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REALTOR® ASSOCIATION EXECUTIVE
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 Protect Member Privacy Roster Risks By Mike Thiel Member rosters are an elementary feature of any association Web site today. Consumers shopping for just the right practitioner and members needing to contact other members frequently refer to online rosters. Yet these publicly available listings and databases of member contact information also have a down side. Rosters contain information valuable to businesses that want to market their goods and services to real estate practitioners. The next time members call you to complain about spam, accusing you of selling their e-mail address--even though you've never provided anyone with a list of e-mail addressesÑremember there are people out there harvesting member information from a source you never intended: your member roster. Unfortunately, your association may not be able to prevent these misuses of roster data even when the directory is copyrighted and access to and use of the information is restricted. Consider what happened to an association of therapists that compiled and distributed its member roster. The American Massage Therapy Association's roster of nearly 39,000 names listed all members by geographic region and then listed them alphabetically. The lists were further organized so that members were listed alphabetically within the city where they practiced and in the alphabetic section the members were divided into each of the association's membership categories and then listed alphabetically within those categories. The roster included each member's name, address, and telephone number in addition to information regarding their membership. Although the association rented its membership list as a source of nondues revenue, members were allowed to opt out of the list when it was rented, but still remain on the roster. Nearly 4,000 members opted out of the rental program. The association recognized the value of the information contained in its roster and the desire of members that it not be misused. To protect the integrity of its roster, the association copyrighted the roster and tried to limit the authorized uses of the information with restrictive provisions. One of the notices included in the roster stated: The information contained in this publication is the property of the [association], is highly confidential, and may not be duplicated or used except for the personal use of the authorized recipient of the Registry. The contents of this Registry may not be used as a mailing list and may not be reproduced or stored electronically or copied in any manner whatsoever without permission of [association]. A marketing and public relations firm that specialized in servicing the therapists' market had its own database of therapists' names and addresses compiled from regulatory agencies. But it was incomplete. So the marketing firm asked a former employee to obtain a copy of the association's membership roster for the firm and copied the names and addresses it didn't already have into its database. Using the names in its database, the marketing firm distributed a publication and, for a fee, offered a massage therapist locator service. It also rented its list to other companies. When the association discovered the marketing firm's use of the association roster, it filed suit in federal court. The lawsuit alleged the unauthorized use of the roster was an infringement of the association's copyright. To prove copyright infringement, the association had to establish that it had a valid copyright and that the collection of names was original. Although the marketing firm conceded the first point, it contended that the names and addresses weren't original to the association and that they were facts not entitled to copyright protection. The association, however, pointed to other cases in which copyright protection was afforded when a significant portion of a compilation was taken and used. But the court found for the marketing firm, stating that the individual names and addresses (like those in the Feist case involving the copyright of a telephone directory) were facts not entitled to copyright protection. Since the marketing firm copied specific roster names but didn't copy the association's organization or arrangement of the roster names, the court fount that there could be no copyright infringement. The organization of the names was original to the association, not the names themselves. As a result, the court held that the copying of names and addresses from the association's membership roster didn't violate the association's copyright. This is an important point for associations to remember when posting or distributing information on their members. Particularly when such information is in electronic form, information aggregators and harvesters will employ sophisticated methods to stripÑor "scrape"Ña database for names and e-mail addresses. Many Realtor® associations, including the National Association, have policies that prohibit the rental, sale, or sharing of e-mail addresses with third parties. The best way to avoid taking the blame for distributing contact information to third parties is to make members aware of the association's policies and that even copyrighted information can be misused. American Massage Therapy Association v. Maxwell Petersen Associates, Inc. Northern District of Illinois, 01 C 3193, decided 7/18/02. Mike Thiel is an associate council in NAR's legal department. He can be reached at mthiel@realtors.org. Send feedback on this article. |
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