Once a year, we review cases dealing with technology issues in the real estate field. Technology cases include issues such as internet and phone use, intellectual property rights, and privacy concerns. Cases, statutes, and regulations in this area from the last twelve months are detailed below.
The technology cases from this past year address two different issues. The first case involves a copyright infringement claim over a photograph on a broker’s website. The second case examines alleged violations of the Telephone Consumer Protection Act by a mortgage broker.
1. Bell v. Taylor, No. 1:13–cv–00798–TWP–DKL, 2014 WL 4250110 (S.D. Ind. Aug. 26, 2014)
Licensee did not owe damages to a photographer for use of a copyrighted photo on her website.
A photographer took a photo of the Indianapolis skyline, which he published online and later registered with the copyright office. A licensee hired a web designer to create her website, and the designer used the skyline photo on the licensee’s website. The photographer sued the licensee for copyright infringement, civil theft, and other issues. The photographer could not prove that he had suffered any monetary harm from the photograph’s use, however, so the court ruled in favor of the licensee.
2. Roylance v. ALG Real Estate Services, Inc., No. 5:14–cv–02445–PSG, 2015 WL 1522244 (N.D. Cal. March 16, 2015)
A mortgage broker might be liable for making prerecorded calls to a residential phone line in violation of the Telephone Consumer Protection Act.
A plaintiff received a prerecorded telephone message from a mortgage broker offering him a 30-year mortgage. After a live phone call with the mortgage broker, the plaintiff sent a certified letter to the broker, asking for his name to be put on the company’s do-not-call list. Thereafter, plaintiff received five more identical prerecorded calls. The plaintiff claimed that the mortgage broker violated the federal Telephone Consumer Protection Act, as well as related state laws in California. The mortgage broker did not respond to the complaint. The magistrate judge found that the plaintiff’s complaint supported a finding of a violation of the Telephone Consumer Protection Act. The magistrate recommended that the court enter a default judgment against the mortgage broker for the violation because he failed to respond to the lawsuit.
B. Statutes and Regulations
California, Colorado, Georgia, Indiana, Louisiana, and New York
Five states adopted or modified their rules regarding internet advertising in the past year. Four of these states require electronic advertising to include the broker’s name. New York8 and Georgia also require internet advertising to include the broker’s contact information. The Georgia regulation makes clear that this requirement applies to advertising in many forms of media, including websites, blogs, and social media.9 The Indiana regulation requires advertising to include the broker company’s name, but makes an exception for electronic messages with limited information (such as text messages and Tweets).10 For those types of messages, the broker company’s name does not need to be included if the message is linked to the broker’s name.
In Colorado, a broker is responsible for ensuring the accuracy of all internet advertising.11 For websites within the broker’s control, each viewable page must include the broker’s name and the broker’s brokerage firm name. The broker must also remove expired listings from the website within three days of expiration. If a broker uses a third party for advertising on the broker’s behalf, the broker must ensure the information provided to the third party is accurate. A new rule in California requires the licensee’s name and licensee number to be included on all internet advertising in which a fictitious business name is used.
New Jersey modified its no-call list law. The law formerly prohibited telemarketing calls, but the amendment allows some sales calls to be made to commercial mobile service devices.12 Calls made in response to an express written request or to an existing customer are allowed, unless the customer has told the telemarketer that he or she does not want to receive such calls. Only unsolicited telemarketing sales calls are now prohibited.
California and Missouri
These two states both adopted rules about “ephemeral” messages—texts and instant messages. In California, licensed brokers must keep copies of documents like listings and deposit receipts, for three years. Now, that requirement has been updated to clarify that the law does not require brokers to retain electronic messages of an “ephemeral” nature (text messages and instant messages).13 Brokers also now cannot be sued by anyone claiming that a text or instant message created a contract to transfer real estate.14
Missouri amended its definition of “correspondence” to mean written or electronic communication, but not ephemeral messages, such as text messages or another communication that is not designed to be retained or to create a permanent record.15
C. Volume of Materials Retrieved
Only one case retrieved this quarter addressed a Technology issue (see Table 1). Two additional technology cases, discussed above, were retrieved for the last four Update periods. Ten legislative or administrative authorities dealing with technology issues were collected in the past year.
8 N.Y. Comp. Codes R. & Regs. tit. 19, §175.25 (2014).
9 Ga. Comp. R. & Regs. r. 520-1-.09 (2014).
10 Ind. Admin. Code tit. 876, r. 8-1-8 (2015).
11 4 Colo. Code Regs. §725-1, E-8 (2014).
12 N.J. Rev. Stat. §56:8-130 (2015).
13 Cal. Bus. & Prof. Code §10148 (2014).
14 Cal. Civil Code §1624(d) (2014).
15 Mo. Rev. Stat. §339.010(7) (2015).