If you’re reading this blog, I’m guessing you’ve read about the latest skirmish in the portal wars. ListHub is cutting off Trulia (presumably due to a non-assignment clause or something similar in the Trulia-ListHub Agreement) and Zillow Group is seeking a temporary restraining order to keep the data flowing. Greg Robertson noted in an eloquent and apt blog post, as only he can, that the current situation is a “shit storm” and “shit sandwich.” Agreed.
Zillow has told us that they have to give ListHub 30 days notice to add another site to their network. Ok. Then we have a communication from ListHub that states, “[t]he Zillow Group has both the access and authority to power all their sites, now including trulia.” Um, OK? It seems like Zulia and ListHub should have a chat instead of rushing to court and making things frustrating for MLSs and brokers who are caught in the middle.
But in the midst of this latest manufactured crisis, one interesting aspect has been destroying my email inbox today: Zillow/Trulia is suggesting MLSs click through an agreement so Trulia may use MLS data Trulia has via an existing data feed provided to an IDX or back-office service provider that is/was a subsidiary of Trulia. Under what terms you ask? Fantastic question. Let’s break it down a bit.
What follows is not legal advice. I’m simply describing a contract (usually with the contract’s own terms). For advice specific to your organization’s circumstances, please contact an attorney.
What data feed is used?
By clicking “submit” you agree to the following license and you agree that Trulia may temporarily utilize IDX feeds licensed to Market Leader, Inc. to display listings for your members who have authorized display on Trulia. (emphasis added)
But then see:
Thank you for choosing to provide data, pictures, and other content about homes you have listed for sale, or for rent (‘Data’) to Trulia, a subsidiary of Zillow Group, Inc. (with all of its affiliates, ‘Trulia’) through one or more data feeds. (emphasis added)
What data is licensed?
How is the agreement executed?
How is the agreement terminated?
Via certified letter to Trulia.
Is there a perpetual license to data?
Yes, to some data.
This license is perpetual, but subject to termination as described in Section 4 below. After a listing terminates, Trulia will retain the corresponding Data and will provide you with attribution whenever displaying that Data on the Trulia website.
4… Trulia remove your Data, except that Trulia will retain a nonexclusive, royalty-free, perpetual license to use, copy, distribute, publicly display and perform, and create derivative works of Basic Data, only as permitted by this Agreement. After termination, paragraphs 2 [MLS warranties and indemnification] and 5 [choice of law/venue] will survive with respect to Data already provided to Trulia, and Trulia will retain ownership of derivative works created hereunder. Basic Data is defined in the Zillow Broker Listing Feeds Guide technical specification, available at www.zillowfeeds.com. (emphasis added)
How may the MLS suspend provision of data?
However, practically, I’m not sure how this occurs if data feeds are being used for a different purpose and it’s unclear which data feed is being used for which purpose. Generally, we’d suggest having separate data feeds for separate purposes.
Can the agreement change?
Trulia can amend it at will in its sole discretion.
Where can data be displayed?
How does opting-in/out happen?
The agreement is silent. Curt Beardsley confirmed via email that opting-out will occur via email.
What does the MLS promise?
Among other things:
(a) you have all rights necessary to grant Trulia the rights in paragraph 1 on behalf of yourself, the brokerage or property management company you represent, or if you are a listing data aggregator, the third parties whose data you aggregate and you are authorized to act on their behalf to provide the Data to Trulia for display; … (c) the Data complies with all applicable laws, ordinances, regulations, and licenses; … (f) the information provided below is accurate and complete.
We would normally suggest MLS clients to be careful about the warranties they provide when data licensing.
Does the MLS indemnify Trulia?
You further promise to indemnify and defend Trulia and its affiliates against all claims related to your Data, including breach of any warranty set forth above. If you discover any violation of the warranties above, you will immediately notify Trulia at firstname.lastname@example.org.
Does Trulia indemnify the MLS?
No. We would normally expect the portal to indemnify the MLS against third-party claims that the portal is infringing someone else’s patent rights.
What law governs and where are disputes litigated?
Washington; King County Washington. Not a very convenient venue for most MLSs.
What is the agreement missing?
Potentially many terms depending on each MLS or broker’s goals. Compare it to Zillow’s standard agreement, the REDPLAN CLA, the COVE list of terms to consider, or our firm’s list of terms to consider.
I also wonder:
- How many MLSs will click-through this agreement and forget about it?
- What data feed will Trulia actually use?
- Is this really better for MLSs and their participants than going manual entry or broker-direct feeds?
- Is the current syndication war going to benefit anyone other than the portals?
- What do major broker groups (e.g., The Realty Alliance) think about this? Should the MLS charge forward and set up direct feeds on the Zillow/Trulia’s timeline?
- What happens if some markets go dark? Is it worse for portals than it is for MLSs?
- Are we jumping past the initial question of whether to syndicate? (I realize many MLSs choose to syndicate, but there are also those that don’t, and they do not syndicate for their own good reasons relevant to their market and the wills of their leadership.)
Many questions, few answers, and the clock is ticking onward to complete doom! (Extreme sarcasm.) I genuinely don’t know if there are concrete answers to the above questions. Sound off below!
Thanks for reading!