Michael Wurzer Some great discussion is happening in various forums around the topic of MLS data licenses, and how MLSs can best serve the industry. Some of that discussion is happening on Facebook, and I deleted my account there awhile ago, so I only hear about that indirectly and can’t link to it. Other discussion is happening on Sam DeBord’s blog and Rob Hahn posted a video as well as some content behind a paywall. And all this discussion is getting a lot more attention thanks to the podcast Greg Robertson recorded with me and Sam. I’m really appreciative of all the contributions and promotion of this important topic.
I have more to say about a variety of topics, but I wanted to write this post just to respond to some of the commentary linked above, including the Facebook discussion. The point made in the Facebook discussion is a valid one, that LEAP is not the vehicle for implementing or discussing license terms. I couldn’t agree with that statement more and so I wanted to clarify that I’m not in any way advocating that the NAR or CMLS or any other entity, through LEAP or any other policy, prescribe license terms.
To the contrary, my main point in my earlier post is that LEAP is problematic because it literally prevents MLSs from crafting individual license terms. LEAP proposes such a restriction by declaring unequivocally: “MLSs may not impose any limitations, restrictions or conditions on the use or display of the MLS listing content other than as specified in this policy.” I suggested instead that LEAP should make clear that MLSs are free to license the MLS content as each sees fit with language such as this:
LEAP recognizes that the MLS data is uniquely valuable for a variety of uses by Participants and that MLSs should create license terms to reflect and protect that value. Nothing in LEAP should be interpreted to prevent MLSs from creating or requiring licensing terms or agreements specific to each use case. Instead, LEAP simply requires that such terms be presented in a single agreement to simplify the licensing process.
Such a change would free MLSs to structure and negotiate license agreements independently, which will greatly reduce any antitrust or other concerns that national MLS policy at the NAR level might raise.
Turning to Rob’s video, he makes the point that licensing of MLS data perhaps is best accomplished through syndication by individual broker decisions in place of IDX. At a surface level, I agree with this suggestion, which is very similar to what I wrote back in 2011 in a post entitled “The focus for IDX should be the license agreement, not MLS policy.” But, this suggestion really just begs the question of what are the license terms for such syndication and who creates and negotiates such license terms?
In the end, creating and negotiating such license terms is the job of the MLS and only the MLS can do this because the MLS owns the compilation. This is true as a legal matter and also a practical matter. Individual brokers and agents do not have the time, resources, or desire to review let alone negotiate license terms for every use of MLS data. That’s why brokers and agents belong to an MLS and so it’s the MLS’s job to do this for the benefit of all members.
Turning to Sam’s blog post, he makes the point that brokers are fed up with all the different requirements from different MLSs and LEAP is intended to resolve some of those differences. He further makes the point that, even if MLSs should negotiate more value for licensing MLS content, a policy like LEAP shouldn’t have to wait for that. Again, my concern with LEAP is not in its goal of making the process more efficient, my problem is that it throws the baby out with the bathwater with a blanket restriction on MLSs creating their own license terms.
If you’ve read this far, what likely is clear is that there’s a conflict here: How can MLSs have the freedom to create and negotiate the best terms while also not creating a mishmash of different license terms at a national level or running afoul of antitrust or other legal concerns? Put differently, how can MLSs work together to streamline licensing while retaining independence in decision-making? I have some ideas for this that I’m still thinking through, but let me just close this post by saying that addressing this topic is where I’d like to see LEAP focus. The language I suggested above is a start, and the next question is how can that language also accommodate some common terms to streamline the process for those acquiring and using data?
Resolving these concerns is not easy and will require work. My advocacy here primarily is for industry leaders to do that work. We need to dig into the details and the nuances and lay the groundwork for the years ahead. The MLS content is the lifeblood of this industry and so it is worth the effort, to preserve it, recognize the value, and create opportunities for MLSs to improve the content, platform, and competition in the future. As CMLS likes to say, MLSs make the market work. That’s a tall task but one I’m confident the industry is up to solving.