While opportunities abound to market properties online, real estate professionals should take heed of what they are signing when they submit property listings content to Web sites they do not control, says a paper prepared for a subsidiary of the Florida Association of Realtors trade group.
“Hardly a week goes by without the announcement of a new ‘real estate vertical’ that focuses on providing real property listings to consumers,” according to the paper, which recommends, “Before adding any Web site to your advertising campaign, you should try to get a good understanding of the rights you grant to Web site operators when your listings are posted online.
“The bottom line for brokers is to read the terms of service and know what you are allowing the Web site operator to do when you post your property listing to its Web site.”
The 34-page “Data Distribution on the Web” paper, prepared by Real Estate Industry Solutions LLC — a wholly owned subsidiary of the Florida Realtors group that has a mission to identify, develop and provide products and services for real estate professionals — offers sample licensing agreements offered by real estate marketing sites, describes typical language used in these agreements, and also offers tips for those who are considering where to market properties online. The paper is available for free by registering at the company’s Web site.
Web site operators’ and real estate brokers’ interests “can diverge when it comes to how the content will be used” online, the report states, as site operators typically seek broad rights to minimize risk associated with the content, and content owners typically seek narrow rights to ensure the agreements are not overly broad.
A sample licensing agreement included in the report provides that the Web site owner does not claim ownership of content provided by its users, though content providers automatically grant “an irrevocable, perpetual, non-exclusive, fully paid, royalty-free, worldwide license to use, transmit copy, publicly perform, publicly display and distribute … content and to prepare derivative works of, or incorporate into other works, (this) content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing.”
The report explains individual legal terms in this description, noting that the “non-exclusive” clause means that the Web site operator is not the only entity allowed to use the content, for example, and that the preparation of “derivative works” allows the operator to transform, recast or adapt the content into a new work without infringing on any copyrights.
The report encourages industry professionals to “pay careful attention to provisions regarding the right to modify the agreement and to terminate the license,” as Web site operators typically reserve the right to modify any provision of the licensing agreement at any time, “with or without specific notice to you,” and under some agreements content providers “can stop using the service, but your content is left behind.”
Alan Yassky, a National Association of Realtors representative to Move Inc.’s board of directors who also serves on the board of managers for Real Estate Industry Solutions, referenced the report during a National Association of Realtors board of directors meeting last month
Yassky, in an address to the national Realtor group’s directors, said he never expected to see industry professionals “giving your listings away and not knowing where the hell they’re going — what are you doing? It will scare the hell out of you what you are authorizing people to do.” And he directed the audience to view the report for themselves.
The paper includes an analysis of the Move Inc. licensing agreement, among many other companies. Among Move’s terms: “by posting Content to any public area of the Move network, you grant Move all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the content on the Move network by any party for any purpose,” and “by transmitting content to the Move network, you grant, and you represent and warrant that you have the right to grant, to Move an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute the Content and to prepare derivative works of, or incorporate into other works, the Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing.”
Licensing agreements can be negotiable with some Web operators, the report states, while other companies may be inflexible on terms.
Real estate professionals should seek legal advice before entering into licensing agreements, the report states, and should check their listing agreements to ensure that they “have the right to advertise the property on the Web” and to ensure that agreements with associates, photographers, copywriters and others will extend to the new licensing agreement.
The paper also recommends that real estate professionals ensure that licensing is non-exclusive, “or that at the very least you retain the right to use the information yourself,” and to seek the right to approve of any sublicensees of the content provided to the Web site operator.
“If the operator is going to modify the content you upload in any way, or is going to combine it with content it’s gotten from other sources, try to limit the scope of your liability so that you aren’t responsible for claims relating to content that has been modified or combined,” the report suggests.
It’s best for content providers to ensure that they have a right to terminate the agreement for any or no reason at all, and to ensure that the Web site operator “will stop using the content that you submitted and remove it from its servers” upon termination, the paper recommends.
The paper includes a series of charts that describe whether or not content providers control where data goes with specific Web site operators.
ListHub, Point2, SubmitYourListings, vFlyer, Move, Trulia, LinkedIn, MySpace, YouTube and Yahoo! Groups are listed among the sites that allow content providers to control where the data goes, for example, while Backpage.com, Craigslist, eBay, Edgeio, Google Base, LiveDeal, Oodle, Yahoo, Vast, Homes.com, HomePages, Homespace, HotPads, LendingTree, MyNewPlace, PropertyShark, RealtyTrac and Zillow, among others, are listed as sites where content providers do not control where the data goes.
The paper includes the notice, “While an operator’s terms of service may allow it to use the data in any manner, it doesn’t mean that the operator intends or is sending the data to others or using it in a manner that wasn’t intended by the content provider — it just means that they can.”
