SM/IDX: What counts as a social media platform?

I proposed back on November 18 that we should have an open discussion about social media and IDX. Enough folks responded here and on Facebook, etc., that they'd like to see the discussion.

In later posts, we’ll discuss the ways in which brokers might use or want to use social media with each other’s listings. I also want to discuss comments that Mike Wurzer has made here and on his blog about the value of proper license agreements (comments that I generally strongly support), but I still think we need to figure out first what we are talking about when we say “social media.” This question is a bit harder to answer than you might think. Wikipedia (the oracle that knows, or at least claims to know, all) offers this introduction to its article:

The term Social Media refers to the use of web-based and mobile technologies to turn communication into an interactive dialogue. Andreas Kaplan and Michael Haenlein define social media as "a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of user-generated content." Social media are media for social interaction, as a superset beyond social communication. Enabled by ubiquitously accessible and scalable communication techniques, social media substantially change the way of communication between organizations, communities, as well as individuals.

I don't find this particularly helpful. What I'd like is a definition that would help me identify an instance of social media and distinguish it from something that is not social media. I've reviewed what seems like a hundred definitions, and none of them quite does it for me. (You can see a sample of 30 definitions on Heidi Cohen's blog).

Most of the definitions (like the Wikipedia one) refer to vague principles and movements. I'd like to try to identify the things that seem to be common to the definitions I've reviewed that might be useful for categorizing something as social media (or not). I think a couple characteristics might matter: the technology/delivery of the platform; who operates the platform; content the platform provides; content the user/visitor provides; and interactions among users/visitors.

Technology/delivery of the SM platform

A threshold question is what technologies we want included in our definition. After all, my high school yearbook was a social medium: I asked friends to sign it, and they made comments to me, but they often put comments on each other's ‘posts.’ I'm proposing that we include platforms available via web-sites and on mobile devices. I'll use "mobile devices" to refer to mobile phones and tablet computers such as iPad. Note that there are no bright boundaries between "tablet," "netbook," and "laptop," so for the moment I'm going to assume social media can be delivered via any device that can connect to the Internet or SMS networks that has a human-readable display. A social media platform can use more than one delivery technology, such as web site and Android app. Please comment if you think this is too broad.

Who “operates” social media platforms?

Someone hosts or operates each social media platform. We might ask whether some characteristic of the operators of social media platforms allows us to distinguish social media from other phenomena on the Internet. So, Facebook operates Facebook.com, Larson/Sobotka operates this blog, etc. Of course, there might be multiple levels. For example, Larson/Sobotka operates this blog, but it is hosted on the Blogger platform and promoted with Feedburner—both tools provided by Google. So, is Larson/Sobotka the operator of this platform or is Google? Let's say that both are.

Based on the examples I cite below, including Twitter, Spotify, WAZE, and Zillow, I don’t think we can say that only certain kinds of companies operate social media platforms. I wonder whether a brokerage firm couldn't operate a social media site? If you say 'no,' please explain why. Maybe it’s the content on SM platforms that distinguishes them?

Content on SM platforms

The operator of a social media platform may or may not provide content of its own on the platform. So, for example, Facebook offers very little content, but provides a framework for users to do so. (I'll refer to "visitor" and "user" interchangeably where I mean a person who visits an SM website or uses an SM app.) Facebook does provide, or rather, allows advertisers to provide, advertising for sponsored products, etc. On the other end of the spectrum is a service like Spotify: it provides a huge portfolio of music content. In the middle is a platform like TripAdvisor.com, which allows visitors to supply much of the content but which links to services where visitors can reserve hotels and restaurants.

It seems that the sine qua non of an SM platform is that the visitors can contribute content visible to other visitors. This is sometimes called "user-generated content" or "UGC." Such sharing is not required on most sites, however, and it's generally possible to lurk on a social media site without sharing content and even without having an account on the site. In the latter case, the content available to an unregistered/un-logged-in visitor is usually, but not always, curtailed. Sharing takes three major forms: linking, commentary, and checking in, and they can be recursively applied.

