A Foundation for IDX Policy Is Critical

Nov 5, 2011  |  Michael Wurzer

I wrote a few days ago about IDX policy once again being a hot topic at the upcoming NAR meetings in Anaheim next week.  Furthering the discussion, CMLS President Merri Jo Cowen sent a letter (PDF) to the NAR’s MLS Issues and Policies Committee urging, among other things:

  • Treating social media sites separately from other participant web sites (leaving the existing IDX policy alone); and
  • Prohibiting use of IDX data in RSS feeds.

Basically, with respect to these two issues, CMLS’s position appears to be that the IDX policy is working, so please leave well enough alone.  Perhaps following a rumor that the Realty Alliance brokers are planning to form their own MLS, CMLS also warns that, with regard to allowing IDX on social media sites, “Some MLSs fear a mass exodus by brokers if they are offered only the all inclusive IDX- Yes or No choice.”

I completely agree with CMLS’s primary point that the stakes are high here and messing with a successful program like IDX is dangerous business.  As Jay Thompson said last summer at Inman SF, without IDX he is likely out of business as a broker and I suspect many other brokers feel the same way.  Yet, several of these thorny issues continue to dog the IDX policy, because the world just keeps on changing and that leaves questions about what the current policy means.

In this case, everyone is wondering whether “participant’s web site” in the IDX policy includes the broker’s branding page on  Facebook, Twitter or other social media web sites and whether the accepted practice of providing updates via email can be extended to RSS under the current policy.  Unfortunately, the current policy just isn’t clear on these issues, likely because these technologies hadn’t yet been applied to IDX when the current policy language was drafted.

One of the primary points I want to make with this post is that I don’t see RSS or even the social media issue as a big deal. FBS doesn’t provide RSS updates with our IDX solution (largely because of this controversy) and I certainly don’t think the world will end if RSS is not allowed for IDX.  Frankly, this issue may well be a tempest in a teapot and evidence of how slow the IDX policy discussion is, because many argue that RSS as a consumer technology is dead.

Leaving the irony of this aside, the main point here is that the industry needs IDX (as Jay Thompson so well said) and the industry needs an approach to IDX that responds to technological innovations without so much angst.  Importantly, this is not a debate of those “for” innovation and those “against”.  Proof of this is that there is no debate about whether IDX data should be allowed for use in mobile applications, even those that most definitely are not “web sites” as defined under the current IDX policy.  In other words, everyone understands that mobile applications are critical today, and so no one is debating this issue, even though there many mobile applications allow for sharing on Facebook, Twitter, etc.  Oh, goodness, do you see the tangled webs we weave when we don’t have a firm foundation or understanding of what we’re doing with IDX that allows for change?

As I suggested in my previous post on this topic, I believe the solution here is to focus more on the terms of the license agreements being accepted under IDX, all the way from the MLS, through the broker and agent, and to the consumer.  Central to those license agreements is the condition that the data only be used by consumers for their personal home buying and selling research, which I understand as the core purpose for IDX.  In other words, IDX does not allow others to re-purpose the data for any reason, even if they are just providing it to consumers.  There are no middle-men allowed here (like franchises), the last license relationship is direct from the broker and agent to the consumer and the consumer can only use the data for their own personal research.

This is directly relevant to the RSS issue, which CMLS (quoting MLSListings CEO Jim Harrison) and others have argued is risky because:

RSS technology opens the door for savvy users or websites to essentially export any IDX data; aggregate, store, and manipulate that data without any consent from the broker or MLS. In the hands of technology providers unaccountable to IDX data policies, the persons or entities receiving the data have no obligation to present or use the content in a manner defined by the policies. Without this agreement, the MLS cannot assert any governance or corrections. Any abuse or other use will have to be suffered in silence.

I’m confused by this argument, because I know there are web sites that provide RSS updates with license agreements clearly required.

A very prominent example is the New York Times, which has an entire page dedicated to the many RSS feeds they offer.  Prominently displayed at the end of that page are the terms and conditions for use of the Times’ RSS feeds:

This is very similar to what many IDX sites also do.  For example, here’s the disclaimer/terms text from an MLSListings IDX site:

The listing information marked with Internet Data Exchange icon (a stylized house inside a circle) comes in part from the Internet Data Exchange program of the MLSListings(TM) MLS.

The broker providing this data believes the data to be correct, but advises interested parties to confirm all information before relying on it for a purchase decision.

