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In a tentative win for multiple listing systems, the U.S. Copyright Office seems to have changed course after calling into question MLSs’ right to obtain copyright protection for their databases.
Last fall, the office issued requests for clarification to hundreds of MLSs regarding pending applications, and suggested the MLSs hadn’t shown the proper level of creativity in the arrangement, selection, or coordination of their databases to qualify for protection under copyright law. In an effort to deal with the situation on a collective basis, the National Association of REALTORS® convinced the Copyright Office to issue a grace period during which the association could better explain the creativity of MLSs in general.
Now that grace period is being lifted and MLSs again have the opportunity to state their cases individually. NAR created educational materials, including a template descriptive statement, to help MLSs better state their cases for copyright protection. The Copyright Office approved those materials, though it noted that all applications will be reviewed on their own merits.
Furthermore, the Copyright Office announced it will streamline the application review process. MLS applicants may now submit one revised descriptive statement, which will apply to all pending submissions, minimizing the materials that MLSs need to supply. MLSs may also withdraw older claims they no longer want to pursue. The Copyright Office is now sending emails to MLS applicants, offering them 45 days to submit the revised descriptive statement.
The Fight for Copyright
When the Copyright Office questioned the rights of multiple listing services to obtain copyright protection for their databases last fall, it was a surprise for the industry. After all, the action did represent a significant change from the norm. For decades, many MLSs have obtained copyright registrations protecting their databases with little or no question from the federal government.
“It seemed to come right out of the blue,” says Corporate Counsel Kriti Rajput of MLSListings Inc. in Sunnyvale, Calif. “Prior to this situation, we’d never had a letter questioning our copyright claims from the government, that I know of.”
MLS executives weren’t the only ones taken aback by the shift. “We were surprised about the pushback from the copyright office,” says industry watcher Mitchell A. Skinner, lawyer and managing member of Larson Skinner PLLC, a Minneapolis law firm that routinely deals with both copyright and MLS issues. “For more than 18 years, MLSs have been filing copyright applications with the U.S. Copyright Office for federal copyright registration of compilation copyright in the MLS database. And for all that time, the Copyright Office has approved those applications.”
NAR was quick to act on behalf of these MLSs. NAR Senior Counsel Chloe Hecht and NAR Senior Technology Policy Representative Melanie Wyne held a series of meetings with representatives from the Copyright Office to explain the creative process of gathering and displaying listing information and discuss how this policy change may affect the industry. In response, the Copyright Office granted MLSs a grace period on all pending applications to allow the time necessary to assess the situation and determine the best plan of action for moving forward.
Defining Creativity
Those unacquainted with copyright law might be surprised to learn that the bar is actually quite low for what constitutes creativity. The Copyright Office cited the 1991 U.S. Supreme Court case Feist Publications, Inc., v. Rural Telephone Service Co. as the basis for denying registration of MLS databases; the ruling found that copyright can apply only to the creative aspects of a collection, not to the facts themselves. However, the organization of facts and other information may be protected if the selection, coordination, and arrangement show a spark of creativity, which Hecht notes is a low threshold to achieve. She adds that subsequent court rulings made after the 1991 case generally support the claims MLSs make in copyright protection for their databases.
Many in the industry argue that MLSs do exert a great deal of creative force in deciding how data will be selected, collected, arranged, and displayed. And with this new window to revise the descriptive statement on their applications, MLSs are getting another chance to highlight the creativity inherent in their databases.
“An MLS’s chances of receiving a copyright registration increase as the number of creative choices they’ve made increases. Anytime they decide to add or delete fields, or change the database display, they’re demonstrating creativity,” says Hecht. “Those choices are often based on local or geographic differences, which is one of the real strengths that MLSs bring to the real estate industry in general.”
Hecht says other examples of creative choices include revising data field names and descriptions, altering how photographs are displayed, and changing data sources on back-end fields. The argument for protection is further strengthened when agents and brokers agree that the creative choices they make when uploading listing content—such as which photographs to include in what order and which data fields to complete—are a “work made for hire” for the MLS. This doesn’t give the MLS ownership of the listing content, but it does acknowledge that the MLS “owns” how participants choose to upload that content.
Tools Beyond Intellectual Property
During the grace period, NAR convened the Protecting Listing Content Workgroup to bring brokers and MLSs together to articulate the best legal strategy for protecting property listing content and devise a plan to help brokers and MLSs implement such strategy. The group not only gave feedback on NAR’s ongoing conversations with the Copyright Office but also looked at other ways MLSs could protect data, without the use of copyright protection.
While many MLSs see copyright as an important vehicle for protecting listing data from being stolen or misused, some don’t bother seeking such protections from the federal government. There are other vehicles for protecting listing data: license agreements, terms of use, breach of contract laws, and the Computer Fraud and Abuse Act, among others. Still, many MLSs would like to retain as many weapons as possible in the battle to keep listing data safe.
“Keeping listing data out of the hands of bad actors is time-consuming and important to our subscribers, and MLSs need all the help they can get,” says Rajput. “While we’re planning on renewing our copyright, we also need to watch where our data is going and enforce our agreements and licenses.”
