NAR announces competition for game-changing ideas

Attendees at the NAR Leadership Summit in Chicago learned about a competition NAR is sponsoring for state and local REALTOR® associations to come up with game-changing ideas. NAR will fully fund the winning idea(s). The page for the program on NAR's site describes it this way:

REALTOR® associations are invited to submit big, bold ideas that will change the course of how REALTOR® associations work. Provide a brief description of your radical -- but implementable -- idea for evaluation by our panel of experts introduced at the Leadership Summit before the competition closes Oct. 1.

NAR invites ideas regarding a wide variety of association activities (including committees, education, and planning); but I'm interested in the fact that it includes "IT/MLS/Web." A panel of industry experts will select the winner(s). They include Gregg Larson of Clareity Consulting and John Tucillo of JTA LLC. NAR will announce winners at annual convention in San Diego in November.

If your association is working on a proposal related to "IT/MLS/Web", let us know if you want to bounce ideas off someone. We'd listen to your ideas, treat them confidentially, and give you feedback and suggestions. Our compensation will be sharing your ideas and enthusiasm (and if you win, you can thank us during your acceptance speech!).

Fun!

-Brian

StrategicMLS.com post on VOW policy clarifications

Tom Jacobson and John Rees have a new blog post explaining some of NAR's recent clarifications of the VOW policy. They're less wordy than I'm prone to being, so I figured I'd link to their good work rather writing my own post. Comments and discussion are still welcome here, of course.

-Brian

Neither fish nor fowl: Mobile technologies and IDX and VOW rules (Potential CMLS topic 3)

(Note: Shelley Specchio is CEO of the Northern Nevada Regional MLS, Inc., a host of the CMLS Conference in Lake Tahoe, September 30 – October 2. She and I have been discussing topics for the legal panel there. Shelley wants input and feedback from those likely to attend: Which legal topics are of greatest interest and what aspects of them are most important for MLSs? I agreed to do a series of blog posts on some of the candidate topics, cross-posting links to them in other forums and asking folks for their input. This is the third. If you have other topics to suggest, email me or comment on any of these posts.)

The question: To what extent can one broker distribute listing content relating to another broker's listings via mobile apps? Unfortunately, the answer is not clear, because these distributions generally do not fall under the IDX or VOW policies.

Some companies are offering texting-based or mobile-phone-app-based access to listing information. (I call all these tools 'mobile apps'.) This is old-hat on broker's own listings – the listing broker puts up a sign rider with a phone number (or phone number and code), the consumer sees the sign, calls the number, and gets info. Or the consumer texts to the number to get info. But the explosion of mobile apps has raised other questions.

Two example products are VoicePad's "MobileIDX" and SmarterAgent. VoicePad describes its "MobileIDX" product this way:

Now property buyers can access the entire local inventory from any telephone. VoicePad MobileIDX^TM delivers property information in high-quality sentence structure in both English and Spanish, by simply entering the street number, or MLS ID, of the home in which they have an interest. Unlike the wireless web or text messaging, MobileIDX works on every phone.

SmarterAgent describes its product this way:

Smarter Agent's Homes for Sale allows homebuyers to view all available MLS listing information on homes for sale around them anytime, anywhere, from the convenience of their cell phone. They can locate properties by GPS, address, zip code, or city; see details including price, square footage, beds/baths, and taxes; map properties closest to them; even see pictures!

I've never used VoicePad, having only heard descriptions of how the product works. There is an audio demo and a video on the company's site, but these demos emphasize the utility of the product to listing brokers. My understanding is (and the product's name and marketing materials suggest) that MobileIDX also works this way: Broker A signs up with VoicePad, which assigns Broker A a phone number; Broker A advertises the phone number to the public, inviting them to call that number whenever they want information about properties they see. The consumer sees Broker B's listing (driving by, on the web, it doesn't matter as long as the consumer sees the street number or MLS number). The consumer calls Broker A's VoicePad number; she enters the street number or MLS number, and VoicePad provides information about Broker B's listing.

