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.

The Impact of Recreational Marijuana on Real Estate

Large Indoor Marijuana Commercial Growing Operation With Fans, Greenhouse, Equipment For Growing High Quality Herb. Cannabis Field Growing For Legal Recreational Use in Washington State
Large Indoor Marijuana Commercial Growing Operation

On November 8th 2016 Ballot Question #4, which will allow for the recreational use of marijuana, was passed by Massachusetts voters in a fairly wide margin of 54% to 46%. Under the new law, the use of marijuana for recreational purposes will be legal starting on December 15, 2016. However, the sale of the drug from regulated retail stores will not be permitted until the beginning of 2018. So how will this new law impact real estate? Here are a few considerations to keep in mind, but watch for more information from MAR on this issue in the coming weeks and months.

The first thing to consider is that although legal under state law, marijuana remains a Schedule 1 illegal substance under federal law. Up until this point the federal government has taken the position that it will not enforce federal law in those states that permit recreational marijuana usage. However, there is no guarantee that they will keep this position in the future as more and more states change their laws to allow for the use of marijuana.

How will the legalization of recreational marijuana affect landlord-tenant relationships and the rights of each party? As written, the law will allow for landlords to prohibit the smoking of marijuana on their property, but owners should be sure to check the language of their lease agreements to make sure the issue is covered. Just as a landlord may prohibit smoking of cigarettes in an apartment, they may also prohibit smoking of marijuana.

How will the new law affect residential transactions? Similar to the laws in Colorado and other states, the law will permit residents to cultivate a certain amount of the drug in their homes for personal use. This could potentially impact the homeowners insurance policy if there is a loss due to issues related to water damage, electrical fires and mold issues.

When listing a home where cultivation is occurring, it is prudent to have a conversation with the seller prior to any showings or open house. A seller should consider removing or relocating equipment during the listing period.

Finally, the new law provides cities and towns with some ability to regulate or prohibit the sale of marijuana at retail locations within their community.

It is likely that additional regulations will be enacted and changes to the law itself may be made by the legislature before 2018. This will hopefully provide some additional time to clarify some of the issues that relate directly to the real estate industry.

What changes in the Massachusetts Homestead Law means to homeowners

On December 16, 2010, Governor Deval Patrick signed into law a series of important amendments to the Homestead Act (Mass. General Laws, Ch. 188) that current and future homeowners should know about.  These changes will go into law on March 16, 2011.

At this point, you might very well be asking yourself what’s a “Homestead”?  Actually, the exact term is “Declaration of Estate of Homestead.”

This declaration is a legal document filed at the registry of deeds that informs the public that the homeowner is asserting his/her rights to protect the equity in the home from subsequent creditors. Upon filing a Declaration of Homestead, a person’s primary residence is protected against subsequent attachment, suit, or bankruptcy to the extent of five hundred thousand dollars ($500,000) of equity per residence, per family.

While a Homestead can protect the equity in many situations, there are some obligations that are not covered, such as debts relating to the purchase of the home (purchase money mortgages), tax obligations, and child/spousal support obligations.

The Two Major Changes You Should Be Concerned With:

  1. Under existing law, homeowners must file a Declaration of Homestead at the registry of deeds to obtain coverage. In March 2011 when these changes become effective, there will be automatic coverage in the amount of $125,000 without any filing.  However (and this is important to know), in order to obtain the maximum coverage of $500,000, the homeowner must still file the Declaration at the registry.This automatic coverage will protect homeowners who may not have heard of the Homestead Act, but clearly there remains a significant benefit to filing the Declaration at the registry.
  2. Although the maximum amount of coverage has not changed, the Act now allows homeowners to sell their primary residence, yet maintain the same Homestead protection on the proceeds of the sale. This protection is available for one year from the time of the sale or when a new primary residence is purchased, whichever is sooner.This new consumer-friendly provision may allow a homeowner who, for example, needs to sell the home to relocate for a new job or downsize their current home to a smaller home or condo. In some cases, this may provide an opportunity for a homeowner with debt-related issues to still purchase another home.

There are other changes to the law, but these are two of the major ones.  Just remember, with many issues, homeowners should consult their personal attorney regarding specific legal questions about the Homestead Act and how they may or may not be impacted by the new changes.