her own. Original work product clearly would be.
Trulia’s approach seems mostly on the side of respecting copyrighted material, in keeping with their (mostly) respectful, deferential “we’re your friends” approach to the real estate business. Their web site shows three types of material:
1) Facts — bedrooms, bathrooms, address, age, size
2) Value-added facts derived either from 1) above or from publicly available sources — $/sq ft, average historical neighborhood prices, school districts
3) 1 picture (out of potentially 9 total in our MLS)
They seem to be in fair territory here since
1) They only include facts publicly available from county records and not what could be construed as work product, such as room dimensions, amenities, or views
2) Their value-added facts are derived from 1)
3) 1 picture (and a small thumbnail at that) is probably ok under fair use law
They also explicitly acknowledge the listing broker and refer you to the original listing on the broker’s web site for more information.
September 17, 2006 — 9:19 am
Athol Kay says:
All those #3 items are public information aren’t they? Anyone can visit local town hall and get them.
November 18, 2006 — 3:51 pm