Net Neutrality is Over: What Now?

For years, the National Association of Realtors® (NAR) and a broad coalition of technology and real estate industry partners have urged the FCC to uphold the former rules under which Internet Service Providers (ISPs) operate and can do business. “Net neutrality” is the previous consensus position, meaning that internet service providers can’t speed up, slow down or block any websites or applications.

That consensus shifted sharply on December 14th, as the FCC released a plan to repeal provisions ensuring net neutrality and allow ISPs to begin deciding what type of content and sites their customers may access on their service.

Currently, the internet is fairly egalitarian; if you have a connection, a computer or mobile device, and a browser, you can go to whatever website you like. The agreement you’ve entered into with your ISP states that they can’t dictate where you decide to look for news, what recipe websites you’re allowed to access, or, more relevant to Realtors®, where you might look to find your next home. Right now you’re allowed to begin your search wherever you like, and follow it wherever it takes you. You’re just as likely to land on the website of a small local Realtor® office as on a major listing aggregation site like Realtor.com, Zillow or RedFin. You let your wish list, location and other criteria guide your search, and your browser takes you wherever they lead, regardless of the size of the company who’s got the listing.

The loss of net neutrality has the potential to change that experience in profound ways.

Have you ever watched a sports talk show and said to yourself, “These guys are idiots, I could do a way better job than they could!” Now, you may or may not be right about your sports-talk potential, but the way the internet is currently regulated, you have many opportunities to prove it. You could start a blog, a podcast, write analysis for a small sports site, post your thoughts on Twitter or Facebook, or get yourself a nice webcam and post them on YouTube, seated behind a desk wearing a tie, just like the pros.

If you’re good enough and your content is relevant, you can succeed. Countless people in myriad professions and specialties do it every day, and they do it on the strength of a neutral platform, where their thoughts and ideas are just as accessible (just click a link!) as those produced by major media companies with huge advertising budgets and institutional power.

If you think of the internet as if it were cable TV (something you’re likely to get from the exact same company, by the way) right now, you get every channel imaginable for the same rate. You decide what you see. But what if your internet options looked like this?

Image shows internet price packages after repeal of net neutrality
Image via Reddit

This is the future. And in that future, large companies who have the ability to pay will dominate the landscape online, as they do in most other media.  Small and large players in the real estate industry could be affected if internet service providers such as Comcast and Verizon create fast and slow lanes of web traffic based on financial arrangements they’ve made with content providers. The mom-and-pop Realtor® office that has the perfect home listed for you (or your next client) might not be able to pay enough for you to see it. Your office’s ISP may decide the MLS vendor you use is not paying enough, and slow their traffic to a crawl. Or it may decide to make your competitor’s advertisements and website load much faster than yours, based on what they’re willing to pay. Under the new rules, there’s nothing stopping them.

Ninety-three percent of NAR members use the internet to conduct and promote business. NAR President Elizabeth Mendenhall said in a statement:

“Technology is an increasingly important part of the way our membership delivers its services, whether through streaming video, drone technology, or other applications. We remain concerned that a rollback of net-neutrality rules could lead to blocking, throttling, or discriminating against Internet traffic, or even ‘paid prioritization’ arrangements that put small mom-and-pop businesses at a disadvantage in the marketplace. We will continue working with the FCC to share these concerns and ensure a fair and open internet where everyone can succeed.”

It’s a new day on the internet. There is still time to ensure these changes are implemented fairly and responsibly. But a major barrier to those goals has fallen, and time will tell what the consequences are.

Pending Home Sales Jump in November as Prices Rise Again

Single-family pending home sales rose over 12 percent this month from November of last year, with prices rising over four percent. Pending condominium sales were also up, rising more than two percent over last year, while prices increased slightly. Realtors® confidence in the market was up almost 20 percent in November, while confidence in prices raised only slightly over last year.

November Pending Sales:

Single Family November 2017 November 2016 % Change
Sales 4,359 3,871 12.6%
Median Price $385,000 $369,000 4.3%
  • Pending sales up for 11 out of the last 12 months
Condominium November 2017 November 2016 % Change
Sales 1,895 1,854 2.2%
Median Price $349,000 $345,000 1.2%
  • Pending sales up for nine out of the last 12 months

Read more in the November 2017 Future Indicators Report.

Breaking: Governor Charlie Baker Rolls Out Plan to Boost Housing Across the State

Governor Charlie Baker announced a plan Monday to add more housing to the anemic Massachusetts market. The plan includes $10 million dollars in grants and incentives to municipalities that add housing quickly. He’ll also ask the legislature to make it easier for communities to change zoning rules that make it difficult to build certain types of housing.

“More housing is the best way to solve our ongoing inventory crisis,” said 2017 Massachusetts Association of Realtors® President Paul Yorkis, president of Patriot Real Estate in Medway. “We are glad that the Governor is making housing production a priority and we look forward to working with his administration to tackle this important issue.”

