We obtained a copy of the RPR MLS Content License Agreement (CLA) from an MLS client of our law firm on January 27. Our client provided a copy and said we could review it and blog about it but did not give permission to post the actual agreement. (The document is a PDF file that embeds the name of the client.) The document is marked “Version 2010.01.22”. I expect this means RPR completed this draft on January 22. Note that RPR may be distributing different versions of the agreement to different MLSs. RPR has told us we cannot have an ‘official’ copy for our review, that we must get one from one of the MLSs. If you are not an MLS, you are on your own getting one for the time being. We’ll post one if we get permission.

I planned for this post to provide an overview and high-level assessment of the RPR MLS Content License Agreement (CLA). Subsequent posts would have looked at it in more detail and addressed brokers’ perspectives.

But frankly, I’m flummoxed. In this contract, RPR basically does not promise to do anything for the MLS or its subscribers in return for the MLS and brokers turning over one of their most valued possessions. Will RPR offer a separate contract where it promises to deliver all the fine things that Marty Frame and Dale Ross have been talking about for the last month? If this is all there will be, I can’t imagine any MLS signing it.

If you are curious what I’m talking about, read on.

The 5Ws

An overview of a contract should address the same things as a good news article – the 5Ws (and the H): Who, what, where, when, why, and how? Briefly, then, here they are for the RPR CLA.

Who: The parties are RPR and the MLS (referred to as “Provider” in the CLA). The CLA addresses services to be provided to three other classes of people/entities.

  • “Participant/Subscriber” means brokers, salespeople, and appraisers that are customers of the MLS.
  • “Authorized RPR User” refers to all Participants/Subscribers (whether or not they are REALTORS®) and to all REALTORS® (whether or not they are customers of this or any other MLS).
  • “RPR Customer” refers to those “who are not NAR Members and with whom RPR has contracted to provide the RPR Offerings.”

What: The central provision is a license from MLS to RPR for RPR to use the “Licensed Content,” which consists of all data relating to all listings (regardless of status) and membership roster information in the MLS. “Licensed Content” is not limited by time or to certain fields – under the agreement, RPR gets everything the MLS has.

With the Licensed Content, the CLA permits RPR to create “RPR Offerings,” defined as “those business products, services and/or applications created and developed by RPR using the Licensed Content.” The agreement provides examples of two types of products, RVMs and something called “Match & Append Products.” But these examples illustrate – they do not limit the products NAR can provide.

In short, RPR gets everything the MLS has and can largely create any kind of product it wants to with the MLS data. (There are some limitations on those uses detailed in the agreement, but they are not significant.)

One would imagine that the contract would then offer the MLS a host of useful things in return. But AMAZINGLY none of the following appears in the CLA:

  • There is no promise from RPR to provide the RPR system, the demo of which so many folks have been crowing about, or that MLS’s subscribers will be able to use the RPR system.
  • There is no promise from RPR to incorporate the MLS data into the RPR system, which would theoretically make both much more valuable.
  • There is no promise from RPR that MLSs subscribers will get public record data from RPR or that MLS will be able to access public records from RPR via an API.
  • There is no promise from RPR that active listings from your MLS will be visible on the RPR system to subscribers in other MLSs.

In short, the agreement promises nothing that RPR’s leaders have been touting as its value proposition for the last month. The agreement permits RPR to do all those things; frankly, that’s because it allows RPR to create almost any kind of product with the listing data. But it does not require RPR to do any of them.

The only thing RPR really promises in the agreement is NOT to do certain naughty things:

  • RPR will not compete with the MLS as a “multiple listing service,” a term defined in the CLA more broadly than in NAR policies. (The broader definition of “MLS” in this case is good for MLSs, but puzzling coming from an NAR subsidiary.)
  • RPR will not “challenge or take any action inconsistent with Provider’s rights” to the Licensed Content.
  • RPR will not provide products that would make it or MLS a credit reporting agency, subjecting them to the Fair Credit Reporting Act.
  • RPR will not use the MLS data to violate the law.
  • RPR will stop using the Licensed Content (mostly) when the agreement terminates.

