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.

Government Affairs Update – Second Quarter of 2017

Massachusetts State House - Freedom Trail Site - Boston, Massachusetts, USA

The second quarter of 2017 has been busy for MAR Government Affairs. After a slow start, the legislature briefly picked up the pace before closing out the quarter focused almost entirely on the issues of marijuana and the state budget.

ANNUAL BUDGET
The budgeting process for fiscal year 2018 drew the interest of Realtors® when the Senate included two concerning provisions in its annual budget. First, the Senate included a section that would have expanded the room occupancy tax that hotels charge guests, to the rental of private homes for less than 90 days. Under this proposal, homeowners would be required to comply with onerous business regulations and administrative burdens that were never intended for the average homeowner. A home is not a hotel and a homeowner who leases her cottage for a week or even a day would be required to abide by the requirements as detailed in the Senate proposal.

The Senate also included a provision that would have increased the Community Preservation Act surcharge on recording fees from $20 to $45 per document, resulting in an increase of hundreds of dollars. This would have further exacerbated the inequitable manner of funding the CPA with recording fee surcharges. In effect, purchasers of homes and other properties are paying to fund the CPA, which provides benefits to the entire community.

We are happy to report that, because of MAR’s advocacy on these issues, the budget compromise agreed to by the House and Senate does not contain either of these proposals. It is important to note, however, that both proposals still exist as separate legislation and are currently working their way through the legislative process.

ROOM OCCUPANCY
In addition to addressing the proposed room occupancy tax provision in the Senate budget, the Joint Committee on Financial Services also held three hearings on a different bill that would tax short term rentals at varying tax rates. Realtors® from across the Commonwealth testified at hearings in Lenox, Barnstable, and Boston on the impact that such a tax would have on homeowners who only occasionally rent their homes. This will continue to be a big issue as the legislature heads towards an August recess. Thank you to all of the Realtors® that showed up to testify at the hearings.

H.O.M.E. BILL HEARING
The legislature held two hearings on An Act improving housing opportunities and the Massachusetts economy, the H.O.M.E. Bill. President Paul Yorkis, MAR Legislative & Regulatory Counsel, Justin Davidson and representatives from the Greater Boston Real Estate Board testified first before the Joint Committee on Municipalities and Regional Government and highlighted some of the key provisions of the bill that would aid in the production of much needed housing in Massachusetts. Just a few weeks later, President Yorkis, Government Affairs Committee Chair Steve Medeiros, and MAR Past President Corinne Fitzgerald testified before the Joint Committee on Community Development and Small Business, once again advocating for the passage of the H.O.M.E Bill.

TRANSFER TAX
On June 13th MAR General Counsel and Director of Government Affairs, Michael McDonagh testified before the Joint Committee on Revenue in opposition to proposals to create a transfer tax on the sale of real estate. Transfer taxes would create an entrance or exit fee to homeownership and would have serious implications for the Massachusetts housing economy. These taxes single out home buyers and sellers and raise the bottom line price of many homes by thousands of dollars.

TITLE 5 WORK GROUP
President Yorkis continued to represent Realtors® at the Department of Environmental Protection’s Title 5 Stakeholder meetings. The purpose of the meetings is to have outside experts and interested parties that represent a variety of interests and viewpoints provide advice to MassDEP on what modifications should be considered.

LEAD PAINT
In June, the Governor’s Lead Paint Advisory Commission met to discuss proposed changes to the lead regulations in the Commonwealth. The proposed amendments are intended to improve organization, clarify regulatory requirements, rescind unnecessary or outdated requirements, and implement a standard for lead poisoning and a blood lead level of concern used by the CDC and most states. Of note to those in the deleading field, they also propose to remove the deleading standard for a small number of surfaces, specifically some surfaces currently considered “accessible/mouthable”, which could substantially reduce deleading costs.