I have used SmarterAgent in its Philadelphia incarnation, available from the Prudential Fox & Roach web site. (The button on the left that says "Search & Receive Local Listings From your Cell" takes you to a setup page for the product.) In the case of my iPhone, I entered my cell number, clicked through an agreement, got a text message, downloaded the app, and ran it. After all that, I could begin searching the Philly inventory, either by entering criteria or by using my phone's GPS location to find nearby properties. SmarterAgent's app displayed the results to me with PF&R branding on it and in what seems like compliance with the Philly MLS's IDX rules.

I think these tools, and many others like them, provide exciting possibilities for brokers to better serve consumers. (I really enjoyed using the SmarterAgent app.) But if they are not IDX and they are not VOWs, we probably have some work to ensure that innovation is permitted and supported while listing-broker and seller rights are not trampled.

What rules govern these uses?

What rules govern Broker A's use of Broker's B's listings in mobile apps like SmarterAgent and VoicePad? Well, that's not entirely clear. I think that probably neither of these applications qualifies as an IDX site or a VOW. (Note the "probably" – some MLSs have interpreted their IDX or VOW rules as specifically permitting these applications – given the arguments on both sides, I don't think that's unreasonable.) The NAR model rules define IDX in Section 18 as:

IDX affords MLS participants the option of authorizing display of their active listings on other participants' Internet websites.

(NAR, Handbook on Multiple Listing Policy, 2009 ed. Emphasis is mine. Link is to password-access site.) NAR's model rules define VOWs in Section 19.1(a) as:

A "Virtual Office Website" (VOW) is a participant's Internet website, or a feature of a participant's website...

(Ibid. Again my emphasis.) Neither of the example products is a "web site" and so I would argue neither is IDX or VOW. IDX is consent-based, meaning it is permitted because listing brokers consent to it. Any use of the listing data beyond what that consent permits is not IDX and is not permitted under the IDX rules. VOWs are permitted subject to the VOW policy and rules, and any use that goes beyond what those rules allow is not consistent with the rules. Both sets of rules expressly refer only to "web sites" and not to any other technology.

One could argue, and some have reasonably I think, that these applications are sufficiently analogous to web sites to be considered web sites for purposes of the IDX and VOW policies. Another fact surely strengthens the analogy argument: it is possible to view web sites through mobile phones, and in those cases, the sites are probably just IDX sites or VOWs. How does the "app-ness" of our example applications change the analysis? We could spend a whole series of posts debating that; the only consensus we would reach is that we can reach no consensus. (Thus my suggestion below that we address this issue head-on.)

Assuming that the example apps are neither IDX nor VOWs, what rules govern them? Again, we look to the NAR model rules, where Section 12 governs display and reproduction of MLS listing data generally. Section 12.1 provides:

Participants and those persons affiliated as licensees with such participants shall be permitted to display the MLS compilation to prospective purchasers only in conjunction with their ordinary business activities of attempting to locate ready, willing, and able buyers for the properties described in said MLS compilation.

(Ibid. Again my emphasis.) That does not permit willy-nilly display of other brokers' listings (which would just be advertising). Section 12.2 of the model rules provides:

Participants or their affiliated licensees may reproduce from the MLS compilation and distribute to prospective purchasers a reasonable* number of single copies of property listing data contained in the MLS compilation which relate to any properties in which the prospective purchasers are or may, in the judgment of the participants or their affiliated licensees, be interested.

*It is intended that the participant be permitted to provide prospective purchasers with listing data relating to properties which the prospective purchaser has a bona fide interest in purchasing or in which the participant is seeking to promote interest. The term reasonable, as used herein, should therefore be construed to permit only limited reproduction of property listing data intended to facilitate the prospective purchaser's decision-making process in the consideration of a purchase. Factors which shall be considered in deciding whether the reproductions made are consistent with this intent and thus reasonable in number, shall include, but are not limited to, the total number of listings in the MLS compilation, how closely the types of properties contained in such listings accord with the prospective purchaser's expressed desires and ability to purchase, whether the reproductions were made on a selective basis, and whether the type of properties contained in the property listing data is consistent with a normal itinerary of properties which would be shown to the prospective purchaser.