Also amazingly, the agreement does not even acknowledge that listing brokers will have to consent to this use of their listing data. NAR General Counsel Laurie Janik confirmed at NAR annual meetings in San Diego that RPR is not one of the ‘core purposes’ of an MLS; consequently, NAR policy mandates that MLS must obtain listing broker consent before using the broker’s data in RPR. The CLA does not distinguish data content of brokers who have consented from data content of brokers who have not; the agreement requires MLS to license and provide it all.

Where:
There are some issues relating to geography, but they are largely trivial.

When:
The agreement has a term of one year from its execution by the MLS. It automatically renews for consecutive one-year periods unless either party gives notice at least 90 days before the expiration of the current period.

Why:
That’s a good question. See the next section.

How:
MLS must provide data to RPR via a RETS data feed, updated no less frequently than MLS updates the data feed for its other licensees.

Why?

OK, I’m tired – I’ve been traveling today – I’m reading this agreement for the third time, but my brain cells are dimming. Could I have missed something? I’m going over it one more time before I make the following assessment…. OK, back now.

I think it is fair to say that RPR does not promise to make, produce, or deliver any product or service whatsoever to the MLS, its subscribers, or to REALTORS® under this license agreement. In effect RPR is saying, “Let us use your data. In return, we promise not to do certain naughty things.”

That’s it.

Really.

How many times have folks come to MLSs asking for data and promising the world? Those promises may have been pie-in-the-sky, but at least there were promises. RPR promises nothing. Marty and Dale have articulated a variety of value propositions for MLSs to license their data to RPR, but none of them appears in the agreement. Why would any MLS agree to this?

I guess I’ll wait for comments. For myself, I’m too confused to speculate.

-Brian

Reader Interactions

Comments

  1. Since there's not any significantly detailed discussion of what the MLS and its subscribers gets in return, this contract is also missing key components of software/service agreements including but not limited to clauses describing uptime, system performance, MLS staff and end user support, enhancements process and costs (as in what will be provided free and what will cost brokers/agents

  2. @Matt: You make important points, and I'll elaborate on them:

    1. This agreement, even if it included RPR's promise to do something for the MLS/REALTORS, would need revisions.

    2. Just because this agreement is not workable does not mean that RPR's value proposition is wrong – in the case of the agreement, though, it's entirely absent.

    -B

  3. Wow, this is pretty shocking. Given all the time, energy and big bucks that have gone into the RPR effort to date, this can't possibly be an oversight, can it? The build up leading to the release of this license agreement has been bigger than the SuperBowl.

    Any speculation on the motivation from RPR on going this route? Are they buying time?

    Personally I'm not

  4. Hi Brian, you've hit on the topic about which we probably debated the most amongst ourselves: how specific the definition should be of the RPR Web site which is being provided for NAR members and, through each MLS, to non-Member Participants/Subscribers in a modified form.

    There were two ways to go with this: i) a narrow, detailed description of the RPR site as we have conceived it

  5. Marty, given that the list of naughties is the focus, would it be appropriate for an MLS to require that RPR promise never to charge REALTORS for any product from RPR that uses the MLS data? In other words, promise that everything RPR offers to REALTORS is free?

  6. Brian- Did you find a clause that allows the MLS to unilaterally cancel the contract (pull out) at any time? I seem to recall Marty stating this option during his presentation at the NYC Connect.

  7. Michael –

    RPR can't and won't promise that the derivative products will be free to REALTORS. LPS has a real estate division, that does plan on using the data at some point to create products for the real estate industry.

    And I think it's fair, actually, since LPS would have to do work to create those products. If they are value-add, then I see no problem with

  8. Hi Rob, that is incorrect, and LPS is not a factor in the response to this question. The bottom line is that NAR's members have already paid for RPR, and as such will receive it at no charge.

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