Let's face it: when there are lawsuits involving the real estate industry, the real estate profession is usually to be found on the defendant side of things. If for no other reason than that, it is newsworthy to report that a multi-million dollar lawsuit has recently been filed by the California Association of REALTORS®(CAR) against a large internet firm.
The suit, California Association of REALTORS® v. PDFfiller et al. was filed in the U.S. District Court in Massachusetts on June 2, 2016. It is a civil action seeking damages and injunctive relief for copyright infringement, trademark infringement, violations of the Digital Millennium Copyright Act, and violations of the Massachusetts Consumer Protection Act. The suit was brought in Massachusetts because that is where the defendants are located.
PDFfiller is a company that maintains on its website (pdffiller.com) a very large library of forms that a subscriber can pull up and fill out in a pdf. format. Many of the forms maintained by the company are forms used by public agencies such as the IRS. Many are generic in nature. As described, so far so good. The website makes available to the public a useful, time-saving service.
It is not so good, however, if the forms being provided are copyrighted, and no license or permission has been given to use them. This is the core of the CAR lawsuit. It alleges that the PDFfiller website has "maintained a massive document database containing at least 64 separate copyrighted works owned by CAR", and that it has reproduced and sold them without permission.
Now, someone might initially react by asking, "Seriously? You are going to file a lawsuit over that? How much damage could they have caused? Why not just send a cease-and-desist letter and get on with life?"
Well, as to the cease-and-desist letters, the suit does say, "Defendants have received written notice from C.A.R. to cease and desist from further sale and use of all documents bearing C.A.R.'s copyright notices and C.A.R.'s trademarks, and have failed to remove the Infringed Works and the Infringed Trademarks and have otherwise failed to substantively respond to C.A.R.'s demand and notice."
As to the damages: To be sure, the damages in such a situation probably cannot ever be calculated with 100% accuracy. But I think all would agree that they have a lot to do with the number of times the copyrighted material has been illicitly sold. In this regard the company may have engaged in practices that will have harmed it more than helped. Again, we cite from the suit:
"Defendants in fact market their product and services by boasting, on the linked landing pages on the PDFfiller Website, of the number of times its users have downloaded a particular work, and providing a running total. As an example, a true and correct copy of the PDFfiller Website page as of May 23, 2016, reflecting the linked landing page for the search result "car form rpa ca" stating that the ‘California Residential Purchase Agreement and Joint Escrow Instructions' work has been filled out 89,471 times,is attached as Exhibit C." [my emphasis]
The suit does not cite a specific damage figure, but it does assert that there would be statutory damages in excess of $9 million.
For Realtor®members, this story offers both good news and a word of caution. The former is that the member benefit (forms) that we pay for and that many of us have worked hard to provide is not taken lightly by association leadership. If the allegations are true, companies like PDFfiller are stealing from us, and it will not be tolerated.
The word of caution is the flip side of that coin. Don't be providing copies of our copyrighted forms for use by non-members. The "favor" you would do for them is an offense against your fellow members. It could come back to bite you.