Editor's note: In this Realty Times exclusive, editor Blanche Evans interviews Diane Kennedy, president of the Austin Board of Realtors and learns why the board feels it owns the rights to the listing database. After e-Realty won an injunction against the Austin Board of Realtors, allowing the online discount broker continued access to the Austin board's MLS listings, the board agreed to mediate, But its president is only bowed, not broken. "Federal Judge James Nowlin granted a preliminary injunction to e-Realty.com after hearing arguments from both the Austin Board of Realtors (ABOR) and eRealty.com. Judge Nowlin’s decision to grant the preliminary injunction allows eRealty.com to temporarily continue posting the Multiple Listing Service (MLS) information owned by the ABOR on the e-Realty website," said Austin board President Diane Kennedy in a prepared statement. “While we don’t agree with the decision, we understand it as a matter of process," she continues. "Judge Nowlin was presented with several complicated legal issues, and his decision to preserve the status quo and allow the court the opportunity to hear and decide on these complex issues was cautious and prudent. We are optimistic as we move forward, and we will be ready if necessary to present our very strong case to a court of law. At the end of the day, we are confident we will prevail." B.E.: Russell Capper, e-Realty's president told me that he presented his business plan to the board of directors before his company was allowed to join the Austin Board of Realtors. You knew the company was going to be an online customer-rebate broker, didn't you? D.K.: We don't go through an approval process. A broker is not required to present us with a business plan, and we have a set of rules and regulations and e-Realty decided that their business model fit those rules and regulations. When we realized that e-Realty and others did not read our rules the way we intended, we made a revision of the rules. The revision is what they have issue with. B.E.: What did the original rules say? D.K.: The original rules said that a compilation of MLS data could not be distributed to the public by any member by any means. They (e-Realty) have coined a phrase for what they are doing (an intranet,) and that gets around the rules. They say the site is password-protected because they request the consumer to be a buyer for their company. Anyone can click yes with very little obligation or responsibility. B.E.: So anybody can get on. D.K.: It isn't difficult. You don't have to have a signed brokerage agreement to access the listings. B.E.: Do you share your listings with any commercial outlets? D.K.: We have licensing agreements with Realtor.com and Austin Classifieds; those are business arrangements. They aren't using the information to compete against other members. No other members are allowed to post listings. B.E.: Why aren't they? D.K.: We felt that this data is compiled by the Austin Board of Realtors according to the brokers who own this data. They joined the organization because of the rules and they want to work with each other; they are cooperative competitors. They feel the rules are important and they have all agreed to play on a level playing field. This is a controversial subject for any dotcom company. Once that information is decimated, a control issues occurs. As an association, we can no longer protect the data if it is on multiple web sites, and we have no control where it goes. That is an issue for us and for our sellers. B.E.: Has the board ever taken a vote of the members over whether they would like to put listings on their sites? D.K.: We have not had a vote of the membership. Our board takes guidance from the members, and the directors make the rules based on member input. B.E.: How did you feel about the judge's ruling to allow e-Realty continued access to the listings? D.K.: It was a complex issues, and that everyone needed time to study the complexity. We all understand that protection of the data on the Internet is a complex issue. It was too complex to make a decision, so he chose to maintain a status quo while we study this further. B.E.: Are both sides willing to mediate? D.K.: We have already offered a compromise solution which they denied, and we hope to find other compromise positions. B.E.: What was that? D.K.: We offered them the same thing the other members do which is to link to the board's site. B.E.: You have a public site? If the information is already public, what's the difference? D.K.: They don't put all the listing information which is in there. B.E.: You mean they are altering the listings in some way? D.K.: They are not changing any information. Their reason for not wanting to link is they have crafted a site that makes a consumer feel they are getting information they wouldn't get from any other site. They get the people to be their buyers and they don't want to give up that customer by linking to another site. The customer never knows that the same information is available from the other 4,300 members of the association. B.E.: If the other members have the same access, then I just don't get it. D.K.: The difference is we know who is accessing the web site. The difference is we have control. When e-Realty takes it , we don't have control. Our brokers turn the MLS data over to us, we compile it for their use. It would be the same as any database being taken and used for someone else's profit. B.E.: But you just said that the other association members can do the same thing. D.K.: No. They (e-Realty) are using the association's product to bring customers to their store because they have no product. B.E.: I'm confused. D.K.: When people pay to access the MLS we make that data available. They have the right to use the data among the Realtors. We have limits on how they can use the data. They can not put the information out for their own uses. If they join the service, we don't give them the right to use the data as they will. This is copyrighted data and ABOR owns it. One member can not use the information contrary to rules and regulations. Our rules adequately covered this area. Our rules have always prohibited this type of activity. B.E.: Do you feel you own the data? D.K.: We own the data. We have the right to dictate how the data will be used. At our Austin board site, it is public but it is not used to attract buyers. It is not used for a specific company to create a buyer agency situation. It is for the benefit of all 4,300 members to pay to put it together, for the benefit of the consumer so they have the kind of information to make good buying decisions. It is not for the benefit of any one member. B.E.: How is e-Realty getting the information? D.K.: They are copying and pasting to the site, and they don't want to link. B.E.: What change to the data is e-Realty making? D.K. We don't really know. That is what bothers us. That is the root of the problem, that if 4,300 members decide to do this, there are severe security issues. That is why it is important that there is one portal for this information. We think it is so important. It is a challenge. The issues are complex and everybody understands what is at stake, If you ever expect to be a buyer and seller of real estate it affects you greatly. B.E.: So you don't know for certain that e-Realty is changing the data... D.K.: They are going to say they aren't changing the data, they are simply bringing people to the site, and they are bona fide buyers before they give access to this information. Our problem with this is that an ex-con or a ten-year-old, or anybody can agree to be a bona fide buyer on the Internet. Traditional real estate has a long way to go and we are working to incorporate the Internet, but there are some things that face to face work a little better. We aren't afraid of new technologies but we feel there are some security issues that can not be addressed on the Internet.