MLSs and brokers infringing copyrights?

Dashing off a quick post tonight.

Elizabeth wrote earlier this year about the basics of copyright. But she was writing from the perspective of protecting MLS and broker copyrights. Today, I'm concerned based on inquiries from a couple clients this autumn about the possibility of MLSs and brokers infringing copyrights, particularly copyrights in photographs. Here are two scenarios:

1. MLS or broker hires someone to build them a web site ("site builder"). The site builder comes up with a dazzling design that includes some great photographs of the local area (maybe a downtown skyline and others). Unfortunately, the site designer found those photos online and failed to obtain permission from the copyright owners to include them on the MLS/broker web site.
2. Listing agent finds a photo of the property she is listing (maybe on the county assessor's web site, maybe on the web site of a magazine that featured the home in an architecture spread). The listing agent never gets permission from whoever took the photo to use it as a listing photo. She puts it in MLS, and it ends up all over the MLS, on the MLS's consumer-facing web site, and on other brokers' IDX sites.

In scenario 1, the MLS or broker is probably liable to the photo copyright owner(s) for copyright infringement. It does not matter that the MLS or broker did not know the photos on its site were infringing or that its site designer was using infringing content. There is really no way to eliminate this risk of liability, but the following steps can reduce it:

• Have a written agreement with the site designer under which the site designer (a) warrants that it has a license to any contents it will put on your site and (b) it will indemnify you (that is, pay legal costs and damages) if you get sued for infringement. Of course, the indemnification is good only to the extent the site designer can pay; some site designers are pretty small operators.
• So, you also need to be proactive. When you see your site design, look for photos on it, make a list of them, and ask the site designer to tell you specifically where each one came from and where the license was obtained. If your own staff are doing your site design, you need to do the same thing. Make someone other than the designer on your staff your "compliance officer" for this type of thing.

In scenario 2, the MLS and every brokerage that displays the infringing photo on its IDX site is probably a copyright infringer... UNLESS your web site satisfies the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA for short). The safe harbor requires that you put a DMCA  notice on your site--it must meet certain requirements defined by the statute. You must also appoint a copyright agent (probably someone on your staff) and register him/her with the U.S. Copyright Office. Then, anyone who finds infringing content on your site (content contributed by someone else, not by you or folks working on your behalf), must give your copyright agent notice that satisfies certain technical requirements. You can generally avoid liability by taking down the allegedly infringing content. (This is called a "notice and takedown process.")

Satisfying the DMCA safe harbor and complying with a notice under DMCA are not complicated or expensive, but they require attention to technical/legal details. Have your friendly local copyright attorney step you through the process.

By following the steps in this post, I hope your MLS or brokerage firm can avoid liability for copyright infringement.

Questions/comments?
-Brian