Southwest's Bullshit Lawsuit Over A Site That Made $45 Helping People Book Cheaper Flights

from the fuck-off-southwest dept

In the past, I've been a pretty big fan of Southwest Airlines. On many routes it has been my first choice for flights. However, after digging into a new lawsuit the company filed earlier this month, I'm pretty close to swearing off Southwest forever. I can't support this kind of bullshit legal bullying. First off, Southwest does have a bit of history legally bullying sites that improve the Southwest experience. Back when your seating on Southwest really depended on how close to 24 hours prior to your flight that you checked in, there were a few services that would automate checking you in at exactly the 24 hour mark, and Southwest sued to shut them down. The company has also threatened tools that merely scraped Southwest fares -- which could be kind of useful, since Southwest doesn't share its fares with popular flight info aggregators like Kayak and Expedia.

It is somewhat questionable whether or not Southwest actually has a legal right to block that -- pricing info is not covered by copyright -- but there are lots of attempts these days to twist laws to argue that merely putting something in a terms of service is enough to create a legal obligation.

Enter a new site: SWMonkey.com. The idea behind the site is fairly simple. Because Southwest Airlines (unlike basically every other airline) actually has no fees to change your flight, if you spot your same flight available for less, you can call Southwest and basically exchange your ticket for the new ticket and get credit for future flights (and sometimes even cash back). Southwest, of course, relies heavily on the idea that not many people take advantage of this. SWMonkey's clever idea was to monitor price changes for you, and alert you if the price on your flight dropped significantly. The site charged a $3 fee if it could save you $10 or more.

The site launched in November and Southwest sent a fairly obnoxious cease and desist letter to SWMonkey almost immediately after it launched. The crux of the cease and desist was that what they were doing was trademark infringement.

It has come to Southwest's attention that you are using Southwest's proprietary and trademarked names and logos in connection with your business. This is misappropriation of Southwest property, an infringement upon Southwest's proprietary rights, and is confusing and misleading to Southwest's customers.

Almost all of that seems to be complete bullshit. While it is true that SWMonkey was using Southwest's name, it was doing so to correctly identify that its service helped you save money when flying Southwest. That's known as nominative fair use (using someone's trademarks to correctly identify them). The idea that it was "confusing and misleading" is pure hogwash. Since the entire point of the site was to help you save money on Southwest, it's ludicrous to suggest that anyone would be confused into believing that the site was run by, or even blessed by, Southwest.

At first, SWMonkey put up a perhaps ill-advised blog post (prior to having a lawyer review it) insisting they weren't going to be intimidated and spouting some slightly confused legal theories. That resulted in more legal threats and eventually the decision to stop operating the service. In shutting off the service, they noted that they had made a grand total of $45 in the few weeks that the service operated -- meaning that a grand total of 15 people had successfully used the service.

This was bad enough, and you would think that Southwest's lawyers could be happy that the thousands of dollars in legal fees they had spent in angrily going after this cool project and had stopped a couple of guys from making any more than their $45. But, no. Southwest sent an even angrier cease and desist after the site had stopped offering its service. Now the complaint was that even though SWMonkey was no longer working, it had dared to leave the non-working site up. I'm not kidding.

Despite a series of correspondence over the past week, Southwest is surprised and disappointed that your clients are not willing to completely shut down the Website. It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here.

Part of the anger appears to be that, in closing the site, SWMonkey also linked to a tool on Github that would allow those with the technical knowhow to monitor changes in Southwest prices. The tool does not appear to have been created by SWMonkey. And, notably, at some point in the past few weeks, that tool has disappeared from Github. And, no matter what, all SWMonkey did was link to it.

Not only that, but the bumptious legal threat includes vague claims of possible criminal violations for leaving the website up.

That is pretty ridiculous, and the guys behind SWMonkey said so:

They want us to “cease operation of the website” completely. Why? We are not scraping their site anymore. We are not infringing on their copyrights or trademarks. We are nothing but a historical remnant of a really great service, and the links and blog posts that remain on our site are certainly not illegal.

SWMonkey is nothing more than an informational page and Southwest just sent us a cease & desist letter demanding that we disappear. It seems to me that Southwest's only goal here is to limit our freedom of speech, because at this point, that's literally all we have. After reading and rereading their letter, I can't find a single allegation with any basis. "Obvious legal risks"!? What obvious legal risks? We already disabled the service. They mention that the revised form of the site has issues, and imply that they can come after us for violating Texas criminal law, trespassing, civil conspiracy, and unjust enrichment. I would refute these claims by reminding them that not only are we not violating any Terms, we are not accessing the southwest.com website, and we are not even pursuing this as a commercial venture. We just felt that our users should know why a site that they trusted to share credit card and flight information with, has suddenly shut down their service.

