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A new lawsuit by the California Association of Realtors® (CAR) highlights the trade union’s bestial instincts when it comes to protecting its territory — particularly, territory it charges handsomely for.

This article is Part One in a series discussing CAR real estate forms. For Part Two, see: zipLogix puppetry and CAR’s disguised ownership

CAR cries foul on form access

The California Association of Realtors® (CAR) recently threw the book at digital document management company PDFfiller claiming unauthorized copyright and trademark infringement by use and distribution of its forms — a mortal offense to all familiar with CAR’s ferocious defense of exclusivity.

CAR alleges in its complaint that PDFfiller is “engaging in a massive counterfeiting scheme, for profit” through its online services to users who access, fill, download or otherwise use CAR forms.

Right — because only paying CAR members ripe with dues are granted access to CAR forms.

According to their press release, which was widely republished on the internet, CAR seeks $136 million in damages through money judgments of $9.6 million and $128 million for copyright infringement and counterfeit, respectively.

CAR, in their complaint, further breaks down its sought valuation to:

  • statutory damages for the production and sale of each of the 64 trademarked CAR forms available through PDFfiller, between $30,000 to $150,000 each;
  • counterfeit damages of $200,000 to $2 million for each copyright infringement;
  • $2,500 per act of circumventing CAR’s password-protected forms services; and
  • attorney fees and other legislative costs.

CAR alleges in its complaint that PDFfiller and individual defendants “brazenly ignored cease and desist notices and continue to sell counterfeits,” leading to CAR’s having “suffered irreparable damage,” “loss of reputation in the industry” and “lost revenues and profits.” A complaint is a safe place to make such statements.

CAR also alleges PDFfiller has spent “as much as $100,000 per month on the purchase of Google Adwords in order to attract purchasers to purchase counterfeit business documentation solutions, including counterfeits’ [sic] of documents from the CAR library.”

Inman recently reported a statement by PDFfiller President Boris Shakhnovich that the company “intends to vigorously defend itself.” Shaknovich further claims CAR’s complaint “is replete with inaccuracies and misstatements” and denies much of CAR’s allegations.

According to Shaknovich, PDFfiller does “nothing more or less than provide a general purpose tool to type on, fill, fax, sign, edit documents.” It is a more streamlined, tech-friendly interface than the proprietary zipForm platform required by CAR. It is also significantly less expensive than the annual membership dues required to access CAR forms, costing users merely $6 to $15 a month.

And that’s exactly the problem. CAR does not suffer itself to be financially depleted by openly providing its “gold standard” real estate forms to the greater, unpaying public. If forms are truly free, as dubiously claimed by CAR, then why is it seeking $136 million in damages?

The answer is quite simple: once the forms are stripped away from the exclusive CAR membership equation, very few tangible benefits of being a Realtor® remain, besides the tormented world of politics.

CAR members in the crosshairs

PDFfiller is not the only one on the chopping block. CAR Vice President and general council June Babiracki Barlow told Inman that CAR “will find out as this lawsuit progresses” how PDFfiller came to store trademarked forms in its database.

CAR members or paid subscribers to the CAR forms library who shared passwords or uploaded CAR forms to PDFfiller – which is likely how they got into the PDFfiller database – may eventually face consequences for intentional or repetitive disregard of CAR’s expressed steel-plated copyright restrictions.

Further, CAR welcomes reports by agents of agents in violation, and even has an email account dedicated to complaints of copyright infringement.  Essentially, they’re looking for snitches to piece together their claims.

The message this posturing displays to its members is clear: those forms they pay so much to access aren’t really theirs to do with as they please when representing their clients. CAR forms may only be used in the limited context CAR provides — and only when members pay their annual dues, of course, necessary to stay connected to the cloud and past files.

For now, CAR’s suit is “focusing more on the vendor” according to Barlow — although thinly veiled suggestions warn agents against messing with CAR’s eminent trade union authority. An article written by CAR director Bob Hunt of Orange County on RealtyTimes warns unauthorized form sharing and access is “an offense against your fellow members” and “could come back to bite you.” CAR very well may lash out against both its perceived enemies as well as bite into the very hands that feed it — its members.

Whether CAR actually acts on this threat to its members remains to be seen, but the warning shot has clearly resonated amongst California agents.

Déjà-dotloop

The last time CAR got territorial over forms, dotloop, another online document management company, succumbed to the trade union’s strong-arm tactics to restrict access to its forms library. Dotloop provided similar services to PDFfiller, but apparently did not market or advertise filler programs for CAR forms to pad its profits. Dotloop eventually tucked tail and bowed to CAR’s intimidation, precluding its members from loading CAR forms into its robust platform. CAR never went so far as to sue dotloop, perhaps because of its expedient acquiescence — a power dynamic eerily familiar to a bully and victim.

PDFfiller’s refusal to submit to CAR’s allegations highlights Shakhnovich’s accusation that the suit is part of CAR’s “past practice of threatening and filing lawsuits against small software companies, especially ones they see as potentially threatening or competitive to their own solutions,” according to Inman’s report.

Thus, Shakhnovich essentially positions PDFfiller as the David to CAR’s Goliath, valiantly opposing the oppressive giant of real estate forms production, sale and use — and apparently unaware less financially devastating alternatives exist, such as those produced by this publisher.  first tuesday is not just a casual witness to this drama over filler programs, when considering a form’s basic content to be more important to agents and brokers than the use of a filler and cloud storage program.

Agents who don’t want to lose their lunch money can access truthfully free forms from the RPI (Realty Publications, Inc.) Forms Download page. Contrary to popular (and CAR-promulgated) belief, real estate forms do not need to be bought through trade union membership to be legal or viable (and the Gold Standard was eliminated in the 1930s worldwide, some forty years after CAR came into existence).

Further, RPI forms do not have to be confined to an antiquated document management system tethered to the cloud for all purposes. They’re your forms — use them as you like, whenever and wherever that may be.  RPI forms are fully compliant with current California law and available for zero dollars and zero membership fees, no password required — and no threats.

And perhaps most importantly, RPI forms provide maximum loss reduction protection for brokers and their agents. As a matter of policy, our forms do not contain clauses which increase the risk of litigation or work against the best long-term interests of the buyer, seller and broker such as attorney fee provisions and forfeiture of deposit clauses.

Continue reading about CAR real estate forms in Part Two of this article series: zipLogix puppetry and CAR’s disguised ownership.