(Ibid. Again my emphasis. Actually, the model rules provide MLSs three options for Section 12.2, but most MLSs choose option 1 or option 2, and the language quoted here appears in both those options.)

In light of Section 12, why did we need a VOW policy? Well, the main reason is that some listing brokers believed that the medium other brokers used to display the listing brokers' listings was something over which they should have control: "Sure, you can fax my listing to your buyer, but you can't make it searchable to your clients on your web site." The VOW policy does two things: (1) it expressly permits virtual office web sites, laying to rest that question; and (2) it imposes rules on virtual office web sites intended to address the special risks associated with distributing listing data via automated means. In other words, Rule 12 was fine when we dealt with faxes and printouts from MLS, but automated listing distribution poses risks of 'scraping' etc. that were not present in traditional distributions. Consequently, automated distributions deserve specific rules to address those risks without discouraging the use of the technology.

The problem now is that there is now clarity about how MLSs should treat these products; a product embraced by one MLS might be shunned by another; brokers in one market might enjoy the use of it while brokers in another are not permitted to try it.

Solutions?

I think it makes sense to adopt a solution to this issue now, rather than waiting for confusion and maybe another lawsuit. And I'd suggest adapting the solution to the rules we already have. Here's one way of approaching it:

If a broker wants to display another broker's listings to a consumer by any "automated means," the displaying broker gets two choices:

1. If the displaying broker had no brokerage relationship with the consumer, the display would have to satisfy the IDX rule requirements. (For example, listings of brokers who opt out of IDX could not be displayed, displays would satisfy MLS disclosure requirements and requirements that listing brokers/agents be identified, if they occur in IDX.)
   
2. If the displaying broker had a brokerage relationship with the consumer, established either face-to-face or via the means identified in the VOW rules, then the display could take place under the VOW rule requirements. (For example, the app would have ID and password – or other means of confirming identity – respect for seller wishes regarding "internet" display, AVMs, and third-party commentary, etc.)
   

No other automated display of another broker's listing would permitted.

The change could be achieved by changing references in the existing VOW and IDX policies from "Internet Web site" to "automated means of distribution" (after carefully defining this term) and making a number of other tweaks. The problem for NAR and the MLSs affiliated with it is that they cannot change the VOW policy without DoJ approval, and I'm guessing that NAR would rather not reopen discussions with DoJ on this topic so soon. I suppose an MLS or group of MLSs could approach NAR and DoJ and propose language that would do the trick – not sure how that would work out. Another alternative would be for NAR to adopt a separate policy regarding distributions by "automated means" excluding VOWs, but have it closely parallel the VOW policy.

If your MLS is not affiliated with NAR (i.e., is broker-owned and operated), there is really no problem here. We have drafted rules for broker-owned MLSs that permit all "automated means" under largely the same terms as VOWs. This ensures that listing broker and MLS concerns are addressed but that new technologies are expressly permitted by MLS.

What do you think? Is this an important issue? Are there better options than the one I've described here? Are there other technologies that raise similar issues?

-Brian

State-of-the-art VOWs?

Frequently, I do presentations for groups of brokers explaining how VOWs work, why they might want to build them for their firms, and what to expect of other VOWs in their marketplaces. I usually include screen shots from one or two VOWs as examples.

Periodically, I like to go out and find new VOWs to use as examples, to freshen things up. This time, I figured I'd ask brokers and VOW technology providers to toot their own horns.

If your brokerage firm has a knockout VOW, or your company builds knock-out VOWs for brokers, drop me a line with some URLs (and your permission for me to view the VOW(s) and use screen shots for presentations). I'll let you know if I use your site as a model for other brokers.

Thanks!

-Brian

Does ‘search engine’ = benign use of listing data?

I pointed out in last week's capstone post on the "search engine indexing of IDX series" that any policy that permits indexing of IDX sites needs to define exactly what kinds of 'search engines' are permitted and what search engine uses are acceptable.