NAR MID YEAR
In May, thousands of Realtors® attended the 2017 Realtors® Legislative Meetings and Trade Expo in Washington, D.C. It has never been more important for Realtors® to remain engaged in advocacy initiatives and have our unified message and voice heard on Capitol Hill. As long as Realtors® continue to remain steadfast in working together, great strides will be made to protect the American Dream of property ownership and the real estate industry. This year Realtors® met with members of Congress to discuss tax reform, flood insurance, and protecting sustainable homeownership.

BOARD OF REGISTRATION
At its May 10th meeting, the Board of Registration of Real Estate Brokers and Salespersons once again discussed the use of the new Massachusetts Mandatory Real Estate Licensee-Consumer Relationship Disclosure form. MAR had requested clarification regarding use of the old form once the new form was released. The Board confirmed that there will be a two-year grace period before any action would be taken against agents using the old form during a transaction. Despite the approved grace period, MAR still strongly suggests that all agents use the new form released by the Board in January of this year.

MARGARET C. CARLSON REALTOR® DAY ON BEACON HILL
Over 400 Massachusetts Realtor® -members traveled to the State House on Wednesday June 14th to participate in the 32nd annual Realtor® Day on Beacon Hill. The annual lobbying day gave Realtors® the opportunity to discuss with their legislators the key issues that impact consumers, housing and the economy. State Senator Karen Spilka (D – Ashland), Chair of the Senate Ways & Means Committee, provided the 2017 keynote address. Thank you to all who attended.

2017 PRIVATE PROPERTY RIGHTS AWARD
Kevin Sears of Springfield was awarded the 2017 Private Property Rights Award at Realtor® Day on Beacon Hill on June 14th. The award is given to Massachusetts Realtors® whose outstanding efforts in advocacy have helped the Association achieve its objectives of increased access to homeownership and preservation of private property rights. Congratulations to Kevin.

HOUSING PRODUCTION HEARING
Proponents of efforts to increase housing production in Massachusetts crowded the hearing room at the State House on June 20th when the Joint Committee on Housing held a hearing on bills relative to production. President Yorkis delivered testimony that not only emphasized the housing supply shortage but also highlighted the revenue to the state and municipalities that goes along with housing production.

The Escalation Clause

Hispanic Couple Viewing Potential New Home

In this market, multiple offers seem to be the norm. To distinguish their offers from others, buyers are increasingly using “escalation clauses” in many areas.

What’s an escalation clause?

An escalation clause is a term that is included in a buyer’s offer that allows the buyer to automatically increase his or her offer to a certain amount. Here at MAR, we are in the process of creating a standard form escalation clause which will be included in the MassForms Library in the near future. Because every transaction is different, we recommend that your buyer clients carefully consider the advantages and disadvantages of using an escalation clause, and to always consult with an attorney before including one in an offer.

Key considerations

While the terms in an escalation clauses can vary, most escalation clauses contain the same basic features. These features include the original offer, the amount by which the buyer is willing to escalate his or her offer, the total amount that the buyer is willing to offer (the “cap”) and details about how the buyer will fund the escalated offer. In order for the escalation clause to kick-in, the seller must have received a higher bona fide offer from a competing buyer. A bona fide offer is an offer that is made in good faith and is legitimate and enforceable. At the buyer’s request, the seller must provide documentation to the buyer that the other offer was bona fide.

An escalation clause may not be right for all parties

Your buyer should consider a few things before using an escalation clause in their offer. For example, buyers should be aware that not all sellers accept offers that contain escalation clauses. Some sellers prefer to know the exact amount that a buyer is willing and able to pay for a home. In addition, escalation clauses can lead to increased paperwork and can complicate the final decision about which offer the seller accepts. The buyer should also be aware that escalation clauses reveal to the seller more information than is contained in a traditional offer. This is because the seller will know exactly how much the buyer is willing to pay. The seller could then decline the buyer’s offer and propose a counteroffer above the buyer’s cap.

Watch for the new form in the Massforms Library in the coming weeks. The form will be accompanied by a two page explanation sheet to give buyers and sellers more information to consider when using these clauses.

Can a text be legally binding in a real estate deal?

