What is a Listing?

I’ve been invited to speak at CMLS on the topic of what MLSs should do to help brokers make smart decisions about syndication.

The invitation is surprising for a couple of reasons:  I’m no longer in the MLS business nor do I work for a recipient of said broker syndication efforts and decisions.  Also, after I left Zillow I swore to myself (out loud this time) that I wouldn’t get involved in rehashing this old topic yet another time. I personally have attended multiple funerals for that dead horse (Cause of death:  multiple beatings) and do not look forward to waking another.

deadhorse1

But of course I accepted the invitation because I’m a glutton for punishment.  And lately some thoughts have occurred to me, more often now that I’m no longer under the influence (figuratively as well as literally speaking) of either of the two polar opposite positions in this debate – MLS gatekeeper or national real estate portal.

In an uncanny coincidence of timing, details of the long awaited SourceMLS™ branding initiative from the Council of Multiple Listing Services (www.cmls.org) was unofficially unveiled this past week through a posting by Victor Lund on the WAV Group blog. I say “unofficially” since there was no similar announcement on the CMLS or SourceMLS websites, but since Marilyn Wilson (the “W” in WAV) serves on the CMLS board I presume this post had CMLS blessing.

SourceMSourceMLS LogoLS has been over a year in the making and members have been receiving updates on its developmental progress since early in 2012.  SourceMLS was developed by MRED and Russ Bergeron and licensed to CMLS for their exclusive use with their membership and selected vendors. SourceMLS intends to identify listings and websites, either broker or third-party, who receive listing data directly from an MLS and who agree to treat that data according to the guidelines established by CMLS.  The intent, of course, is to rid the web of stale, outdated, old listings that are no longer active but appear to be so because the source of the listing hasn’t keep up with the recommended maintenance.

 

In comparing the WAV post, the CMLS Guidelines document, and the Trademark License, I found some significant differences and have multiple questions about which version is actually applicable.  But in trying to compare and contrast them for this post so I could properly relate the concern back to the applicable language that generated it, totally I confused myself.  So I’ll hold those questions for another time and another post.

Looking at the program in general, most of the provisions and requirements are pretty benign, but some of them seem to be designed specifically to get national websites to change not just their display practices but their core business practices.

One item which caught my eye was the provision that CMLS would have approval authority over any vendor who applied for licensure under the SourceMLS program. The language in the official guidelines document reads as follows:  “The Listing is displayed on or through a real estate information site or service that is reasonably acceptable to CMLS.”  (emphasis added)

While this may on its surface seem innocuous, it does offer CMLS literal veto power over any application that it feels is not in keeping with the high standards set by CMLS for listing display. Those standards are not identified or enumerated.  I’m sure CMLS will use this authority judiciously, but the fact that this provision is included in the guidelines and thus embodied in the license agreement by reference gives one pause to consider whether CMLS is either (a) overstepping the authority granted to it by the MLS or (b) creating an opportunity for arbitrary and capricious disapproval of any application by any website that CMLS feels is not acceptable but can’t find a specific rule that would justify denying the application.  Such an action may run afoul of regulations or even law since the protocols for such a review and decision have not yet been established.  Given the contemporary mood in MLS circles to want to “take back our data” this provision should raise questions in the halls of those non-broker websites who want to continue to use listing data from an MLS, but who must now conform to some unpublished standard of conduct to be “reasonably acceptable.”

The other interesting item is the requirement that states upon expiration or sale of a property the displaying website must remove that listing from the website (and potentially, or at least implied, from its database).  From the SourceMLS guidelines document:

If the Listing has been removed from active status, all listing content including but not limited to images, video and property descriptions have been removed from display within twenty four (24) hours of the Listing being removed from active status. If such Listing continues to be displayed, the listing broker name is displayed with the Listing.

(Let’s set aside for the moment the internal inconsistency between the first and second sentences of this paragraph.  In the first, one must remove the listing. In the second, if you can’t comply with the first – removing the listing – then show the broker’s name when you display it in contravention to the first sentence.  Huh?)

In order to comply with the requirement to remove the listing, it seems necessary to agree on a definition of what a listing is. We in the industry have used” listing” rather generically over the years to describe a property data record within the MLS database, as in the whine, “They’re taking our listings and selling us our own leads.”  In fact, a listing is technically a contract between the seller and the broker retained to sell that property. When a broker or agent says, “I have a new listing” she doesn’t mean I just created data record. She means I have a contract granting me new authority and responsibility to market this property for sale.  Yet we use “Listing” as it was used in the second sentence of the quoted text above:  “If such Listing continues to be displayed…” does not refer to the contract being displayed, but instead to the listing data record.

So what is it that’s to be removed when a listing comes down?  The price and pictures, and prose.  Three p’s.

