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.
Yesterday the Upstream team, in partnership with RE Technology, conducted a webinar that focused on vendor integration. We had over 450 registrants and had over an hour of questions and answers! If you missed the session, here is the recording as well as the Powerpoint presentation.
If you are a vendor and ready to integrate with Upstream, click here to sign up.
I’m sure you’ve seen in the press that Upstream has launched. So what? What does that mean to me?
It means you have access to one of the most instantly valuable broker platforms in the country. It’s your data. It’s one of your brokerages most valuable assets. And your data is critical to your current and future business.
That’s why every vendor and portal wants it
Learn how pioneering brokerages across the country are both streamlining and protecting their business with Upstream. Sign up to receive specific information about the benefits to your brokerage, how you can participate, and how your brokerage might be affected.
Bottom-line, there’s been a lot of noise and misinformation being peddled about Upstream. Most of it focused on listings and simple syndication. But Upstream empowers you far beyond traditional listing management.
You might be saying, “I can already do this in my MLS today!” And in some locations, you can. But how are you handling:
It took a cooperative of brokerages to build Upstream, and it’s the only platform managed by you and your peers… practicing brokers. Click here to get the guide. There’s no obligation.
Wait… I take that back. You have an obligation. It’s to your firm and your agents. Savvy brokerages representing over 150K agents have already signed up for Upstream because they want better control of their future. Click here to learn more. Understanding your options costs nothing.
P.S. One final item you should know. We’re rolling out 5-6 MLSs per month. We are prioritizing our MLS list based on broker demand so sign up now to ensure your MLS isn’t at the back of the line.
We seek to create efficiencies by reducing redundant entry, help brokers distribute deliberately by giving them control over who can access their data and inspire innovation by removing artificial barriers when the broker allows.