This is the poster child for why there needs to be real competition between MLSs for brokers to choose from. Not only is this tone deaf, it is flat out wrong and most likely illegal. This is total bullshit. They need to remove their PDAP section immediately. Sadly, the reality for brokerages to move to another MLS is that it is disruptive and time consuming, and can be a significant speed bump -- some MLSs view this as one of their "advantages".
Rob Im 100% with you. This is something association boards need to look at before they sell to a private entity in this instance (or dare I say private equity in the potential future)
I'm a little surprised that this is so alarming since the NAR has had a Chain of Ownership Chart and model agreements in place since about 2006 designed to ensure the MLS "owns" all the Intellectual Property uploaded to an MLS compiled database.
REcolorado agreement is a poorly written version of what the NAR has intended for MLS IP policy for years.
for those interested here is the chart and supporting agreement language recommendation from the NAR.
I can only disagree. The relevant section from the papers you've included is this:
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3. License to IDX Listings
Upon the receipt of a written request from Participant, in a form acceptable to MLS, and so long as Participant, the applicable Sales Licensee, and/or an applicable Vendor are not in default under this Agreement, the Rules and Regulations or any agreement with MLS, MLS will grant to Participant, the applicable Sales Licensee of Participant, or the applicable Vendor a license to the IDX Listings. The license will only be granted pursuant to a License Agreement. MLS has no obligation to grant a license to Participant, any Sales Licensee, or any Vendor which does not enter into a License Agreement. In addition to any applicable license fee payable by Participant, the Sales Licensee, and/or the Vendor, Participant shall pay to MLS all costs and expenses incurred by MLS in connection with any licenses and any services provided by MLS in connection with such licenses.
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There is an ocean of difference between IDX and PDAP. That isn't merely poorly written; it is poorly thought through.
Critically, IDX includes the listings of OTHER brokers, to which you have no rights. PDAP is only your own listings, to which you have every right as the owner.
Rob, I agree with your assessment relative to the PDAP.
What I am attempting, apparently not too clearly, point out is that the NAR and MLS have been demanding that IP content creators for a listing grant all rights to the MLS. They are then using IDX to make the IP available to unlicensed parties for a fee, without consideration to the IP creators.
The PDAP license requirement in this participant agreement is just a farther over reach to collect money.
The parts of a listing that the US Copyright Office consider Intellectual Property are the visual media — photographs, videography and 3D tours. The NAR and MLS have required a participant and subscriber to grant them all rights when uploading the listing.
The PDAP, as I understand it from your blog is a way for a brokerage to gain access to its listings once they are uploaded to the MLS. That the contract drafter of this Participant Agreement is asking for the brokerage/participant to sign a license agreement to gain access suggests that they are presuming that the entire complied database is IP owned by the MLS and that granting the brokerage/participant to it's portion of the compiled database licensable IP they own. Even though the MLS has created none of the IP — just compiling the database which the USCO does consider copyrightable as a compilation.
Bottomline, for me, the REcolorado agreement is just the latest example of the NAR and MLS attempt to usurp IP without recognizing its ownership and value to the owner.
My brokerage is in the metro Atlanta Georgia area. We have two overlapping and competing MLS so I am hopeful that both or at least one of them will not come up with such an idiotic plan as the one in Denver.
This is the poster child for why there needs to be real competition between MLSs for brokers to choose from. Not only is this tone deaf, it is flat out wrong and most likely illegal. This is total bullshit. They need to remove their PDAP section immediately. Sadly, the reality for brokerages to move to another MLS is that it is disruptive and time consuming, and can be a significant speed bump -- some MLSs view this as one of their "advantages".
Rob Im 100% with you. This is something association boards need to look at before they sell to a private entity in this instance (or dare I say private equity in the potential future)
I'm a little surprised that this is so alarming since the NAR has had a Chain of Ownership Chart and model agreements in place since about 2006 designed to ensure the MLS "owns" all the Intellectual Property uploaded to an MLS compiled database.
REcolorado agreement is a poorly written version of what the NAR has intended for MLS IP policy for years.
for those interested here is the chart and supporting agreement language recommendation from the NAR.
https://www.dropbox.com/scl/fi/5wuci1iu86vuj35d756tf/CHAIN-OF-OWNERSHIP-CHART-AND-AGREEMENTS.zip?rlkey=e2ib7j5aa06fx0hhlnjp81ftl&st=sipfyqah&dl=0
I can only disagree. The relevant section from the papers you've included is this:
--
3. License to IDX Listings
Upon the receipt of a written request from Participant, in a form acceptable to MLS, and so long as Participant, the applicable Sales Licensee, and/or an applicable Vendor are not in default under this Agreement, the Rules and Regulations or any agreement with MLS, MLS will grant to Participant, the applicable Sales Licensee of Participant, or the applicable Vendor a license to the IDX Listings. The license will only be granted pursuant to a License Agreement. MLS has no obligation to grant a license to Participant, any Sales Licensee, or any Vendor which does not enter into a License Agreement. In addition to any applicable license fee payable by Participant, the Sales Licensee, and/or the Vendor, Participant shall pay to MLS all costs and expenses incurred by MLS in connection with any licenses and any services provided by MLS in connection with such licenses.
--
There is an ocean of difference between IDX and PDAP. That isn't merely poorly written; it is poorly thought through.
Critically, IDX includes the listings of OTHER brokers, to which you have no rights. PDAP is only your own listings, to which you have every right as the owner.
Rob, I agree with your assessment relative to the PDAP.
What I am attempting, apparently not too clearly, point out is that the NAR and MLS have been demanding that IP content creators for a listing grant all rights to the MLS. They are then using IDX to make the IP available to unlicensed parties for a fee, without consideration to the IP creators.
The PDAP license requirement in this participant agreement is just a farther over reach to collect money.
The parts of a listing that the US Copyright Office consider Intellectual Property are the visual media — photographs, videography and 3D tours. The NAR and MLS have required a participant and subscriber to grant them all rights when uploading the listing.
The PDAP, as I understand it from your blog is a way for a brokerage to gain access to its listings once they are uploaded to the MLS. That the contract drafter of this Participant Agreement is asking for the brokerage/participant to sign a license agreement to gain access suggests that they are presuming that the entire complied database is IP owned by the MLS and that granting the brokerage/participant to it's portion of the compiled database licensable IP they own. Even though the MLS has created none of the IP — just compiling the database which the USCO does consider copyrightable as a compilation.
Bottomline, for me, the REcolorado agreement is just the latest example of the NAR and MLS attempt to usurp IP without recognizing its ownership and value to the owner.
Is it possible this is an uneducated blunder by a company that's new to the MLS world?
I suppose. We will see if they revise this Agreement shortly. If they do, it's a blunder. If they don't, it is not.
My brokerage is in the metro Atlanta Georgia area. We have two overlapping and competing MLS so I am hopeful that both or at least one of them will not come up with such an idiotic plan as the one in Denver.