One of the most fun things about coming to a NAR event — whether Mid-Year or Annual — is the ability to connect previously unconnected dots and have an A-HA! moment. I had one such moment yesterday in the legal seminar put on by NAR. I thought I’d jot down a few thoughts, as the MLS Policy Committee meeting is tomorrow, and this particular issue should be discussed and adjudicated there.
I’ve written about the current MLS IDX Policy language before, noting that the key term is “control”. I believe that the latest version adds some clarification along the lines of “control means that you can comply with the IDX policy”. It’s a bit circular, but I get the idea.
Then yesterday, I’m attending the legal seminar where Gregg Larson presents to the assembled legal counsels for hundreds of Associations and MLS’s on the topic of syndication. And I have an A-HA moment.
Seems to me that there is a giant hole in the IDX policy, and it’s called syndication. We’re gonna need a far tighter definition of “control” to plug that particular hole.
Syndication, In Brief
For anyone who isn’t marinated in that particular discussion over the past couple of years, here are a bunch of posts on the topic. But the best touchpoint is Clareity’s Syndication Bill of Rights. In brief, Clareity suggests — and a number of companies and people in the industry support — a “Bill of Rights” to protect the broker, who is the copyright owner:
- The publisher will display the listing firm contact information, including phone number, in a prominent location on the listing detail page at no cost.
- The publisher will provide a prominent link to the broker, agent, and/or MLS website, home page or property detail page if provided, and will not use “nofollow” tags that negatively affect the SEO benefit of such links.
- If the publisher displays non-listing agent/firm information, then: (a) the full contact information for the listing agent/firm must be displayed at no charge, and these parties must be clearly identified as the listing agent/firm; (b) the listing/agent firm information must be displayed more prominently than the third-party agent/firm information; and (c) the site must not send leads to third party agents or firms if the consumer has not selected them as a contact recipient, and non-listing agents and firms will not be the default (pre-selected) choice for consumer contact.
- The publisher has a process for ensuring data accuracy with the data provider(s); ensuring data is updated or removed as appropriate, at least every three days.
- The publisher displays the date the listing data was last confirmed and updated, and the name of the data provider.
- The publisher respects the intellectual property of brokers and MLSs. The terms and conditions do not require brokers and MLSs to give up rights (beyond display rights) or to grant rights in perpetuity. The terms and conditions allow the listings to be used only for the explicit purpose for which they were provided. An accuracy disclaimer and copyright notice is displayed, attributing the copyright holder of the information. The publisher must obtain explicit consent from the date
provider f or any other uses or derivative works.
- The publisher does not re-syndicate, sub-license, power, or display listings on other websites without informing the data provider and obtaining their consent.
- The publisher will provide aggregate statistics regarding traffic, at no cost, to the data provider.
- The publisher provides reasonable mechanisms for preventing screen scraping and misuse of the listing data, understanding that s ome listing information must be exposed to search engines.
- The publisher does not re-syndicate to or “power” sites that fail to uphold the previously described rights.
At the Legal Seminar, what was brought forth was a set of checklists and guidelines for legal counsels of MLS and Associations to use in reviewing the syndication agreements that the publisher website would enter into with the broker-members. From a syndication standpoint, this sort of a standard for proper syndication is a huge step forward.
Strong Syndication Agreement = Control
Here’s where things get fun. Let us suppose for the moment that the MLS/Association promulgates a syndication standard that protects the broker’s rights fully, and a publisher website agrees to each and every term of such a syndication agreement. In fact, let’s suppose that in a one-on-one negotiation, Big Portal agrees with Big Broker to sign a syndication agreement that goes above and beyond the Bill of Rights. Let’s assume that the resulting syndication agreement is a “platinum” standard that would score a perfect 10 on the Clareity Scorecard.
This syndication agreement would be so strong that I see no way in which it would not rise to the level of “control” as per the IDX Policy document.
That is, suppose that Big Portal specifically agrees in the syndication agreement that it would implement whatever display rule the Big Broker demands of it; that could/would include all of the provisions for following the IDX display policy.
Under that scenario, I see no way in which a strong syndication agreement wouldn’t be “displays controlled by participants on other websites”.
And if that’s true, Big Broker can send all of the IDX listings in his MLS to the Big Portal as syndication, with lead flow going back to Big Broker.
Whoa. Whoa. Really?
Franchise IDX? How About Franchise Syndication… of IDX?
Since the critical controversy du jour is the Franchise IDX rule, consider what the above means.
It may seem unreasonable for a big portal, such as Trulia or Realtor.com to sign such an onerous syndication agreement. It isn’t at all unreasonable for, let’s say, coldwellbanker.com to sign that exact platinum-grade syndication agreement with one of its franchisee brokers.
And upon signing that syndication agreement, I see no mechanism at all that would prevent the Coldwell Banker franchisee to package up all of the IDX listings in its MLS and syndicate it up to coldwellbanker.com to be displayed. The whole point of IDX is to allow participants to display the listings of other participants, such that they would get the buyer leads, even while preserving the listing broker’s ownership over the listing.
And of course, syndication’s whole purpose is to advertise listings on third party websites, with leads flowing back to the advertising broker. Granted, the intent behind syndication was always to allow a broker to send his own listings to the publisher, not the listings of other brokers in the MLS. But unless I’m missing something huge, or unless the “control” language is tightened up, I don’t see what would prevent the syndication of IDX data under a strong syndication agreement.
Forget the Search Engine exception; forget the Franchise IDX policy. This is the mother of all exceptions.
Of Course, This Won’t Actually Happen, But…
I seriously doubt, of course, that the syndication of IDX thing would actually happen… for long. That is, the minute that some broker pulls that move, I’d imagine all of the listing brokers in the market would instantly pull out of IDX. At a minimum, the MLS legal staff would have a ton of complaints asking for an adjudication on the issue.
Furthermore, if you’re a major web portal, you’re in the tricky position of potentially having multiple IDX syndication feeds from multiple brokers in a given market, but all of them with the same actual data (except for the email where the consumer lead should go) resulting in all kinds of dupes.
So as the MLS Policy Committee gears up to meet tomorrow to consider and pass the new MLS IDX Policy, I’m hoping to see a real in-depth discussion of that troublesome term: “control”. It has to be defined. It has to be made tighter than it currently is.
Otherwise, all we’re signing up for is a Winter and Spring of Confusion.