What is a listing?

CMLS, and they’re not alone in this interpretation, sees “listing” as something physical, an object that can be passed from one person or site to another, perhaps something that can potentially be monetized because it has value (although the value is debatable and difficult to quantify, as Todd Carpenter noted recently).

But a listing record is not a singular object.  The listing record is composed of two essential elements:  the facts and the fiction.  Facts remain unaltered by virtue of a contract to sell a property.  CoreLogic has them.  Data Quick has them.  RED has them.  The facts include size, age, rooms, bath and bed count, property size, taxes, school district, nearly every physical description of the property.  The fiction, those parts made up by the broker and the seller to flesh out the offering of the property would include list price, agent’s remarks, and photos, perhaps virtual tours, special offers, bonus commission offering.  All are subject to change and updating without affecting the core elements of the property record.

So what does CMLS mean when they say remove the “listing content?” The intent of this provision is to require that a website no longer display data from the listing record that it received as part of its syndication feed. However, as has been noted in a couple of recent nationally prominent copyright lawsuits currently pending in various federal circuit courts, most of the information contained in an MLS data record is public knowledge, public information, or public records – facts, which are not copyrightable, rather than creative works which are.

What the agent adds in creating the listing record is minimal. Certainly there is a requirement to state that this property is for sale, and what status it is in.  There’s the list price, considered in some quarters to be the most copyrightable work of creative art in a listing record.  There’s some poetic narrative of original prose called Realtor Remarks (or Agent Remarks in those MLSs that allow non-Realtors to participate) which couldn’t be more worthless after a listing contract expires, so we shan’t waste any breath on its debate, now shan’t we?  And, of course, photographs.

On most national websites, nearly all of the data elements that are contained in what the industry perceives as a listing record are already maintained in a master database of property information. That database is populated with public records information AND with information about previous sales activity on that property – yes previous listings, from agents, brokers, or even homeowners who posted that data on the portal without the requirement to remove it when the house was no longer for sale.  So when a website receives a new listing record, much of the content in that record merely duplicates data elements that the website already has collected in its database.

When CMLS asks the website to remove the listing content when it is no longer on the market are they requiring that the website remove factual information that it had prior to receiving listing record? In discussing this with one MLS, with which I was negotiating a data license, the answer to that question was “If you got the information from the MLS, you must remove it.” But how can they prove that the bedroom count, the current taxes, and the lot size are all data fields that came from the MLS and not from public records?

Even with regard to photographs, some real estate websites combine photos from a separate data feed into the display of an active property listed for sale. These photos may be of higher resolution or more numerous and may be coming from a franchise or the agent herself.  They are offered because in many cases the MLS is not capable of storing and displaying extremely high-resolution photos, or restricts the number of photos it will distribute to syndicated websites under the delusion that a consumer will click over to the MLS or broker site to see the rest of the photos when in practice the consumer will just move on to the next property that has more photos. Often the outside-sourced photos are exactly the same picture, but sent in a hi-res format rather than the lo-res version the MLS vendor created to be able to store them efficiently.  So are those photos the portal received separately from the broker, not from the MLS, part of the “listing” or not? Indeed the mere act of substituting one set of photos for another may be in direct violation of another provision which prohibits the website from altering the listing data it receives from the MLS in order to qualify under the SourceMLS license.

Pictures and prose are part of the historical record and despite being removed from the active display they probably live somewhere in perpetuity on some archiving website like the Wayback machine.  Example from 1997: http://web.archive.org/web/19970102155412/http:/www.realtorads.com/

So back to the original question – what’s the meaning of “take down the listing?” It depends entirely on the definition of “listing.”  And even if we agree it means those portions of a property record that are original to and singularly associated with the listing contract in question, then taking down the list price (done anyway since the property is no longer for sale), any pictures that didn’t come directly from the MLS, and the Remarks should be sufficient.

So what’s the hubbub about?

I applaud the efforts of CMLS to address the ongoing issue of stale data and outdated listing displays.  It’s a formidable task, one that cannot be easily accomplished to the satisfaction of all quarters.  As with most new brainstorms, the devil is in the details. But I would encourage CMLS to examine the guidelines and license provisions that it has created for the SourceMLS program and make sure that they are (a) lucidly clear as to their definitions and intentions; (b) clearly understood and consistently explained to all parties to whom the SourceMLS program is being offered, and; (c) that the program is true to its mission of improving the quality of the data displayed on all websites and not subconsciously designed to undermine any particular website by making the rules of participation so onerous that no one will sign up.

I will be joining the CMLS panel at the upcoming conference in Boise, as planned.  I hope to see you there and hear your opinions on the SourceMLS™ project.

For this post:
Cause?  myomymyheadshurts
Effect?  Perhaps not the one intended