Digital Millennium Copyright Act (“DMCA”)

Common MLS Issue Listing Agent uploads infringing photo –Examples All members republish photo on IDX sites Copyright holder sends a demand letter to innocent member Innocent member calls and yells at MLS MLS Rules hold listing firm accountable and listing firm may end up paying thousands in damages

What is the DMCA?

You Be Illin’

DMCA U.S. Copyright Law Exemption from direct and indirect liability for “internet service providers” Case law - definition of internet service provider encompasses a broad variety of internet activities Safe harbor for “user generated content”

Internet Service Providers Internet Service Provider (i.e. Real Estate Firm) shielded from liability if: –Register with the copyright office and designate an agent to receive “takedown notices”; –Post DMCA notice and their designated agent’s contact information on website; and –Promptly remove infringing material at the request of the lawful copyright holder.

Registering with the Copyright Office $105 filing fee – covers one name Additional $35 for group of 10 names MLS with 2,300 member firms –Members registering individually = $241,500 –MLS registers as agent for all members = $8,155 Register member firm name (not each website) –Each website, even agent sites, contain member firm name

How it works Copyright holder finds infringing photo on member website –Copyright trolls – crawl the web for photos DMCA notice posted on website –MLS is registered agent Copyright holder contacts MLS MLS removes photo from MLS database and IDX/VOW feed and contacts listing firm Everyone is happy (except the trolls)

Practical Considerations Contact Copyright Office –Prefer very specific format Inform members and IDX/VOW vendors –Create DMCA notice (consult with attorney) –Prepare simple communication to members/vendors –Need DMCA notice on member/agent websites Rule? IDX Policy? –Provide HTML version to members/vendors –Audit for compliance

Ongoing Issues for MLS Checking account/fax number –Promptly address any takedown notice –Lots of spam Updating member lists –New/old members – periodic updates –Work with Copyright Office Only “user-generated” content is protected Need full participation Dealing with odd issues

The contents of this slide have been removed due to a DMCA take down notice

Five Takeaways Discuss with attorney Raise issue with Board of Directors Calculate costs (and cost savings for members) Implementation plan –Work with Copyright Office –Communication with members/vendors Ongoing maintenance plan –Assign staff to monitor fax and audit sites –Schedule periodic updates to member lists