If you have MLS listings on your site and your MLS hasn't authorized you to use the data, yours may be the next name on the federal court docket. The following case may decide the issue of whether brokers and agents should have the right to use their own and other's listings as content for their Web sites.

The Austin Board of Realtors® (ABoR) and its subsidiary, the Austin/Central Texas Realty Information Service (ACTRIS) has filed a lawsuit in federal court against e-Realty.com, charging the fledgling Internet broker with infringement of trademark law and has amended its complaint to include charging e-Realty with infringement of ABoR's copyright of its multiple listing service data.

The board says it initiated its suit in response to concerns by its members and has been in intense discussions with e-Realty and its attorneys. At issue is e-Realty's advertising that visitors can search the entire MLS for the Austin area, and that use of this data is allowed under MLS regulations. The board and MLS are concerned that the public will conclude that they have endorsed or sponsored e-Realty in some way, thereby giving unfair advantage to the site over other MLS members.

The suit will pursue unfair competition, issues of copyright, and false advertising. According to David M. Foster, executive vice president of ABoR, the organization had "no choice" but to seek legal recourse.

"e-Realty does not appear to be willing to comply with the MLS regulations it agreed to abide by when it joined ACTRIS," stated Foster. "We have more than 4,300 members, and for one broker to play by its own set of rules is unfair. Furthermore, we cannot allow one member to confuse the public by giving the false impression that we have approved this site."

e-Realty CEO Russell Capper says that the MLS rule against publishing listings was not in effect when e-Realty joined the Austin board. "First and foremost, I want to make it clear that we don't show MLS data to the public; we do show our own listings. Quite frankly, according to the terms of the MLS rules, it shouldn't all be displayed," he says.

Explains Capper, "When a real bona-fide buyer of real estate enters into an agency agreement with us, we then allow them into our private password-protected intranet. We then allow them to view listings on a limited basis restricted to their area of affordability and all of this is in conjunction with the board's terms and regulations until we were noticed on Feb. 11th of a new rule.

According to Capper, events went as follows. For a period of three months starting November 2, 1999, e-Realty displayed its concept and plan complete with password access and requested that the board tell them if they have any concerns about what the e-broker was doing. e-Realty also had experts review their terms and conditions. "All that was said was, "Welcome to the Austin Board of Realtors," says Capper.

On Jan 27, after e-Realty had determined that the board was okay with their business model, the board changed its rules. "We already had thousands of registered users and were showing and listing transactions," says Capper. "They added a new restriction which was hard to interpret."

Included in the language of the notice was the following damning sentence, "Participants or affiliated licensees may not utilize, display, distribute, or reproduce any MLS compilation or any portion thereof on any web site not approved by the Austin Board of Realtors."

Capper feels the new rule is aimed squarely at his company. "We feel we were misled and this is restraint of trade," he says.

Meanwhile, e-Realty has scheduled a temporary restraining order to allow it continued access to the MLS data. A court hearing is scheduled for March 21, 2000.

"We like to think of ourselves as innovative Realtors that are implementing technology solutions that the consumers want," says Capper. "What we do offer to buyers and sellers over the Internet is a true way to streamline a great portion of the process, and home hunting and looking at listings is only part of that process."

It could be the "streamlining" part that the other Realtors in Austin don't like. Did e-Realty's competitive plan cause complaints to the board? Austin, like Silicon Valley is a high-tech center, one of the two largest in Texas and one of the five largest in the U.S. Austin home sales are second only to Dallas/Fort Worth in volume. Not only does e-Realty's consumer-friendly interface give the company an edge with Austin's Internet-savvy consumers, the company adds insult to injury to its competitors by offering a one-percent rebate to sellers and buyers under contract.

This could be a case that decides whether the broker owns the listing or not, and whether the MLS should serve its members, or ....serve its members. The board does allow that the MLS has agreed to publish its data at Realtor.com and Austinclassifieds.com, but is that because the board receives compensation for doing so? Shouldn't it be as concerned with the ability of its members to market their services, including the intelligent display and handling of listings online?

In its analysis, the court stated, "The Court further finds that e-Realty has shown a probability of success on the merits and that granting the TRO will not result in greater damage to AboR. Additionally, the Court finds granting this TRO is in the public interest as the public has an interest in the development of e-commerce."

What do you think? Does the Austin board have a case? Is this the old guard real estate community against the new technology-empowered Realtors? Will what is in the public's best interest determine the outcome of the case? Post your interactive response to this story now.