Linking. If you find an interesting blog post or Youtube video and want to share it with your friends, you can post a link to it on Facebook or Twitter. Generally, sites that have content have buttons that allow you to share directly from them; the example here is from the New York Times.

Commentary. Commentary is a statement of view, opinion, or response to something. This blog post is a lengthy instance of commentary; the comments which hopefully others are adding to it are also commentary. You can also post directly to your own Facebook wall with a comment. See the example I posted on my Facebook page.

Most Tweets that do not include links are also forms of commentary. See the example here.

But note that commentary can be associated with links, too. So, for example, a Tweet might include a link and a comment by the person tweeting. Here is an example.

Your tweet, including a link, might be retweeted with someone else's comment added. And when you post a link on Facebook, other folks can comment on it. Note the "Comment" option under my Facebook post example.

Checking in. Some social media sites allow you to "check in" or otherwise indicate that you were present there or took some other kind of action without you actually contributing content in the form of commentary, photos, or links. See this example of a restaurant listing from Yelp’s iPhone app.

Note the button at the bottom that allows a checkin. There are other kinds of automatic posts you can do. So, for example, if I share a bottle of wine from our 'wine cellar' (a rack in our kitchen pantry) and write comments about it on the Cor.kz app on my iPhone, I have the option to have my comments automatically appear on Facebook. The same with listening to a playlist on Spotify:

All these types of UGC can be used in complicated ways and iteratively. For example, here is a screen shot from Waze, a community-driven GPS service with an iPad app.

The little buttons in lower right and lower level allow me to check in as being at a particular spot, but they also permit me to report an accident or a speed trap. These reports are more or less formulaic. But I can also choose to "chit chat" with other Waze users. (Hopefully, none of us are actually driving at this point.)

SM platforms also vary in the amount of user sharing that is actually possible through the platform. Sharing links from outside of Facebook is a central activity on Facebook. On Spotify, on the other hand, the sharing is predominantly a sharing of tracks or playlists to Facebook or Twitter though you can share with another Spotify user. See the example of my effort to share on Spotify above.

I expect that everyone will agree that in order for us to class a site as a “social media” platform, visitors must be able to contribute some kind of content; but whether the site operator provides content is not a defining characteristic of social media. Thus user-generated content seems to be a necessary but not sufficient condition for a platform to function as social media. I think there must also be the possibility for interaction among users.

Interaction with other users

The sharing of UGC on an SM platform can be one-to-one or one-to-many. For example, you can share a link in Facebook by messaging a single friend, or you can share it with the whole Facebook community (and the web). But it seems to me that every social media platform provides a means for the visitors/users to interact with each other as well as the platform operator. The most limited example is probably a blog like this. If you read the comments for a post, you may note commenters referring to each other in their comments. The interactivity is much richer on sites like Facebook, of course. See the responses I got from my ‘test’ Facebook status above:

Note that not only can someone “Like” or “Comment” on my status post, they can also like each other’s comments and respond to them, as can I.

So what is a social media platform (and what is not)?

This is a key question, as the proposed NAR policy would permit listings to be shared in "social media." If we don't know what SM is, how can we know whether someone is sharing stuff there appropriately? I argue that social media platforms must allow user-generated content and interaction among users/visitors. Other than that, I can’t see any distinguishing characteristics. Can you?

The question is important. If we want to limit listings to being put on only certain kinds of social media, we ought to be able to distinguish them from each other, right? So here are some questions and examples.

Are blogs social media if they accept comments? What about if they don't? Is this blog social media?

Is Zillow a social media site? Zillow provides a Q&A platform on its site:

Looks like UGC with an opportunity to interact with other users to me. Social media?

How about PostSecret.com? You write a secret on a postcard, mail it to the PostSecret folks (yes, via snail mail!) and they post it on their site. Definitely UGC, but it appears a little difficult to interact with other users. Not social media? Can you offer some additional characteristics or examples? Let’s have a discussion here (in the comments) and then I’ll try to distill the thinking into a definition for your approval in a later post.

