Legal counsel at the Mass Association share notes from calls they’ve received through the legal hotline. This month, they have a great Q&A about how to handle an offer you feel was not presented, and the Digital Millennium Copyright Act (DCMA):
Q. I submitted a great offer on a house and never got a response. I don’t think my offer was presented to the seller – what can I do?
A: Real estate agents are under an obligation to present all offers to their seller client. The Realtor® Code of Ethics Standard of Practice 1-6 states that offers and counteroffers must be submitted as objectively and as quickly as possible. However, not all real estate agents are Realtors® and required to abide by the Code. However, 254 CMR 3.00 also requires all agents to present offers and states: “All offers submitted to brokers or salespeople to purchase or rent real property that they have a right to sell or rent shall be conveyed forthwith to the owner of such real property.” Many MLS Rules and Regulations, including MLSPIN, also require that a seller agent present all written offers to their client. Your MLS may also have a rule that allows buyer representatives to request to be present for the presentation of the offer to the seller. Despite the requirement that offers be presented, there is no legal obligation to acknowledge receipt or send a formal rejection of an offer, making it seem like your offer is floating out in the great abyss. The only situation in which a real estate professional is exempt from presenting an offer to a seller is if the seller client has provided an explicit instruction to the agent to not present offers that do not meet certain criteria, such as a minimum price. If you are concerned that your offer may not be presented, or hasn’t been presented at all, the best action you can take as a buyer’s agent is to ask that the seller provide you a formal rejection in writing. That will demonstrate that the offer was presented and the seller chose not to accept those terms. The buyer can then move on, or submit a new offer with different terms.
A buyer may choose to contact the seller directly to inquire as to the status of their offer, but it is likely that this course of action will ruffle some feathers. If a seller wishes to work with a buyer directly, they would not have hired an agent. A last resort, if you are truly convinced that the listing agent has withheld your offer, is to file a complaint with your local Realtor® Board or the Board of Registration. This is not an option to take lightly, but is available if necessary.
Q. I keep hearing that I was supposed to do something with the DMCA by December of last year and I didn’t – is it too late?
A. No, it is not too late. The rules changed in December 2017, but you can take advantage of the DMCA Safe Harbor protections at any time. 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 MLSs as well as participants and subscribers hosting an IDX display.
Brokerage firms and agents looking to claim – or maintain – the “safe harbor” protections established under the DMCA must electronically register their Designated Agent as all prior paper filings are now 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.
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”, the following criteria must be satisfied:
1. Designate a Copyright Agent
• This must be done online at www.copyright.gov/dmca-directory/.
• 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.
The National Association of Realtors® has produced a brief video that explains the changes to the DMCA and tips for Realtors® to comply with the safe harbor provisions. You may watch the video by following this link: https://www.nar.realtor/videos/window-to-the-law/window-to-the-law-changes-to-dmca-safe-harbor. Furthermore, NAR has 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. NAR’s policy can be found here: https://www.nar.realtor/terms-of-use.
The United States Copyright Office has prepared a very helpful FAQ section on their website that will address many questions you may have regarding this update. This information may be found here: https://www.copyright.gov/rulemaking/onlinesp/NPR/faq.html.
The information and services provided though the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service. The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at firstname.lastname@example.org.