In case you were wondering why I'm so concerned about that, I recommend you take a look at the Google maps real estate interface. It was written up in Inman last month. Our friend Matt Cohen noted in a blog post, referring to the Australian incarnation of the Google interface, that this interface makes Google look more like a 'destination' site and less like a 'conduit' site. In other words, the site is trying capture consumer attention with its content, not just let them search and move off to the source web site. Victor Lund also pointed me to an article about how the interface has been controversial with some data content providers in its Australian incarnation.

(BTW, I wanted to show screen shots with some narrative here, but my web layout/authoring skills suxxors, so instead I created a PDF that you can download if you want to see what the Google site looks like without taking the time to figure it out for yourself.)

So, my concern: for right now, the Google interface in the U.S. is showing only the listings of listing brokers who have uploaded them to Google. But imagine this scenario on the hypothetical site www.Scoobynoogle.com:

Scoobynoogle.com 'spiders' the web looking for real estate listings on brokerage (and other) web sites.

Scoobynoogle.com caches all the information and presents it in an interface basically identical to the Google maps/real estate interface, aggregating data from multiple IDX sites based upon the address or other semi-unique identifiers, so there is one "push-pin" per listing.

The site is designed to keep consumers browsing on it as long as possible. It wraps the listing content and site functions with advertisements.

Scoobynoogle.com shows links back to the originating broker IDX sites (perhaps many of them) on the tab where Google currently has a link back to the "original webpage." The listing broker's site would not be favored among these links (though it might appear there).

Such a use would be a 'search engine.' But its purpose is materially different than the Google that you use to search the web. This hypothetical site is intended as a 'destination' – a site where the consumer lingers and executes multiple searches, rather than a 'conduit' – a site that gets the consumer to a broker's IDX site where she can continue her searching on the broker's interface.

When folks are thinking about how to define what sort of indexing of IDX sites is permissible, and by whom, they need to think about a use like the hypothetical Scubynoogle.com site and decide (1) if they are happy about it and (2) if not, how to define 'search engine' uses to include only those they consider benign.

BTW, I have no evidence that Google is even considering such an approach. But someone is. Even if Google is intent on just displaying listings of brokers who have uploaded them, the brokers should be thinking about what use Google is putting their listings to – is it web indexing (a 'conduit' use) or Google trying to build its own traffic numbers (a 'destination' use)?

-Brian

Cybersquatting on brokers’ names (Potential CMLS topic 2)

(Note: Shelley Specchio is CEO of the Northern Nevada Regional MLS, Inc., a host of the CMLS Conference in Lake Tahoe, September 30 – October 2. She and I have been discussing topics for the legal panel there. Shelley wants input and feedback from those likely to attend: Which legal topics are of greatest interest and what aspects of them are most important for MLSs? I agreed to do a series of blog posts on some of the candidate topics, cross-posting links to them in other forums and asking folks for their input. This is the second. If you have other topics to suggest, email me or comment on any of these posts.)

A common problem in the industry is that large brokerage firms are great targets for cybersquatters. According to the Anticyersquatting Consumer Protection Act (15 U.S.C. 1125(d)) or ACPA, cybersquatting or cyberpiracy is registering, trafficking in, or using a domain name identical to or confusingly similar to someone else's trade- or service mark in bad faith. The most common form in our industry results in folks registering a domain name that is a slight variation of a broker's firm name (also called "typosquatting"), putting up a page on the resulting domain, and selling real-estate-related links on the page. In most cases, this violates the trade- or service marks of the broker and may violate the ACPA.

What cybersquatting looks like

I've picked a victim at random. I opened the RealTrends 500 report and randomly picked a broker that our firm does not serve as a client. I selected Latter & Blum, Inc., a REALTOR® firm that serves New Orleans and the Gulf South. Latter & Blum's firm web site is at www.latter-blum.com. Check it out; I'll wait...

It turns out Latter & Blum affiliates have more than one site. If you type www.latterblum.com (one hyphen away from the first site) you end up at the site for NAI/Latter & Blum, a commercial real estate firm.