-Brian

Copyright ownership of MLS listings - a refresher

There are new industry grumblings of websites infringing MLS and broker copyrights. We have received several emails regarding the alleged infringement, and I am communicating with one website owner on behalf of several clients. While this is not the proper forum for a discussion of the allegations – that is a discussion you should have with your attorney – these developments highlight the importance of understanding copyright ownership. After all, you cannot sue for copyright infringement based on a copyright you do not own (with limited exceptions).

Copyright ownership in MLS listing content can be complex, and I thought it might be a good time for a refresher. (Elizabeth wrote about copyright in more depth here and here.) I also want to highlight the benefits of having clear ownership of registered copyrights.

Please note that there are several other important areas of copyright law that are implicated by this post—such as the subject matter of copyrights, assignment and license principles, and the fair use doctrine—but I am reserving those topics for other posts. While it is tough to discuss copyright ownership in a vacuum, I will focus on it for the digestibility of this post. Please be aware that this is a simplistic view of copyright ownership.

Copyright ownership of MLS listing content

The following is not intended to be legal advice and only describes legal concepts in generalized terms with assumptions about the MLS industry. If you have specific questions regarding your organization, please contact an attorney.

Copyright ownership vests in the author of a work. The author is the person who creates the work. Ownership of MLS listing content is inherently problematic because there are generally several authors. Absent agreements that assign copyrights, many MLSs and brokers have ‘fractured ownership’ of their MLS listing content. ‘Fractured ownership’ can occur because of the following:

• MLSs likely have a “compilation” copyright in the database. Compilation copyright subsists in the selection, coordination, and arrangement the database, as long as it is not merely functional and there is a modicum of creativity.
• Vendors may also make claims to the compilation copyright.
• Brokers own copyrights in works that the broker and its employees create, but probably not works of their independent contractors.
• Salespeople may own the copyrights in the portions of listings, such as photographs and original text, that they create.
• Others, like property sellers and photographers, may own copyrights in portions they create and provide, such as photographs and original text.

‘Fractured ownership’ of the copyrights in listing data can create serious problems for MLSs pursuing infringers.

Clarifying ownership and its benefits

In the case of MLS, ‘fractured ownership’ of copyright can be remedied through agreements between salespeople, brokers, and the MLS. We have helped several MLSs through a ‘copyright hygiene’ process where we review their agreements and help them implement new agreements. Ideally, brokerages would assign ownership of their copyrights to the MLS; the brokerages could still use the listings as they did before the assignment, but with the added benefit that the MLS can protect the listings. Some brokers are philosophically opposed to this approach, though, and there are other ways to address these concerns.

Similarly, brokerages may want agreements where the salespeople assign ownership of their copyrights to the brokerage.

So, why does ownership matter? The owner of a copyright can more easily register the copyrights and has the power to enforce the copyrights.

Why is registration important? You need to register in order to sue an infringer. Note that compilation copyrights can be registered on a quarterly basis, which is a service we provide to many clients.

If you register before the infringement occurs, you could be entitled to statutory damages and attorney’s fees, even if actual damages are minimal. Statutory damages can be up to $150,000 per infringement. (This is why high profile RIAA awards seem so astronomical.) A single listing could easily have several copyrights in it (e.g., each photo and the original text).

Now take a moment and do the math: (up to $150,000 * X listings * Y copyrights in each listing) + attorney’s fees = a copyright infringement suit with teeth. I am not saying that this is what an MLS would necessarily be awarded at the end of a trial. However, this is part of the calculus that infringers should do when they are served with a complaint and begin to weigh their options.

So, when you send a cease and desist letter, do you have the copyright ownership to back it up? If you file suit, will it be dismissed because you do not own the copyright? Hopefully your MLS or brokerage has already considered these questions, and if not, hopefully this post provides a starting point for looking critically at the way your organization handles copyright ownership.

-Mitch

Follow the listing record

It's easy to lose track of where listing records go. From IDX sites to VOWs to third party aggregators to data licensees, the path of listings can be confusing. Hopefully this simplified* chart will help you better understand the flow of listing records (click on the image for a larger view).

The colors of the lines indicate what types of listings are generally passed on. Note that your MLS or brokerage could provide different types of listings under its specific policies and agreements.

