Listing Syndication: The Fine Print!

After CMLS, there was a groundswell of discussion about the rights brokers are giving up when they send their listings to third party websites. WAV Group went to school on the terms and conditions of several of the leading third-party websites. We were specifically focused on the rights to display, distribute and maintain listing data.

We learned that in some cases the broker is transferring the irrevocable, perpetual, non-exclusive, fully paid, royalty-free license to use, retain, transmit, copy, create derivative work of, sell, or distribute the broker’s listing data to other parties or sub-licensees. Bottomline, brokers are giving away rights to their listings they may not be aware of.

We also learned that all third-party listing sites are NOT created equal. WAV Group has researched this issue and produced a white paper on the topic that has been designed to help brokers ask the right questions before they syndicate their listings.

Click here to download

Executive Summary

In the past several years, many real estate professionals have begun to send their listings to third-party sites to increase exposure and expand the potential audience for purchasing their listings. Many agents and brokers now send their listings to multiple websites. They are being asked and even demanded by their real estate customers to do so.

While these activities can be very valuable in creating new business opportunities for REALTORS®, it is important to understand what third parties can do with your listing information once you send it to them. In some cases, real estate professionals may be giving away rights to their data they are not aware of. The goal of this research is to provide real estate listing agents, brokers, and multiple listings services (MLSs) with a brief overview of the terms that apply to syndicating listing data over the Internet. We believe that any person who plans to syndicate listings over the Internet should carefully review the Terms of Use for any site that will be displaying their listing information. The principal concern in reviewing the terms is to understand what rights you retain over your information.

Indefinite use of Data

The Terms of Use of some sites contain some very specific language that indicates that the content you send includes the irrevocable, perpetual, non-exclusive, fully paid, royalty-free license to use, retain, transmit, copy, create derivative work of, and sell or distribute your data to other parties or sub-licensees. That means they can keep your listing data and contact data and use it as they like for as long as they like. These broad Terms of Use may be of some concern to some brokers.

Copyright Protection

One principal right that is lost or shared when you distribute your listings to websites involves copyright. At a minimum, brokers and agents are assuring the recipient websites that you are not submitting any information, which is subject to any other person’s copyright protection. Only REALTOR.com®, AOL, Threewide, and Point2 indicate that listing content remains the intellectual property of the contributor (agent, broker or MLS). With some – Trulia, VAST, Postlets -- you are transferring significant rights to the third party.

Indemnification

Another principal right that is being transferred when listings are distributed is that the agent, broker or MLS distributing the data to the third party requires you indemnify them from any claims as a result of displaying the data. In some cases you are assuming the Terms and Conditions of Third Party Listing Sites Review responsibility to ensure data is accurate and up to date. This can be very difficult, if not impossible, to maintain for sites that do not remove expired listings automatically.

“Resyndication”

Some sites (Trulia, Postlets, VAST) control who and where your listings are distributed. The broker has no written rights or recourse should one of these companies choose to repurpose the data in a way that is disagreeable once the listing has been submitted. They can send listing data to third parties they have agreements with -- without consent from you. Sometimes we hear agents complaining they have seen their listing in a place they did not send it. This can happens when a company you have sent your listing to decides to “resyndicate” it.

Staying current can be difficult...

Finally, those who are syndicating listing information should pay close attention to the governance of changing the Terms of Use or Termination of the relationship. Many sites may change their Terms of Use by posting new terms to their website without ever notifying the listing contributor. With some sites, the Terms of Use survive even after the relationship with the website company has been terminated.

In summary, there may be risks that agents and brokers who syndicate their listings are unknowingly exposing themselves to beyond the rights they think for their content. While additional distribution may be appealing, it is every agent and broker’s obligation to understand the potential negative impacts of syndication. We encourage careful reading of the Terms and Conditions for any website agents and brokers are considering entering into a syndication relationship.

All Third-Party Listing Sites are NOT Created Equal

In addition, brokers and agents are exposed to a host of practical, competitive, disadvantages and brand risks based on the terms of many syndicators. In our review, REALTOR.com’s® Terms and Conditions provided the greatest amount of protections to broker data and may represent a model for brokers wishing to negotiate Terms of Use. REALTOR.com® also included some other protections. They prohibit a competitor’s advertisement from appearing next to another broker’s listing details. They also will not allow offensive or inappropriate content to appear next to a listing. Lastly, REALTOR.com® displays both the buyer's representative and seller’s representative on the listing when they display sold data. Zillow, for example, displays the seller’s representatives and none of the other syndicators display sold listings.

Top 10 Questions to Ask Before Syndicating your Listings

Since listing syndication is becoming a very important part of marketing listings online, there are several questions that can help clarify the rights granted to a third-party listing site with participation. Here are a few questions that can be used to begin the dialog:

1. What rights, benefits or protections do I lose by posting my listings on the site?
2. What ability do I have to control distribution of my listings or listing data?
3. What happens to my listing information when the listing expires or the property is sold? What about if I stop syndicating my information to the site?
4. If the site receives multiple entries for the same listing from different parties (MLS, agent, broker, franchise, third-party listing site), which one gets priority over the others and why?
5. Does the site receive or send my listings/listing data to/from a primary or secondary source? If so, which ones? What control do I have over the display/ownership of my listings on the secondary source?
6. What are the rules/terms for updating/maintaining listings and listing data on the site? What is the process for updating listings – how easy is it to reach customer service to update an error or required change in the database?
7. What rules/terms are in place to guard the listings from being “scraped” and from being sent to other places?
8. If the site is reporting sales, do the rules/terms require the site to give the broker for the buyer and seller side credit?
9. Do the site’s rules/terms restrict the type of content that can be placed in ads near listings and prohibit inappropriate topics (e.g., political, sexual, alcohol, tobacco and firearms)?
10. Do the site’s rules/terms guarantee there will not be competitive ads next to my listings?

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