Court Says That Travel Company Can't Tell Others How Much Southwest Flights Cost
from the c'mon dept
A few months back, we wrote about Southwest Airlines’ ridiculously antagonistic legal strategy against aggregators that would scrape information on flights and prices from Southwest.com and help people find flights and prices. The case we covered was the one against Skiplagged, but it was related to a separate case against Kiwi.com. Skiplagged had argued that it didn’t violate Southwest’s terms of service since it wasn’t scraping info from Southwest… but rather had scraped it from a different site, Kiwi.com, which in turn had scraped it from Southwest.com.
Just the fact that we’re arguing over whether or not it’s legal to scrape data from publicly available websites should alert you to the fact that these lawsuits are nonsense. Factual data — such as flight routes and prices — are not protected by any intellectual property and if you put them out there, people can (and should!) copy them and spread them elsewhere. But, unfortunately, the court ruled against Kiwi.com last fall, granting Southwest an injunction saying that Kiwi can’t scrape its site for data any more. Realizing it was in trouble, it appears that Kiwi caved in and settled the lawsuit agreeing to no longer collect data on Southwest flights.
Given that, the court has now made the preliminary injunction a permanent injunction barring Kiwi and any of its employees from ever scraping data off of Southwest’s site. The court takes for granted that Southwest can just say in their terms of service that you can’t copy data from their website and that’s a valid contract. That seems dangerously empowering for terms of service. Can I add to Techdirt’s terms of service that by reading this site you agree to place any copyright-covered works you create into the public domain?
Southwest?s Terms & Conditions are a valid and enforceable contract, and Kiwi.com accepted those Terms & Conditions when it used the Southwest Website with knowledge of the Terms & Conditions;
Kiwi.com breached the Terms & Conditions when it, among other things, harvested and scraped data from the Southwest Website, published Southwest?s flight and fare schedules on Kiwi.com, used the Southwest Website for Kiwi.com?s own commercial purposes, and brokered and sold Southwest flights without permission;
Kiwi.com?s violations of the Terms & Conditions have caused Southwest to suffer irreparable harm, including lost traffic on its website, customer service burdens, operational disruptions, and reputational damage; and
After considering the balance of harms, the threatened injury to Southwest if the injunction was denied outweighed the harm to Kiwi.com because, among other things, Kiwi.com?s unauthorized sales of Southwest flights poses a significant disruption to its customer operations, and the public interest would be served if an injunction is granted because there is an expectation that parties to contracts will honor their contractual obligations.
Those last two paragraphs also seem like complete nonsense. If people find it easier to use a third party service than your own site, well, then that should mean you should work to improve your own site, not get to sue them in court. Lots of things lead to “lost traffic” on a website, including better service from a competitor. But we don’t say that violates the law.
Anyway, because of this no one associated with Kiwi.com can ever “extract” any information from Southwest’s website or even post data about Southwest flights on its website and I honestly don’t see how that’s possibly legal. Data is data. You shouldn’t be able to bar a company from posting data.
IT IS HEREBY ORDERED that Kiwi.com, Inc. and Kiwi.com s.r.o., as well as their officers, agents, servants, employees, and attorneys and all other persons acting who are in active concert or participation with them, are permanently prohibited, restrained, and enjoined permanently from: (1) harvesting, extracting, or scraping information from the Southwest website, www.southwest.com, or its proprietary servers, including Southwest?s flight and fare information; (2) publishing Southwest flight or fare information on the kiwi.com website, through its mobile applications or elsewhere; (3) otherwise accessing and using Southwest?s website and data for any commercial purpose; (4) selling Southwest flights; and (5) committing any other acts in violation of Southwest?s Terms & Conditions
What an unfortunate state of an events — but also a very clear reminder that Southwest is anti-consumer in its practices.