Can a real estate agent bind their client to a contract through a text message or email? The Massachusetts case, Saint John’s Holdings, LLC. v. Two Electronics, LLC., examines this very issue. The plaintiff, Saint John’s Holdings, LLC., sued Two Electronics, LLC. alleging that a text message from the defendant’s real estate broker constituted acceptance of a binding offer from the plaintiff to buy the defendant’s property.

Young woman using cell phone to send text message on social network at night. Closeup of hands with computer laptop in background

The case first examines whether the exchange of emails and text messages can create a binding and enforceable agreement. The Statute of Frauds requires that an agreement for the sale of real property be supported by a writing that contains the essential terms of the agreement. With the advance of technology what constitutes a ‘writing’ has become a gray area. The court examined multiple email exchanges between the plaintiff and the defendant and found that the emails contained the necessary essential terms of a contract including the purchase price, seller financing, the due diligence period, the closing date, and the deposit amount.

The defendant then argued that, even if a contract existed between the parties, the plaintiff’s acceptance of the contract terms by text message does not satisfy the signature requirement of the Statute of Frauds. In order to be enforceable, an agreement for the sale of real property must be signed by the party against whom enforcement is sought. Several courts have found that the requirements for a signature to satisfy the Statute of Frauds can be relatively minimal, including a typewritten, printed or stamped signature. The real estate brokers for both parties had typed their names at the end of messages that contained essential terms but did not type their names on more informal discussions. By signing their names in these exchanges, the court inferred that the parties chose to be bound by their signed communications. The court found that, by signing his name at the end of a text message acknowledging acceptance of the terms of the agreement, the defendant’s real estate broker intended to have the writing be legally binding.

Having found that a writing and a signature existed through the exchange of emails and text messages, the court then had to determine whether a real estate broker has the authority to bind a client to a legally enforceable contract. The plaintiff argued that the defendant’s real estate broker had the authority to bind the defendant to the contract. The court disagreed. The defendant’s real estate broker had never received permission from the defendant to do anything other than pass information back and forth between the parties. In addition, the plaintiff could not recall that the defendant ever informed him that the defendant’s real estate broker was authorized to accept offers to purchase the property or otherwise bind the defendant to a sale of the property.

Even though the real estate broker did not have authority to bind the defendant to the sale of the property, it’s important to note that exchanges in emails and text messages can satisfy the Statute of Frauds writing and signature requirements. Always be careful when sending communications through emails and text messages because you may run the risk of creating a legally enforceable contract.

2017 First Quarter Government Affairs Update

Massachusetts State House - Freedom Trail Site - Boston, Massachusetts, USA

MAR government affairs has been hard at work this year, introducing new legislation, pushing for housing development, and considering the impact of news laws on the real estate industry. Suffice it to say, 2017 will be an interesting one. Learn more below.

190TH General Court

January marked the start of the 190th General Court of the Commonwealth of Massachusetts. The start of a new session provides us with an opportunity to once again propose legislation that we have supported in the past, as well as introduce new issues. To start, we filed our H.O.M.E. Bill and its components in both the House and the Senate. The H.O.M.E. Bill is our effort to increase housing production through targeted zoning changes and improve specific items to help the economy. The bill’s 12 components have been filed as one omnibus bill and additional bills containing provisions related to each other. Additionally, we refiled our Mortgage Forgiveness Debt Relief legislation this year.

For the first time, we are introducing a new First Time Home Buyers Savings Account bill. This bill provides a tax advantaged way for future home buyers to begin saving for the purchase of their home. Specifically, it allows for future first time homebuyers to deduct contributions to a first-time home buyer savings account from their income for tax purposes. Senator Julian Cyr (D-Truro) has introduced the bill in the Senate.

View MAR’s 2017-2018 Legislative Priorities.

