Unfortunately for many companies that would like to provide technology services directly to working Realtors, the trouble and expense of doing even a simple thing such as adding the agent's own listing to his or her Web site can be a challenge.

For example, rules governing the chain of title concerning listings can vary from state-to-state, although it is generally accepted that once a seller signs a brokerage contract with a broker, the broker owns the listing. The broker owns his or her agents' listings because the agents are agents of the broker. If the broker owns the listing, then it is the broker who licenses the listing to the MLS, who in turn, can license the listing to such entities as Realtor.com.

In short, even though the agent generated the listing, the agent doesn't own it, and in many cases doesn't have the right to republish MLS-copyrighted listings outside the confines of the broker, MLS and its partners.

But tell that to the broker's agents who are trying to market their listings in other ways besides what the broker has offered or approved. In a world where brokers are abdicating fiduciary responsibility to clients through non-agency, and paying agents 100 percent commissions in exchange for office rents and little or no oversight, it's not surprising to learn that the chain of title to listings gets muddy once the listings are published online.

One Website vendor, a la mode, inc., would like to see the broker own the online listing while allowing listing agents full leeway to market their own listings. That way, MLSs and their partners like Realtor.com, could simply incorporate permission language in their licensing agreements to make it easier for agents to give their listings to third-party vendors.

While this would be good for a la mode, inc., it wouldn't benefit Realtor.com, and it could also inadvertently benefit others who don't have any rights to the listings – such as third-party lead generators or competing agents who would like to use the listings without permission to get business. Carte blanche by agents to access and publish their own listings from the MLS database could open up these security issues and more.

For example, technology tools employed by most MLSs concentrate on protecting listings from being scraped by online lead generators who would sell the listings' leads back to the agents or competitors who may use the listings to attract consumers without permission.

It's an issue with many grey areas, suggests a la mode, inc. CEO David Biggers, who says that many brokers don't realize that companies like Realtor.com copyright their listings.

"It's not who owns the data, but why don't we know who owns the data?" says Biggers. "In the case of confusion, the broker must own the data, but if the broker chooses to give up the ownership, they should know that they did."

That's why a la mode, inc. got into trouble with Realtor.com. A la mode, inc. had offered their Realtor clients a way to keep from rekeying their listings into their "Agent XSite" Websites by importing data from Realtor.com, via the MLS listing number. The agent would then have the opportunity to "edit" the Realtor.com listing on his or her a la mode Agent XSite Website quickly and easily.

Unlike a la mode. Inc., Realtor.com and its parent Homestore saw this "convenience" as a black and white case of copyright infringement.

Homestore slapped a la mode, inc with a "Cease and Desist" order, to which a la mode, inc. immediately complied. Biggers sent out a defiant letter to his customers accusing Homestore of the following:

"According to them (Homestore,) THEY own your listing. They claim it's copyrighted by THEM and that your usage of it is copyright infringement and a "trespass" against their system. They've demanded that we remove your XSite's access to your own listing effective immediately.

We're just as surprised as you are. It appears that REALTOR.com doesn't realize that they're simply an advertising medium. Other media outlets don't get to lay claim to your listings data. Can you imagine the uproar in your local board's membership if you placed an ad for a property in your local newspaper, and then later re-used that ad in another medium or your own website, and the newspaper told you they were going to sue you because they now own the verbiage, photos, and other content in your ad? That's exactly what Homestore is doing with your listings….

But this isn't about just a feature, or XSites, or a la mode. There's a huge issue at stake here related to the role of the agent and broker and the profession at large.

The core issue of giving up legal rights to your listing to one of your advertising partners is one which we believe needs to be raised - and stopped - at every board meeting across the country.

At those meetings, find out if you've given away rights to your listing data to your board's MLS. Find out if your MLS's upload to REALTOR.com gives your rights away, either again or for the first time. Ask why REALTOR.com isn't just like the local newspaper, with no ownership of your advertisement. And then demand that you retain, or regain, those rights.