The information being provided is for consumers’ personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.
© 2011 MLSListings. All rights reserved.

This is a good statement but I would love to see a link to a more detailed Terms of Use agreement, like the one provided by the Times, which has much clearer language about the terms being binding on the consumer, the right of the Times to discontinue providing the service, non-allowed uses, display requirements, and much more.  (The need for this agreement for the broker-agent/consumer relationship is made all the more obvious by the recent acquisition of IDX vendor Diverse Solutions by Zillow.)

I do not provide the above example from the New York Times in defense of allowing IDX updates to consumers via RSS, because, as I mentioned, RSS in itself is a relatively minor issue.  Instead, I provide the above example as a demonstration of the proper foundation for licensing data for consumer use on the web today.  (Notice, too, how the Times only provides limited info in their RSS feed, which I’ve also argued is a good idea for certain IDX purposes.)  This approach provides the MLS, brokers, agents and consumers (all the parties to the IDX relationship) with a clear understanding of what is being licensed (allowed) and what isn’t.  As I asked in my last post, if agreements like these are firmly established for every use of IDX data, would broker’s object?  Don’t these agreements, regardless of the technological medium, protect everyone and serve the fundamental purpose of IDX?

As Brian Larson has pointed out, “the license agreement is . . . only the first step, but it is an essential one.”  Subsequent steps, of course, are enforcement of the terms of the license agreement.  With regard to enforcement and compliance, the most important thing is to have a strong program to discover and shut down un-licensed uses of the data.

Looking out for the “bad hats” who steal data is an easier (not easy, but easier) task than monitoring thousands upon thousands of IDX web sites out there.  Instead of worrying about those individual sites, spend money on looking for the bad hats and make sure your agents and brokers know that if a bad hat is found to have been ripping off their IDX web site, the broker or agent will be in violation of their license agreement, their feed will be terminated, and will be liable for the violation under the terms of their license.  As I said in my last post, this approach “reduces the need for compliance by MLSs, focuses compliance where it should be on brokers and agents deploying the data, and creates a mechanism and incentive for everyone to amp up their compliance game, while also allowing for technological innovation without heartache and endless PAGs every few years.”

The stakes are high here, people.  We need to direct this conversation away from these specific technology issues like RSS and social networks that are impossible to predict, can be so easily misunderstood by policy makers, and ultimately are less important than the fundamental purpose of IDX, which is to allow brokers and agents to provide listing information to consumers for their personal use.  I fear that the way the current discussion over RSS and social networks has heated up and become confused, we’re just creating more controversy that will result in brokers becoming divided and decide opting out is best.  And perhaps they’ll not just opt out of IDX but also opt out of the MLS altogether.

To avoid this, we need to work very hard and together to frame this discussion properly and establish a foundation for IDX policy that is more able to respond to technological and other (e.g., Zillow acquiring Diverse) changes.  I hope the above is helpful to that discussion and look forward to hearing your feedback.

 


P.S. Another thing that confused me about the CMLS letter was the point made about RESO/RETS dictating transport for IDX: “As NAR has provided policy that requires MLS’s to adhere to the latest specification of RETS, the standard as published by RESO should be relied upon to frame data transport mechanisms, not the IDX policy.” RETS outlines one possible transport among many for use by RETS servers and clients. This standard has and should have little or nothing to do with IDX policy. Sure, many IDX vendors get data from MLSs via RETS servers, but the web sites they provide to agents and, in turn, consumers, do not use RETS as a transport, they use the web. Similarly, as I’ve pointed out many times, there seems to be little controversy over the fact that nearly every IDX web site allows updates via email, which is not a RETS-specified transport, either. Further yet, if we limited transport to those provided in the RETS specification, most mobile apps likely would have to be shut down, because RETS does not make for a good transport for mobile development. Anyway, this is kind of an aside, as I suspect it was intended in the CMLS letter, but I’m hopeful the above clarifies the distinction between RETS specifications and IDX policy.

2 Responses to “A Foundation for IDX Policy Is Critical”

  1. Bob Bemis says:

    Michael,

    Thank you for that incisive essay. I disagree with a couple of points you make early on, but you came to the same conclusion that I and the IDX PAG (upon which I was pleased to be asked to serve) came to: that we need to establish a foundation for IDX policy that is able to respond to technology changes that we have yet to see and which are impossible to predict.

