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.
Trulia reserves the right to change these terms at any time by posting the revised terms to this website.
Where can data be displayed?
…web sites and other properties owned or operated by Trulia or its authorized licensees.
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!
Saul Klein says
Good points and questions Mitch. No MLS should be rushed into making a decision solely out of expediency. Consumers have plenty of other places to find what is for sale, and REALTORS have plenty of other places to spend their advertising dollars.
Ann Cummings says
I agree Saul. Perhaps this “crisis” is just the opportunity needed to allow agents and brokers to take back control of their listings and intellectual property rights instead of giving away the store as we’ve done over the last few years, allowing aggregators to make oodles of money off our listings in a variety of ways. Prospective buyers found what they needed on-line well before these types of companies set up shop, and I’m betting they’ll find it again without these companies.
I sure hope all the MLS services out there will really think long and hard about all of this before making their decisions. Make the best decisions for their customers – the agents and brokers who belong to those services, not the aggregators and all the other companies out there all looking to get the data feeds.
Trudy VanHorn says
I feel that NAR should have come up with a site that customers can use like Zillow & Trulia before. NAR was not on the cutting edge. Now I do feel we should take back the data we have collected & created. I heard rumor that Trulia has applied for a Real Estate license can they be denied?
Mike Bentson says
Trulia already owns Realestate.com which is licensed brokerage in many states.
Paul Stusiak says
Well said and a nice segue into a plea to review your data agreements and to educate your constituency about data, agreements and their impact on both your business and their business.
What a great time to review them and to make sure that the agreements match what you think they do for your company, association or membership. Syndication isn’t the only place that your data goes and scattershot marketing doesn’t help you, the seller or buyer.
As Mitch so eloquently outlines through example, you may be on the wrong side of these agreements. You are the data provider. The receiver should be agreeing to your terms not the opposite.
As well, data agreements are only one facet of the marketing equation. You also need to consider policy around Internet marketing and privacy concerns between yourself (MLS, Broker, Agent) and the Seller and the Buyer. Clicking through an agreement may be hazardous to your business health.
I’m particularly focused on the risks related to images and these are quite complex and can be very expensive. Indemnifying a third party needs some careful consideration.
Mark Bergman says
Well stated Mitch and good comments. This is an opportunity for MLS leaders to engage in an open dialog with REALTORS. It is clearly not a time to rush to make a decisions based on a few loud voices and a panic that they must fill a perceived gap. It is also a good time for these leaders to refresh their understanding of the mission or purpose of the MLS; facilitating cooperation among brokers. The word “consumer” or the words “leveling the playing field” have no relevance.
The tail is wagging the dog! This is why data agreements are so important. Trulia has “access” to the data through other services, but with good agreements they cannot use for their syndication purposes. As we scramble to provide the best choices for our members, we should not make hasty decisions that diminish the value or increase the cost exponentially. You are correct, this is a manufactured crisis!
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