If we can help you in these processes in any way whatsoever, never hesitate to contact us, or me personally. You aren't viewed as "competition" by us - you're why we're here. We only wish Homestore viewed you the same way.

Homestore Executive VP Corporate Development Group Allan Merrill, says, "We never said we owned the listing. What they (a la mode, inc.) are trying to do is get agents to pressure the MLSs to give third-parties like themselves more rights. That's an economic concern of theirs that has nothing to do with Realtor.com. The basic point of all this is that Realtor.com licenses the data from the MLS and those agreements prevent us from doing anything with the data. Third parties can' t use the data. Nobody can scrap Realtor.com. If they want to get the data, they can simply go to the broker or the MLS. Period. End of story.

"Realtor.com is not set up to be an end-around on industry practices," Merrill continues, "and that's really simple. They have characterized this as massive rights to the data, we have narrow rights to publish the data, and we aren't keeping agents from using their data."

So why is the issue of who can publish the listing online so hard to understand?

Homestore counsel Mike Douglas says, "I don't know what a la mode's intentions are, but from our perspective we have contractual obligations. They aren't being treated specially, and we routinely send companies like them 'Cease and Desist" letters. We don't have the right to allow them to scrap the data, and usually the company will realize it is inappropriate, but in this case there is a broader agenda. I think ultimately there is a need to have a resolution, between a la mode and the people who are providing the data to us."

Merrill says he's sick of watching Realtor.com be used as the whipping boy by companies like a la mode, inc. when they can't work within the broker -MLS licensing system.

"That's not Homestore's data," says Merrill. "We have had discussions that have gone back and forth, and they complied, having an offensive strategy. They have chosen to misinterpret what we said painting us as having ownership of agents' data. Our behavior is beyond approach to protect the interests of our content relationships. This is not Realtor.com profiteering or us trying to take advantage of agents. It is us protecting our industry partners.

"The chain of title that the listing goes through - whether it is the broker's and who they provide it to, and then there are the agreements between the MLSs and all we can do is provide an agreement with the MLSs, and if they want us to give exceptions that would be interesting, but those rights don't exist today," says Merrill.

Published: September 22, 2004

Use of this article without permission is a violation of federal copyright laws.

Blanche is a renowned author of five real estate books. Her newest, Bubbles, Booms and Busts: Make Money In Any Real Estate Market, McGraw-Hill, was rave-reviewed by The New York Times. She was also selected from hundreds of real estate experts to contribute to Donald Trump's book, Trump: The Best Real Estate Advice I Ever Received: 100 Top Experts Share Their Strategies, Rutledge Hill Press, and is featured on page 68. Order Now Review - Honors In 2006, Blanche was selected among scores of candidates to author two consumer real estate guidebooks for the National Association of Realtors: The NAR Guide to Home Buying, and The NAR Guide to Home Selling, Wiley & Sons. She is currently planning two new books for the NAR and its members.       Known for her keen insight into real estate industry issues and for her ability to make complex subjects easy to understand, Blanche is a sought-after keynote and continuing education speaker. Real estate organizations from MLSs, to brokerages, to franchisors, to associations hire her to provide up-to-the-minute analysis of real estate industry news and advice on how to improve revenues. Her passionate delivery, peppered with stinging wit, is a huge hit with audiences and fans. Don Klein, CEO Greater Nashville Association of Realtors, Blanche Evans, Richard Courtney, president 2007, GRAR "The GNAR membership meeting last week featured Blanche Evans as the keynote speaker. Her comments and insights resonated extremely well with those in attendance and we have had many requests for copies of her PowerPoint Presentation. She was a terrific part of the membership meeting and convention program!" - Don Klein, CEO Greater Nashville Association of Realtors Coverage from WSMV, Nashville - 8-14-2007 That Interview Guy - Get Inside The Head Of Today's Generation 2007 AE Institute Session - To purchase 2006 AE Institute Session - Parts 1 2 3 4 5 6 7 8 9 HouseValues Mastermind call - Parts 1 2 Blanche's fireside chat with Jeremy Conaway, HAR - Click here. For more articles by Blanche, click here.