    Contrary to your conclusion at the beginning, in reading the CMLS letter I do not interpret their questions as urging the MLS Policy Committee to leave current IDX policy alone and treat social media under a separate (yet to be created) policy. CMLS asks some very important questions about how to interpret the proposed policy changes and to what extent the MLS has responsibility for monitoring and enforcing the policy. They do voice a concern, expressed by some, about brokers who oppose allowing their listings to be displayed on sites other than traditional participant and agent owned and operated websites opting to leave the IDX program altogether if the current policy proposal is adopted. Indeed, the IDX PAG considered this possibility, and with representatives from large brokerages, independent broker networks, and large franchisors in the room and participating in the discussion came to the conclusion that expanding the current IDX policy was preferable to creating new policies every time a new technology for displaying listings became apparent. But neither the IDX PAG nor CMLS advocates separating the two policies. In fact, later in the CMLS letter they point out a major omission in the policy – a clear definition of “Control of the Display” – and will be submitting (perhaps as soon as later today, Monday 11/7) a proposed definition of this topic to hopefully fill that void to everyone’s satisfaction.

    I agree with you that we should focus on “the fundamental purpose of IDX, which is to allow brokers and agents to provide listing information to consumers for their personal use,” and not be sidetracked from that quest by a barrage of hypothetical questions posed by parties who have not been in the trenches dealing with the issues and proposing solutions. If the MLS Issues and Policy Committee once again does not take action to codify in policy reasonable guidelines that agents can follow, but instead postpones a difficult decision and appoints yet another workgroup to study it some more, we might as well just give up trying to regulate listing display beyond a broker/agent website. To do so ignores the realities of today’s electronic marketplace. Consumers want information delivered through their channels of choice. Agents are ready, able and willing to serve the consumer needs through these channels, and in fact are doing so even in the absence of rules, regulations, or guidance from the MLS. The proposed policy changes acknowledge this reality and establish a basis from which future technologies can develop without the need to revisit the rules every year or two.

    I hope the Committee sees the wisdom in this approach and passes the policy recommendations as presented, and then works to refine them by developing answers to the peripheral questions CMLS and others pose. Once we have a base to work from, MLSs can begin to develop programs to monitor and guide their subscribers in the use of the policy and the IDX program to continue doing what IDX was designed to do – give REALTORS® a vehicle with which to serve the consuming public. That’s what it’s all about.

    Bob Bemis, CEO
    Arizona Regional MLS

  2. Michael Wurzer says:

    Bob, thanks for commenting.

    In defining control, I suggest the test is whether the broker or agent requires and is able to enforce a proper terms of use for access to and use of the IDX data. If so, they have control. If not, they don’t.

    In my view, IDX policy becomes much easier when it is framed in terms of the three license agreements I outlined in my earlier post.

    More specifically, the major missing component in IDX policy today (and in the proposed revisions) is any provision requiring that the broker or agent implement and take measures to enforce a proper terms of use with their visitors. The only provision addressing terms of use at all is optional MLS provision 10, which provides that MLSs may “require participants to indicate on their websites and in any other IDX display that the information being provided is for consumers’ personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.”

    This provision should be mandatory and it should be front and center in the policy. Frankly, it’s really all that is required.

    The rest of the policy should be contained in the other two license agreements I mentioned between the broker providing the data to the MLS and between the MLS and the broker or agent receiving IDX data. These license agreements should make clear the broker or agent’s obligation to provide and enforce a proper terms of use to data recipients (consumers), and the MLS should be party in interest to enable them to enforce that agreement. Liquidated damages and equitable relief also are important.

    Though it won’t eliminate the MLS’s compliance burden, this combination of provisions should shift the burden for compliance more toward the broker and agent, which, for all practical purposes, is where compliance should be and, at the same time, will provide the MLS weapons to enforce the terms when it becomes necessary. Today, the MLS is relatively powerless to rectify damage done and are mostly relegated to terminating the feed to prevent future damage.

    The bottom line is that, if these three license agreements are in place and enforcement actions are real, brokers should be much more comfortable with new technologies because they will know that the data license remains restricted to consumer use. If these three agreements are not in place and not enforced, then the MLS is left with an unrealistic compliance issue and brokers are right to be concerned about how their data is being used.

    As Jim Harrison pointed out, “[a]ny abuse or other use will have to be suffered in silence.” The irony is that this is the case right now, even before the policy amendments being proposed are considered.