But try www.latterblumrealtors.com. The resulting homepage does not belong to the real estate firm. It shows links: "Home For Sale," "Real Estate Agent," "Foreclosed Home," "Real Estate," "Home Buying," and "Real Estate Commercial" – the links lead in turn to pages at the 'searchportal.information.com' domain, with links to other real estate brokers, home builders, foreclosure web sites, but not to Latter & Blum. If we look at Information.com and check the About page (http://information.com/help/about.html), we learn that it "is a privately-held, growing, profitable online advertising company that provides advertisers with results-driven access to online inventory and publishers with a way to monetize web, search and e-mail traffic."

Now try http://www.latterblumrealestate.com/. The homepage there shows links: "Real Estate," "First Time Home Buyer," "Home Value," in addition to links for local real estate markets, including Costa Rica, San Antonio, North Carolina, etc. It shows a copyright notice "© 2009 latterblumrealestate.com". Click on "Real Estate" and you get page with links to real estate broker web sites (not including Latter & Blum). This time, the pages appear on the www.latterblumrealestate.com domain. There is a link to "Inquire about this domain." (I interpret that as "inquire about purchasing this domain.")

You'll find similar results at http://www.latterblumrealty.com/, www.later-blum.com, and www.latter-blume.com, each a slight variation of the firm's name. Interestingly there is nothing at www.latter-blumrealty.com or www.latter-blumrealestate.com (and I hope my pointing that out does not result in a change). This can happen with smaller brokerage firms, too, if they have a well-known brand.

Trademark law is usually firmly on the side of the brokers here. Using a domain name that is confusingly similar to a broker's mark to market real-estate-related services infringes the broker's mark. The broker does not necessarily need to have the mark registered at the Patent & Trademark Office to claim its rights, though that certainly does not hurt. In the case of domains including "REALTOR" – NAR might have a thing or two to say about it, too, as that is NAR's registered mark, and it is subject to restrictions regarding its use.

Solving the problem

We've helped several brokers remedy these problems. The process usually starts with a cease and desist letter from our office. Sometimes the squatter will transfer the domain immediately as a result of our nasty-gram. More often, we get no response from the registrant (which is often hidden behind a registration privacy service or is located in Hong Kong or Panama). After waiting a bit for a response, we file a UDRP complaint against the registrant. UDRP stands for the "Uniform Domain-Name Dispute-Resolution Policy" adopted by ICANN (the international regulator of Internet domain names) and made a part of the registration agreement of every domain name registrar for names ending in .com, .net, .org, and some other (but not all) top-level domains. (For the sake of clarity, "registrant" is the person who registers, uses, and owns a domain name; "registrar" is the company, like Network Solutions or GoDaddy, that provides the registration services.)

The UDRP provides for an arbitration process. We file the arbitration complaint on behalf of the broker with one of the approved arbitration services. Usually, the registrant does not even respond to the complaint; in that case the arbitrator is most likely to rule in favor of our client. Unless the original registrant appeals by filing suit in court, the arbitration results in the registrar (not the registrant – this is important because the registrars are comparatively much easier to locate than the registrants) being ordered to turn the domain name over to our client.

We could go to court, of course, but that would be more expensive and the results might not be any more satisfactory. Under certain circumstances, though, it might make sense, especially if the defendant is an American company out of which we could extract money damages or attorney fees.

So, how can MLSs help brokers in these situations?

1. Educate them about the risks. (You can just forward a link to this post, if you like ;-) Encourage them to check likely typo-squats for their firm names.
   
2. If your MLS is owned by REALTOR® associations, they have an interest in protecting the "REALTOR" mark. So perhaps you can refer typo-squatted domains that include "REALTOR" to the local REALTOR® association or to NAR.
   
3. If you stumble on an example of a typo-squatter for a particular broker, give the broker a heads up.
   

So, I'm curious whether MLSs themselves are struggling with any domain name issues? If so, what kind? Would this be a good topic for CMLS? Post your comments.

(BTW, it's possible if you are viewing this post long after its original date that the examples will no longer illustrate the problem if Latter & Blum takes action to correct the cybersquatters identified here. You can illustrate it yourself using another well-known firm name, maybe even your own.)

-Brian