• Green lines indicate the listing broker's own listings,
  
• Blue lines represent data that usually only include active listings,
  
• Purple lines represent active and maybe off-market listings, and
  
• Red lines represent all listings, active and off-market.

Note the following general characteristics as well:

• This drawing is not intended to describe unauthorized uses, only approved ones.
  
• Generally, the flow of the listings is from top to bottom. Thus listing brokers are near the top and consumers are near the bottom.
• The chart includes some efforts (like MLS consumer-facing site, CoreLogic InfoNet and RPR) that not all MLSs take part in.
• "MLS technical intermediaries" includes folks like your MLS vendor, mobile app provider (for applications used only by your MLS subscribers).

Hopefully this chart is useful to you as you consider branding data, creating listing exposure, managing data quality, and hunting down copyright infringers.

Cheers!
-Mitch

*Can you imagine complexity if we added more levels, such as the major syndicators and the sites to which they syndicate???

SM/IDX: We can do this together

I assume you are aware that I was wrong two weeks ago, when I said I expected NAR would pass the new social media IDX policy out of a sense of fatigue. In fact, the multiple listing policy committee approved the use of IDX listings in social media in concept only, with final approval pending the presentation of rule language in Washington in May. (The proposal to include IDX listings in RSS feeds was rejected outright, and, as expected, the franchisor IDX policy, which I have strongly criticized, was rescinded, though franchisors are encouraged to get set up as syndication channels to receive the listings of local brokers.)

The news in the last couple days that another large regional broker has decided to stop syndicating its listings, at least to some sites, makes IDX policy all the more important. Brokers who want to pursue the strategy of Edina Realty or Shorewest need very strong IDX programs in their markets to be able to mount an alternative to national listing websites. So it will be critical to get this policy right.

But we now have to wait until NAR publishes draft rule language to discuss the matter further… or do we? We propose a different approach, and we’re offering to provide some leadership to make it happen. Here’s what we will do:

1. We will do a series of blog posts, each intended to prompt a discussion leading to a draft set of rules, based on NAR’s model IDX rules.


2. Later this month: The first post will ask industry leaders to identify the ways that they think brokers and agents are already using other brokers’ listings in social media, ways they might want to do so, and a basis for defining what we mean when we say “social media.”


3. In December: Given the examples we collect in the previous step, we should be able to identify the following: (a) the benefits that displaying brokers expect to derive from the social media displays; (b) the concerns that listing brokers might have about those displays; (c) the issues that MLSs might have in policing the displays for policy compliance; and (d) difficulties we might have when defining “social media.”
   


4. In January: Out of the previous steps, we should be able to define what we mean by “social media” and provide a decent list of objectives that any social media rules should seek to achieve.


5. In February: We will post draft rules (based on the NAR model IDX rules) that we believe achieve the objectives previously defined. There will probably be more than one draft as the discussions refine them, but I’d like to see us propose something workable by the end of February.

In each of these steps, we will do a post or posts to provide an outline and preliminary proposals of issues; we’ll count on reader comments to refine them until we (as editors of the project) are satisfied. We will extend personal invitations to the members of NAR’s prior workgroups on these issues, to leading brokers of various stripes, and to MLS executives, to take part in the effort.

We don’t expect to get unanimous support, and we’re happy to include criticisms and alternative reviews in the final document. In any event, the effort should result in a thoughtful approach that is well grounded in policy objectives. If the results are good, NAR may choose to use them itself. If NAR develops its own approach, our effort should provide a rational alternative against which to measure it. Hopefully, we’ll all go into the DC meetings a little better prepared to discuss and resolve the really sticky issues.

Facilitating and editing this project will be a time-consuming effort on our part, and I’m not interested in doing it if we’ll only be talking to ourselves. I’m hoping to see at least a handful of comments on this post suggesting you are interested. If that does not happen, we’ll drop the matter and move on to other projects.

