The MLS Is Taking a Fateful Step: Who Owns the Listing?

A few conversations, and one document later... I say there is a real risk brewing in the industry

In September of last year, I wrote a post about REcolorado after its new management came into place, and talked about how its new data policy was a major problem:

I have spoken about PDAP on an Industry Relations podcast before, but let me touch on it. I wrote about it in this post last year and might repeat a lot of that.

A fundamental understanding in real estate and the MLS world is that the broker owns the listing. Hence, every broker can do whatever he wants with his own listings. Period, end of story. He can send the listings to portals or not. He can fly a plane trailing a banner, or not. He can hire singing telegrams to market that listing if he wants.

Because of this basic premise, that the broker is the owner of the listing, PDAP was never considered a grant of license by the MLS.

Nothing much happened from that, because brokers in the Denver metro area chose to just surrender rather than fight. I get it.

However, the ground has shifted quite a lot in a year. The biggest shift, of course, is Compass acquiring Anywhere. A close second is Zillow asserting its power over the industry, thereby making clear to the world that NAR is no longer in control.

That’s the general background, against which events happened.

Last week, I had a couple of very interesting conversations with people who asked for anonymity and spoke on background about the latest developments in the world of MLS. It seems that CRMLS, the largest (second-largest now?) MLS in the country has begun to require that every subscriber accept a new user agreement in order to access it.

I then received a copy of this new End User License Agreement (EULA), which I will attach below.

We have to talk about this. In this new EULA, CRMLS makes an assertion of intellectual property ownership that is… if not novel, because the MLSs have been using it for a while, then not well understood by brokers and agents. Not being well understood, this new step has the possibility (perhaps even the likelihood) of igniting a fight. That fight might be necessary to have now, as the industry comes to terms with the consequences of NAR’s settlement.

At the heart of the issue is a simple question: Who owns the listing?

This used to be well-understood, and I believe most brokers today operate under the old understanding. I do not believe brokers today—even large and sophisticated brokerage firms—understand the change that has taken place, and will continue to be taking place as we go forward.

In fact, I do not believe that most MLS leaders understand the change that has taken place, and what the downstream foreseeable consequences of that change is.

Let’s get into it. As always, I am not your lawyer, and none of this is legal advice. Please consult your own attorney for actual advice. But do contact your attorney, especially if you are a brokerage company of any significance.