Read more in the Boston Globe.

The Digital Millennium Copyright Act and How it Affects Realtors®

Intellectual property protection

The Digital Millennium Copyright Act (DMCA) is a federal copyright law that enhances the penalties for copyright infringement occurring on the Internet. The law provides exemptions or “safe harbors” from copyright infringement liability for online service providers (OSP) that satisfy certain criteria. Courts construe the definition of “online service provider” broadly, which would likely include multiple listing services (MLS) as well as participants and subscribers hosting an IDX display.

In 2016, amendments were made to the DMCA that created an electronic registration system for naming a “designated agent.” It is important to note that brokerage firms and agents looking to claim–or maintain–the safe harbor protections established under the DMCA must electronically register their designated agent prior to December 31, 2017. After this day, all prior paper filings will be invalid and only those registrations made through the new online system will satisfy the Act’s requirement for registering a designated agent with the Copyright Office.

How does this affect me?

At this point you’re probably wondering in what scenario this would apply to you and your business. The most likely situation would be a listing photograph uploaded to the MLS that infringes someone’s copyright and then appears on your website through your IDX. Without taking advantage of the safe harbor protections, you may be liable for copyright infringement.

Previously, MLSs had named one individual as the designated agent not only for itself, but also on behalf of each of its participants. Under the new regulations, this is no longer permitted. Therefore, when each MLS completes its online registration, that will supersede and invalidate its existing paper registrations for both itself and its participants. MLSPIN will be completing its online designation on December 20, 2017, and therefore, it is strongly recommended its participants complete their registration prior to that date to ensure continuous protection.

How to protect yourself

The DMCA provides a “safe harbor” to service providers (website operators) who allow its users to post material on the site without modification. This applies to both your website and IDX platform. In order to benefit from the “safe harbor” exemptions, the following criteria must be satisfied:

  1. Designate a copyright agent
    • This must be done online at the U.S. Copyright Office website by December 31, 2017.
      • Even if you have previously registered an agent, you must reregister an agent through the online platform.
    • The copyright agent must be clearly identified with contact information on the website. For example, the National Association of Realtors® (NAR) includes this under their “Terms of Use.”
    • You must renew your registration of a copyright agent every three (3) years
    • The registration fee is nominal (currently $6 per designation).
  2. You must comply with the DMCA takedown procedure
    • If notified of infringing activity on your website, the infringing content must be removed expeditiously.
    • Takedown requests will be sent to the copyright agent.
  3. You must have no knowledge of the infringing activity
    • You cannot simply turn a “blind eye” to infringing activity.
    • You must be merely a conduit for a copyright infringer and not an active participant in its user’s copyright infringing activities.
  4. You may not receive any direct financial benefit from the infringing activity
    • The infringing activity constitutes a direct financial benefit to the website owner it the infringing content draws users to the site and is not simply an added benefit.
  5. You must have a policy for repeat infringers
    • Keep track of infringing users.
    • Have a policy on your website laying out your policy for repeat infringing users.
  6. Each service provider must have its own separate designation
    • Only a single agent may be designated for each service provider.

Failure to implement the above procedure may leave you vulnerable to significant sanctions if copyrighted content is posted to your website by a third-party. Each violation can result in a fine up to $150,000.

NAR has produced a video that explains the changes to the DMCA and tips for Realtors® to comply with the safe harbor provisions. NAR has also complied with the “safe harbor” requirements on its website and has generously offered to allow members to use their language as a template for their own websites.

Finally, please see the very helpful FAQ section the United States Copyright Office has prepared that will address additional questions you may have regarding this update.

Pending Home Sales See Another Bump in October as Prices Remain Near $400,000 Mark

Single-family pending home sales rose over two percent this month from October of last year, with prices rising close to five percent. Pending condominium sales were also up, rising more than two percent over last year, while prices increased slightly. Realtors® confidence in the market was up again in October, while confidence in prices dropped slightly over last year.

October Pending Sales:

Single Family October 2017 October 2016 % Change
Sales 5,181 5,055 2.5%
Median Price $395,900 $378,750 4.5%
  • Pending sales up for 11 out of the last 12 months
Condominium October 2017 October 2016 % Change
Sales 1,895 1,854 2.2%
Median Price $349,000 $345,000 1.2%
  • Pending sales up for nine out of the last 12 months

Realtor® Market and Price Confidence Indexes:

Confidence Index October 2017 October 2016 %Change
Market 72.24 70.18 2.95%
Price 67.86 68.86 -1.46%
  • The Realtor® Market Confidence Index up for the 29th time in 30 months
  • The Realtor® Price Confidence Index down for the fourth time in 12 months
  • Measured on a 100-point scale, a score of 50 is the midpoint between a “strong” (100 points) and a “weak” (0 points) market condition

Read more in the October 2017 Future Indicators Report.