-Brian

Q&A with NAR policy staff on proposed IDX policy changes

Update late Nov. 10: Be sure to see some additional comments from Cliff Niersbach at NAR below. He corrects what may be a mistake in the way that I've described this. -B

In this afternoon's NAR legal seminar for state and local association (and MLS) legal counsel, I had a chance to ask Cliff Niersbach, VP for board policy at NAR, how NAR staff would interpret certain provisions of the new IDX policy if it is adopted as proposed. My goal was to help folks going into Saturday morning's meeting understand what it would mean in practice if it were adopted as proposed. Here are the questions I asked and my account of Cliff's responses. (I'm sending him a link to this ASAP so he can correct or clarify if I've made a mistake.)

The issues I addressed in my questions where (a) the scope of the proposed policy; (b) display requirements for social media; (c) a definition of "social media"; and (d) display exceptions for "thumbnails."

Scope of policy

According to the proposed revisions to ML policy 7.58, “Electronic display subject to this policy includes display on participants’ public websites, display on social media sites used by participants, RSS subscription, and applications for mobile devices.” My question was whether the "includes" in that sentence is exhaustive. In other words, is the list that follows "includes" exhaustive, or will other possible kinds of "electronic display" included or will they be automatically included in the future?

Cliff indicated that he believed the intent of the PAG was that this list be exhaustive. In other words, new types of media would not automatically be permitted as they are invented.

Display requirements for social media?

The proposed IDX policy would allow MLSs to require brokers displaying IDX data to use firewalls and maintain audit trails on "participants' websites and displays controlled by participants on others' websites." I asked whether MLSs could impose this requirement in the case of social media and other displays (itemized) above, as this part of the language refers specifically only to "participants' websites and displays controlled by participants on others' websites."

Cliff indicated that the PAG specifically excluded social media from this provision because the PAG recognized that brokers could not have this kind of control over social media sites.

This makes me somewhat distressed, as one member of the PAG has publicly said he does not believe the PAG thoroughly understood the implications of the social-media part of the proposed policy. I'm worried that Cliff may be overly confident about the PAG's understanding of this provision and their comfort with it, particularly in light of the broader industry criticisms of the social media provisions.

Defining "social media"

I asked about how "social media" will be defined. After all, almost every Web 2.0-era business website on the planet includes functions that would count as social media, and social media capabilities could be added easily to any site. (Visit Social Go if you want to see how.) Thus, could a national franchise with its web site at www.SuperDuperRealty.com add some social media functions to its web site, thus allowing its local franchisee to send the IDX feed to the national site under this policy? (Keep in mind based on the answer to the last question, that some of the MLS's policy requirements might not be applicable to the national franchisor site.) If the answer to that last question is "yes," it would permit national franchisors (and basically anyone else) to get IDX data, essentially an end-run around the rescission of the "franchisor indexing" policy.

Cliff responded that NAR has not defined "social media." Rather, he says that NAR would interpret it to mean whatever reasonable persons would commonly think of as "social media." I asked him to confirm that the example above (of the national franchisor) would not fall into that definition, and he said it would not qualify as the kind of site commonly viewed as social media. I asked whether NAR would support MLSs interpreting "social media" narrowly, but I don't think he actually answered that question.

Display exceptions for "thumbnails"

I noted that the proposed policy acknowledges that certain required disclosures may not be possible in displays of "minimal information," which the policy exemplifies as "'thumbnails', text messages, 'tweets', etc., of 200 characters or less." I asked Cliff whether a display of a listing that includes any photos of the listing would qualify under this policy as "minimal information," and thus qualify for this exemption.

Cliff said that was not the intent of the PAG, that a display with a photo would not qualify as a display of "minimal information" and thus would not qualify for those exemptions. He said this exemption was intended to address things like SMS, tweets, and short messages. So, the NAR staff would probably interpret any display including a listing photo as being subject to any MLS disclosure requirements (such as displaying listing broker, listing agent, source of information, personal-non-commercial-use disclosure, and deemed-reliable disclosure).

I really appreciated Cliff answering these questions candidly at this point. I hope that the answers are helpful to those of you who are involved in the deliberations on Saturday.

-Brian

A shot over the bow

Recent vendor events have prompted us to address what may seem obvious: our duty is to our clients. Period. Another event with a vendor functions as a compliment to our firm’s value proposition—but also as a warning to our clients about sneaky practices of a small number of industry vendors.

