ISSUES FOR MULTIPLE LISTING SERVICES TO CONSIDER BEFORE ISSUES FOR MULTIPLE LISTING SERVICES TO CONSIDER BEFORE LICENSING DATA TO REALTOR® PROPERTY RESOURCE (RPR) OR LICENSING DATA TO REALTOR® PROPERTY RESOURCE (RPR) OR FIRST AMERICAN CORE LOGIC (FIRST AMERICAN)FIRST AMERICAN CORE LOGIC (FIRST AMERICAN)

Robert d. Butters, Esq.Robert d. Butters, Esq.Arnstein & Lehr LLPArnstein & Lehr LLP

120 South Riverside Plaza, Suite 1200120 South Riverside Plaza, Suite 1200Chicago, Illinois 60606Chicago, Illinois 60606

312-876-6933312-876-6933Email: rdbutters@arnstein.comEmail: rdbutters@arnstein.com

RPR MLS CONTENT LICENSE AGREEMENTRPR MLS CONTENT LICENSE AGREEMENT

Basic Business Considerations Basic Business Considerations

1. Value of RPR as a Free Member Benefit

2. Access to RPR Public Records

3. No Revenue Share

4. RPR’s Total Control over “RPR Offerings” and “RPR Customers”

5. RPR “Licensed Content” Includes Active, Pending and Off Market (Sold) Listings and Roster Information

License Agreement Issues License Agreement Issues

1. Definitions (Section 1)a) “Authorized RPR User” (Includes Thompson

Brokers without any limitations on level of use. Includes other Associations of REALTORS®)

b) “Licensed Content” (Includes all listing categories and roster information)

c) “Multiple Listing Service” (Traditional Definition)

d) “RPR Customers” (Any non-NAR Member)e) “RPR Offerings” (Only excludes products

targeted at Authorized RPR Users and property owners)

License Agreement Issues License Agreement Issues

2. License Grant (Section 2)a) Levels of access available to Thompson

Brokers Is not defined nor is whether RPR Content can be used to create BPOs.

b) Does not address broker “opt out” rightc) Grants RPR rights to combine RPR Licensed

Content with data from other sources.d) Rights of Authorized Users to display RPR

Content on VOWs or IDX sites is not clear.e) Non-compete is limited to MLS’ “Market Area”

and is limited to definitions of “MLS” in Section 1.

License Agreement IssuesLicense Agreement Issues

3. Proprietary Rights (Section 5)

Only recognizes MLS proprietary rights in “selection, compilation, and arrangement” of Licensed Content in MLS Databases.

License Agreement IssuesLicense Agreement Issues

4. Liability Provisions/Limitations (Section 8)

a) No warranties by RPR

b) MLS liable for actual damages; only consequential or punitive damages are excluded

c) RPR indemnifies MLS only for RPR’s own conduct, but not for conduct of RPR Customers or Authorized RPR Users who are not MLS’ Participants/Subscribers.

License Agreement IssuesLicense Agreement Issues

5. Term and Termination (Section 9)

One year term with automatic rollover. No right of either party to terminate without cause.

License Agreement IssuesLicense Agreement Issues

6. Authorized RPR User Terms of Use Agreement (Exhibit A)

a) Grants license to “Realtor Associations”

b) Does not expressly define limits on access of different types of Authorized Users.

First American MLS Data License AgreementFirst American MLS Data License Agreement

Basic Business ConsiderationsBasic Business Considerations

1. Data for Dollars

2. Exclusive versus Non-Exclusive (More $$ and Use of ValueMap Property Valuation Product if Exclusive)

3. Exclusive Option would preclude any agreement with RPR or similar company.

4. Open Ended “Permitted Use” Definition

5. No Direct Consumer Access to MLS Data

Specific License Agreement Issues Specific License Agreement Issues

1. Definitions (Section 1)

a) “MLS Data” (includes all listing statuses, but does not address broker “opt out.”)

b) “Permitted Use” (means any “derivative” created by First American)

c) “Risk Management” (virtually all B2B uses in financial sector)

Specific License Agreement IssuesSpecific License Agreement Issues

2. License Grant (Section 2)a) Exclusive or Non-Exclusiveb) Consumer applications excludedc) First American can continue to use

MLS Data for 12 months after termination.

d) No acknowledgement of MLS’ intellectual or proprietary rights in MLS Data.

Specific License Agreement IssuesSpecific License Agreement Issues

3. Consideration (Section 3)

a) Revenue Share does not include AVM Revenue

b) MLSs agreeing to exclusivity can use Realist ValueMap product

Specific License Agreement IssuesSpecific License Agreement Issues

4. Term/Termination (Section 4)a) Three year initial term with one year

renewal terms unless 90 days notice of non-renewal

b) No termination without causec) Post termination MLS Data use

does not apply if agreement is terminated because of First American’s breach

Specific License Agreement IssuesSpecific License Agreement Issues

5. Indemnification/Disclaimers (Section 7)a) MLS must give a non-infringement

warrantyb) MLS must indemnify First American for

third party infringement claims based on MLS Data

c) First American will indemnify MLS only if agreement is exclusive

d) No First American warranties, including any warranty of non-infringement of First American “Permitted Uses.”

Specific License Agreement IssuesSpecific License Agreement Issues

6. Liability Limitations (Section 8)a) First American’s and MLS’ damage

liability is limited to monies paid to MLS during 12 months prior to claim

b) Indemnity obligations (if any) are excluded from limitations

Specific License Agreement IssuesSpecific License Agreement Issues

7. Royalty Payments (Exhibit A)a) Royalties based on First American

Revenues derived from pool of data from all MLSs, and percentage of pool represented by MLS’ “Active Listings”.

b) Non-Exclusive Royalty=7%c) Exclusive Royalty=30%d) Additional Royalty percentages if MLS is

a First American “client”, and if Active Listings in Pool exceed 1M, 1.75M, and 2.5M

ConclusionConclusion

RPR MLS Content Agreement RPR MLS Content Agreement

1. Use of RPR Functionality—Very Robust2. Access to “Free” RPR Public Records3. No Revenue Share4. RPR has rights to use Licensed Content

to create unrestricted “RPR Offerings” and market them to any non-NAR Member

5. Ambiguous provisions on use of RPR Content by Thompson Brokers and NAR-Member “Authorized RPR Users”

6. Limited recognition of MLS’ proprietary rights in Licensed Content

First American MLS Data License AgreementFirst American MLS Data License Agreement

1. Primarily a Revenue Share Proposition

2. Three year commitment

3. Open ended grant of right to “Permitted Uses” of MLS Data

4. Minimal Revenues if Non-Exclusive

5. Enhanced Benefits and Protections only if Agreement is exclusive

6. Liability exposures from lack of First American indemnity promise (if non-exclusive) or warranties

Questions?Questions?