Upstream Comments on Fair Input Guidelines

An op-ed by Alex Lange, President, and CEO of UpstreamRE, LLC

On September 7, 2018 Inman News published an opinion piece by attorney Mitch Skinner about the merits of a set of proposed “Fair Input Guidelines” (“Guidelines”) for MLSs to consider and possibly adopt that would govern how MLS participants could utilize “alternative input and maintenance” (“AIM”) systems to upload listing and other content to the MLS’ databases.  Examples of AIM systems mentioned include UpstreamRE, and Zillow’s Bridge product.  The term could also apply to CoreLogic’s Trestle product. 

I would like to thank Mitch for disseminating these suggested guidelines.  The MLS community should establish a set of standard policies and practices to guide MLS participants who will utilize AIM systems to enhance their control over their listing and other proprietary business data.   There are, however, aspects of the guidelines inconsistent with the functionality Upstream is offering to its users. 

Upstream is a user-controlled database where participants can upload, edit, and direct the distribution of their listing content and other business data.  Much like “cloud computing” service providers (Google Drive), and MLSs themselves, Upstream does not control the quantity, quality, or intellectual property ownership of the content that its users upload to the system.  It isn’t practical or even appropriate for Upstream to verify whether a participants’ content complies with third-party license agreements applicable to the MLS participants or the vendors to which the Upstream users direct their content.   What that suggests is similar to you putting money in your bank account, and the bank is responsible for proving you have all the agreements in place with any vendor you decide to leverage bill pay.   That particular agreement is between you and the vendor… not the bank.  “Please upload your Comcast agreement so we can have someone review it to determine if we will allow you to pay them via Bill-Pay.”  This is an extreme example using something as highly regulated as a bank and the transfer of money, and it’s still inappropriate.   

In its template agreements with its users, Upstream expressly disclaims any responsibility for the intellectual property ownership, possible infringement, or regulatory compliance of the content the participants upload to the Upstream system.  With a potential base of hundreds of thousands of users uploading millions of property records to the Upstream system, it is simply impossible to expect Upstream to verify whether a user’s specific content complies with agreements or policies between a user and third parties. 

There are plenty of brokerages that enter their data into an MLS via feeds (not direct input) and multiples more who control syndication to third-parties instead of leveraging their MLS.  Will an MLS be held to the same standard?  “Dear broker (typically one of the largest in that market), please verify that you have all the appropriate business and compliance agreements in place to every vendor you distribute your data.”    

Yet, the “guidelines” impose this obligation on operators of AIM systems.  For example, the guidelines provide under Intellectual Property Rights: “A participant’s AIM system must obtain from subscribers and third parties (like photographers) any necessary licenses or assignments, or it must confirm to MLS that the participant has acquired the licenses or assignments by other means.”  It is impractical and presumptive for the operator of an AIM system, such as Upstream, to obtain licenses or assignments of licenses from third parties of intellectual property rights in content maintained by users in an AIM system database.  Again, the agreement is between the broker and the vendor; not Upstream. Imagine if you signed up for G-Suite and they made you prove you were sharing data with your accountant in a “compliant” fashion if you decide to share it using Google Drive.   If the MLS requires such licenses or assignments, the duty to secure them should be on the MLS, or their members via their participation agreements, not the AIM system provider.  

The guidelines additionally impose under “Compliance with MLS Business Rules” that “Any AIM system must implement the business rules and policies that MLS adopts and are binding on participants. MLS will provide these rules to participants, subscribers and their third-party partners subject to a license agreement.”    Again, this guideline suggests that the AIM system provider conforms the participant’s data to the MLS’ rules.  Upstream is a user-controlled database. Upstream doesn’t manage the data, the brokers do.   I’m President and CEO of UpstreamRE, and I have no access to the production environment or data by design.   We can implement interface options that influence “best practice” behavior, but Upstream like every MLS serves at the pleasure of its members.  

There are other examples, such as those covering seller authorization to withhold a listing, etc.  They fall under the same rubric where the enforcement of obtaining such documents are between the broker and the MLS and/or vendor and not the data platform (Upstream, Google Drive, etc.).

In summary, it is prudent for the MLS community to adopt policies governing MLS participants’ use of AIM systems to transmit content to MLS databases.  Such policies should address technology interfaces between the AIM and MLS databases.  But compliance with MLS rules and intellectual property rights or assignments should be, as is the case today, strictly matters between the MLSs and their participants.