The following is not intended to be legal advice and only describes legal concepts in generalized terms with assumptions about the MLS industry. If you have specific questions regarding your organization, please contact an attorney.
Copyright infringement is a strict liability cause of action. That is, the mental state of the infringer does not matter. Infringers can be liable for copyright infringement even if they do not have intent to infringe – or even if they don’t know they are infringing – or even if they think they have the right to use the copyrighted work! (Note, however, that the mental state of an infringer may become important when calculating damages.)
Infringement of a copyrighted work can occur in several ways. Copyright owners have a bundle of exclusive rights for their works – they have the right to reproduce the work, create derivative works, distribute the work, and publicly perform the work. If a third party exercises any of a copyright owner’s exclusive rights without the owner’s permission, they are likely infringing the copyright. (Of course this is not black and white. For example, fair use may be a proper defense for the would-be infringers use of the work. Unfortunately, fair use is hotly contested, with most rights owners having an overly narrow view of it, and most laypeople having an overly broad view of it.)
- Agent A uses a copyrighted photo in a listing without proper permission (e.g., a license).
- The MLS copies and distributes the listing to other subscribers, including Broker B. Broker B then displays the infringing photo on its IDX website.
- Agent A, Broker B, and the MLS (as well as theoretically any other participant with an IDX website) have now potentially violated the copyright .
What are brokers, agents, and MLSs to do? As I noted in a previous post, having clean ‘copyright hygiene’ is very useful for helping protect the MLS’s copyright. It is also useful for limiting the MLS’s, subscribers’, and participants’ liability for copyright infringement as described above. Clean ‘copyright hygiene’ is achieved through implementation of proper participant, subscriber, third party data access, and participant data access agreements. Also, MLS rules need to be clear that participants and subscribers will put only content that they have the right to use into the MLS System.The agreements help MLSs clarify the relationship between the MLS, Agent A, and Broker B in the above scenario (as well as all of the other participants and subscribers). The MLS can require that Agent A give a warranty that it has permission to use items it uploads to the MLS, establish limitations of liability to cap damages, and (most importantly) require Agent A and his/her brokerage to indemnify the MLS, subscribers, and participants for Agent A’s infringing use of third party copyrighted works. With the relationship between the MLS, brokers, and agents clarified, the somewhat strange effects of strict liability copyright infringement causes of action can be limited.