Okay, if Disney, Microsoft, and musicians have intellectual property rights, why not brokers? When did MLS data that was once private become public?

Answer: It never happened.

Today's technology makes it easy to grab someone else's content. But the fact that mis-use is easy doesn't make it right.

MLS data is sometimes seen as a collection of facts, just like a phone book. And it happens that the Supreme Court, in the Feist decision, ruled that one cannot copyright listings such as those found in the telephone white pages.

"To qualify for copyright protection, a work must be original to the author," said the court.

"Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice."

And, added the Court, "the vast majority of works make the grade quite easily, as they possess some creative spark, Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying."

But isn't an MLS an obvious listing arrangement, just like a telephone directory?

In 1995, in Montgomery County Association of Realtors, Inc. v. Realty Photo Master Corp., this precise question arose. In this case, a court ruled that a Maryland MLS database could be copyrighted. Why? Because an MLS has several unique components including the way data is arranged and the use of a complex system of abbreviations.

The Montgomery County case is interesting for two reasons. First, the decision was issued after Feist. Second, the Montgomery County decision is routinely held up by those claiming copyright protection. For instance, in its "proposed conclusions of law" regarding the anti-trust case in which it is now involved, Microsoft cited the Montgomery County decision to bolster its copyright claims.

Given this background, it should come as absolutely no surprise that a Florida judge has just ruled that MLS data is intellectual property and that it has value.

In Realtor Association of Greater Ft. Lauderdale v Property America Corporation, the judge noted that the Association held a registered copyright for its MLS database (strong evidence, said the court, of the copyright's validity) and that the unauthorized use of MLS data could actually or potentially impair the work's value.

How can brokers and their MLS systems protect their data? Several strategies seem clear:

1. Work with an attorney to determine your rights.

2. Copyright MLS data in a formal registration with the U.S. Copyright Office.

3. Seek injunctions and damages against those who purposefully and willfully pirate data, and who refuse to stop such actions once asked.

4. Salt listings. This is a common practice in the mailing list industry -- a list is rented for a single use and within the list are several names which go back directly to the list owner. If the list owner gets more than one mailing, the mailer then gets a second bill -- or gets sued.

5. Mark property and personal photos with searchable "intelligent indicia." Such symbols, which are similar to bar codes, provide a quick way to identify with certainty who owns what.

In the future, just as today, there will be continuing efforts to separate brokers from their property without compensation or control. But as always, the bottom line will remain the bottom line: the broker's data belongs to the broker.

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Question Of The Week

Q Are there property tax reductions available to older citizens in most jurisdictions?

A Some areas offer a break to those 65 and older. For details, and to see what's available in your community, contact your local property tax office.

Also, ask about a new concept, deferred payment plans. In this situation, it may be possible to postpone property taxes by turning them into a lien against the property. The idea is to reduce the cash costs from property taxes for those 65 and older -- and then to recapture the taxes when the property is sold.

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