Duty to our clients

Bear in mind our goals when reviewing and negotiating contracts for our clients. We strive to: (1) educate the client about the agreement, (2) suggest changes to the agreement to lower potential risk, and (3) negotiate at the client’s direction. Ultimately the client will decide whether to move forward and at what point to do so.

Recently, a vendor’s representative told us that when our firm reviews an agreement for one of their customers, the vendor’s staff assumes the process will take four months longer than it would with another (unrepresented?) customer. The representative seemed annoyed that we would slow down the vendor’s business cycle. It’s understandable that vendors want to sign up business as quickly as possible, but that is not our principal goal (unless it’s the client’s).

Our response is simple. If the client slows down the process because the client more fully understands the benefits and risks of an agreement, we are doing our job. The converse is sometimes true, too. We help the client better understand the agreement, which prompts the client to move quickly.

Our value proposition

The second event is in a way a compliment, but also somewhat troubling (ridiculous? desperate?). We often review the same contract from the same vendor for multiple association/MLS clients. As a result, we come to know the vendors’ contracts; we also learn where our clients can push the negotiating envelope and where they are unlikely to succeed. This state of affairs is true with a number of vendors: MLS systems, data licensing, you name it. Our clients recognize that we offer that value, and from this anecdote, you’ll see that the vendors do, too.

Recently, a vendor representative sent two ‘final’ versions of an agreement to a client: one with better terms, which only the client was supposed to know about, and one with less beneficial terms which the vendor asked our client to share with us. In other words, a vendor asked our client to hide from us the beneficial term the client received, presumably so that we would not ask for the same term on behalf of other clients. We are the client’s attorneys, negotiating the deal on the client’s behalf, and even under any confidentiality provision in the agreement, our client was entitled to share the ‘true’ terms of the agreement with us. Our client chose not to play the vendor’s childish games.

Presumably, the vendor representative did not want us to know that it was accepting particular terms because we’ll negotiate similar agreements with the vendor for other clients in the future. As I said, this is one reason clients choose us for representation; apparently, this vendor recognizes that. However, by attempting to have the client hide one version of the agreement from us, the vendor has potentially hurt future negotiations. With future clients, we are likely to be more cautious as a result of the vendor’s past actions, and the client may be more cautious about moving forward, too – which could slow down the process further. (As a side note, it is strange actions like this that help fuel industry conspiracy theories.)

Neither event is a ‘big deal.’ And there are other examples of strange interactions like this, but hopefully you get the point. It is understandable that any perceived impediment to forward progress may seem unacceptable, but that’s not how we see it. In fact, a client slowing a deal down, or even choosing not to continue with a vendor, can be a manifestation of us achieving one of our goals – that the client better understands a proposed agreement. Our firm’s value proposition is in part founded on our repeat experience with events and agreements that are commonplaces for associations and MLSs; a vendor that tries to prevent us creating that value with our clients is likely to look silly, or worse yet, desperate and dishonest.

So, there’s our warning shot over the bow. If you are a Patrick O’Brian fan, think of it as being fired from the bow chaser (maybe a nine-pounder). If such shenanigans continue, next time may be a broadside of 24-pounders.

-Brian

Strategic view of proposed NAR social media, RSS, mobile policy

In Anaheim next week, NAR will likely pass the social media (and RSS etc.) policy proposed by its newest PAG on the topic. Elizabeth has summarized some of the tactical details on the social media side. I’m going to focus on the strategic implications and offer some thoughts to the key players.

The new proposal’s virtue is that it allows greater flexibility for brokers to display other brokers' listings in social media (and on other types of sites—see E’s post for details). That’s also the proposal’s vice. The CMLS phone conference/Webex on this issue on October 31 raised and attempted to address many of the issues Elizabeth did in her post (the CMLS program spent more time on RSS than Elizabeth did, and that’s a valuable addition). I recommend watching it to pick up some other perspectives.