Sales Tax on Services

On April 5th, at a Greater Boston Chamber of Commerce event, Senate President Stanley Rosenberg commented that the state should begin to discuss the possibility of imposing a new tax on services. Rosenberg noted that the economy has shifted from goods to services and that the state’s tax structure needs to adjust for such a shift. Realtors® worked to defeat a similar tax proposal in 2009.  If a formal proposal of this tax is put forth, Realtors will once again be prepared to oppose it.

Commonwealth Conversations

The Massachusetts Senate is currently holding nine listening sessions as part of the 2017 “Commonwealth Conversations.” Senators from around the Commonwealth are conducting a series of regional public forums to hear the concerns and priorities of the people of the Commonwealth, from western Massachusetts to Cape Cod. The “Commonwealth Conversations” are based on a simple premise–engage the people in the process and the process will ignite. Over the course of the past month, Senators have have heard from Realtors® attending these forums, and have the opportunity to carry our important messages back to Beacon Hill. The main topics included the First-Time Homebuyers Savings Account, the H.O.M.E Bill, Mortgage Forgiveness Debt Relief, and access to high-speed broadband.

Building Code

On March 7th, MAR government affairs staff attended the Board of Building Regulations & Standards’ (BBRS) first public hearing on the 9th edition of the Massachusetts building code. MAR submitted testimony opposing a proposal that would add a requirement to the code that all new homes be built ready to accommodate an electric vehicle charger station. This would include all necessary conduits as well as blocking off circuits in the home’s electric panel. The provision is being offered as an additional amendment to the code and was not included in the version originally put forth for public comment. The decision of whether to include the necessary equipment to install an electric vehicle charging station should be left to the builder and homeowner and should not be required by the code.

Marijuana

The Joint Committee on Marijuana Policy held its first public hearing on March 20th. The committee is tasked with recommending any necessary changes to the recently enacted marijuana law. MAR government affairs staff attended the hearing with a specific interest in landlord/tenant issues and general private property rights concerns. The law currently allows for adults to cultivate up to six marijuana plants. However, landlords are permitted to prohibit the smoking and cultivation of marijuana in their units.

Agency Disclosure

The Board of Registration for Real Estate Brokers and Salespersons released an updated version of the Agency Disclosure Form. The form attempts to provide information to buyers and sellers more clearly and more succinctly than the previous form. However, nothing in the agency law itself has changed. The form is currently active in all of the MAR electronic forms platforms.

Title 5 Workgroup

The Massachusetts Department of Environmental Protection (MassDEP) has invited MAR to participate in a series of stakeholder meetings to consider various aspects of Title 5 and Groundwater Discharge regulations. The purpose of the meetings is to have outside experts and interested parties that represent a variety of interests provide advice to MassDEP on what modifications should be considered. Some of the topics include: appropriate design flows for various property types, use of innovative and alternative technologies, approaches to managing peak flows, coordination between state and local requirements and requirements for nitrogen sensitive areas. MAR is happy to have President Paul Yorkis participating on our behalf.

Realtor® Political Action Committee

As an Association, we are on track to reach our NAR goal with a grand fundraising total of over $215,000 invested in RPAC. This is a $100,000 increase from this time last year. This early progress is indicative of the increased awareness of the importance of investing in RPAC among members. As for participation, NAR has set our participation goal at 36%. Currently, we are at 31% total membership participation with a total of 6,667 RPAC investors.

California Dual Agency Case – Horiike v. Coldwell Banker

Midsection of judge reading document at desk in courtroom

On Tuesday, November 22nd, 2016, the California Supreme Court issued its opinion on Horiike v. Coldwell Banker, which focused on the interpretation of the California dual agency statute, Civ. Code sec 2079.13(b). The court affirmed the appellate court’s opinion by holding that, pursuant to that statute, each of the salespeople involved in a dual agency transaction owe fiduciary duties to both the buyer and the seller. It is important to note that this decision is entirely based on the literal interpretation of the California agency statute and will have no effect on agency issues here in Massachusetts.

For more information on the case, please visit:  http://realtormag.realtor.org/daily-news/2016/11/22/dual-agency-role-expanded-in-calif-high-court-ruling