The long and short of it: The policy is greatly imperfect, but it’s less imperfect than the last iteration. Because I suspect NAR’s committee leadership is fatigued with this issue, I think it will pass, either as is or with modifications made in Anaheim. CMLS has written a letter to NAR's multiple listing policy committee recommending changes. But, assuming the policy passes as proposed, what strategic actions should the industry’s key players be thinking about now?

Brokers

Assume that your listings are going to appear in a lot more places on the Internet. If you are distressed about that, you will have a choice: (a) exclude your listings from IDX (and give up your ability to display other brokers’ listings on your IDX site); or (b) deal with this new policy. I recommend the latter course of action for most brokers, though some may be able to walk away from IDX (in fact, some leading brokers in a couple smaller markets have never taken part in IDX).

As for HOW to deal with it, you can probably expect a lot more confusing calls from unhappy consumers who do not understand how their listings ended up in undesirable places. As few of your agents will understand it, either, the burden will fall on the broker to deal with it. You need a point person on your staff (you or someone else), to be the “go to” person on these issues and to be proactive about addressing concerns. The MLS may be able to help, but unless you “vet” your issues before calling the MLS, your problems may get lost in the shuffle. Get this person fully educated on IDX, VOW, and social media policies NOW. Make sure all your agents know who this person is.

This strategy will be a challenge. I’ve been going around the country in the last year giving presentations on ethical and legal concerns for brokers in social media and listing syndication. Most of you have no clue what you are facing, despite the risks of ethics complaints and license-law violations. You need to get educated.

MLS

The MLS’s duty is to educate brokers and monitor the data uses and policies. In this context, I suggest that you make an effort to educate brokers starting immediately after the convention (assuming the policy is passed), to explain the implications and risks of the new policy. (I’m happy to come and give that talk, but others can cover it well, too.)

When interpreting and enforcing the new policy, I recommend that MLSs interpret the policy as conservatively as possible: in other words, read it to allow displaying brokers as few options and MLS as much flexibility as possible. This is not because I want brokers’ ability to innovate to be limited. Rather, it recognizes that it’s easier to keep the cat in the bag than to get it back in there after it’s out.

Third, your MLS’s license agreement with brokers for IDX (some MLSs call it a RETS agreement, an IDX agreement, a participant data license agreement, or something else) needs to be reviewed to ensure it accounts for some of the trickier issues that might come up in these new contexts. Talk to local counsel, or call your friendly MLS lawyers here. Mike Wurzer over at FBS has argued that the license agreement is central to solving the problem of managing data use. We think it's only the first step, but it is an essential one.

Finally, I suggest that MLSs monitor the rate of broker opt-out from IDX after implementation of this policy. If social media issues are scary enough to get brokers to drop out of IDX, then I think that NAR will be motivated to reconsider the policy.

NAR

As for NAR, I have a couple suggestions, which I expect will be ignored (but that’s never stopped me from making them before). First, NAR should adopt this policy with an effective date no earlier than July 1, 2012. MLSs need time to make the necessary adjustments, and the six weeks between Anaheim and when NAR releases next year’s Handbook on ML Policy is not enough.

Second, NAR should tell its staff not to interpret the new policy so as to contradict a local MLS’s interpretation of it. There are comical examples in the past of NAR staff interpreting a policy in a way that no MLS committee (on local or national level) would agree makes sense. (Remember when NAR staff said that MLSs could not require listing brokers to submit listing photos?) NAR should defer to the local MLS’s interpretation unless it is manifestly contrary to the language of the policy.

Finally, NAR should interpret the new policy so as to allow local MLSs to impose additional limitations consistent with the policy’s principles. NAR cannot think of everything, so it should let the MLSs deal with the problems that come up.

Concluding thoughts

Though it will be painful, it’s probably best that this policy change happen now so we can work through the problems. NAR cannot craft a perfect policy using a crystal ball; only painful experience will tell which provisions really need to be there and which ones do not. Get ready for that painful experience, everyone!

I should disclose, though, that our firm makes a decent amount of money every time NAR adopts a new 'enlightened' policy, so it's perhaps a little self-serving of me to suggest that everyone just relax and enjoy the new rules ;-)

(To the industry illuminati who read this, what other advice would you offer brokers, MLSs, and NAR?)

-Brian