SWMonkey's lawyer, Charles Roberts, responded to Southwest explaining why their takedown demands were bullshit:

At the top of page two, you indicate that a "revised form" of the website is being maintained which "raises additional issues." Without offering a clue about what you regard as those additional issues, you mention that Southwest, in prior litigation, has pursued claims for violation of Texas Criminal statutes, trespass, civil conspiracy, and unjust enrichment. As an aside, I could find no private right of action for Texas Penal Code §33.02; indeed, quite the contrary appears to be the case. See Hodson v. Moore, Civil Action No. 2:15-CV-453 (S.D. Tex. Sep. 23, 2016) ("However, the Texas Penal Code does not create a private cause of action. Aguilar v. Chastain, 923 S.W.2d 740, 745.... Further, I note that it is a violation of the Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter. See Rule 4.04(b)(1). It remains unclear whether the causes of action you reference at the top of page two of your letter refer to the functional website swmonkey.com, or the currently disabled version of the website, or are made merely to instill fear. Please clarify.

You then turn to Southwest's trademark claims. Again, it is unclear whether you are referencing the former version of the website or the disabled version. Regardless, the website swmonkey.com does not now, nor has it ever, violated Southwest's trademark rights. Any use of the word "Southwest" on the swmonkey.com website qualifies as nominative fair use in that it merely refers to your client. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526 (5th Cir. 1998). Further, because of the nature of the service offered in the prior version of swmonkey.com, it would be virtually impossible for one to assume that the services were being offered by, sponsored by, or affiliated with your client. As a further precaution, a disclaimer appeared (and continues to appear) at the bottom of the website placing users on notice that "SWMonkey is not affiliated with Southwest Airlines or any of its partners in any way." Given that swmonkey.com is no longer being used to offer any commercial service, we are perplexed as to why Southwest is insisting that the "entire website" be taken down. It would appear that Southwest is merely trying to use the legal system to curtail Roundpipe's free speech rights.

The current swmonkey.com website is even further removed from trademark infringement than the Southwest virtual airline website at swavirtual.com which I previously brought to your attention. Given that Southwest has acquiesced in the existence of swavirtual.com for the past nine years, I do think a court would be sympathetic to your arguments that swmonkey.com is creating consumer infringement.

Finally, you suggest that Southwest will take formal action for Roundpipe's prior alleged violation of Southwest's Terms and Conditions (based on conduct which has ceased) unless Roundpipe complies with all of Southwest's demands. Given that Roundpipe is no longer in violation with Southwest's Terms and Conditions, the demands in your letter seem to be little more than legal extortion.

Soon after that, The Outline published a pretty brutal takedown of Southwest's obnoxious bullying, entitled How Southwest Airlines kills startups that monitor its prices.

And, with that... one hoped it was over. But nope. The lawyers and bullies at Southwest decided to move ahead and sue SWMonkey and its two founders earlier this month. The actual complaint is totally insane. But before we get to just how terrible and ridiculous the complaint is, let's just remind people of this:

Southwest Airlines decided to sue a couple of guys who had ALREADY SHUT DOWN THEIR SERVICE which helped more people enjoy Southwest Airlines, and from which they'd only made $45, because they left the site up explaining why they shut down the service.

That's fucked up. And that's why I have no interest in flying Southwest Airlines ever again. And I can assure you I spend a lot more than $45 on Southwest.

But let's get into the actual lawsuit. Claim one is breach of contract. What contract? The complaint argues that by merely accessing Southwest's site, they have formed a "contract" with Southwest on the basis of Southwest's terms of service. This is a very twisted (and incorrect) view of contract theory. While there are some (unfortunately) mixed rulings in the courts regarding "clickthrough" or "browsewrap" contracts, this is a particularly ridiculous argument, especially considering that they weren't even buying tickets on Southwest's website -- just gathering the data. Southwest Airlines has every right to use technological means to try to block SWMonkey, but to sue them for "breach of contract"? Come on. Even worse, Southwest falsely claims that it "has been and will continue to be damaged as the result of Defendant's breach of the User Agreement." That's complete nonsense. The guys shut down the service. There is no continuing damage at all -- other than the damage to Southwest's reputation for filing this bullshit lawsuit.

From here, we'll jump to claim five before going back to the others, because it's similar to claim one. This is an infamous CFAA claim. For many, many, many years we've written about how the CFAA -- a law designed to be used against computer hacking -- has been twisted and abused to go after people for merely violating a terms of service. Thankfully, back in 2012, courts ruled that merely violating a terms of service does not automatically make it a CFAA violation. Similarly, just last year a court ruled that scraping of publicly accessible data is also not a CFAA violation. Those ruling are in different circuits, so not binding in Texas where Southwest filed, but still.

The one case that Southwest has that does kinda, maybe support its CFAA claim is the awful decision from 2016 in the Facebook v. Power case, where the court said that it can be a CFAA violation if you keep scraping after a cease and desist letter has been sent. Again, we think that's an incorrect reading of the law -- but even if it is how the courts are now reading the CFAA it should not apply here because SWMonkey STOPPED SCRAPING after receiving the cease and desist. At worst, Southwest could argue that they kept scraping for another week while they reviewed things with a lawyer, before deciding to stop offering the service. But after a legal review, they shut it down.

But, that's not what you'd get from reading the bullshit claims from Southwest:

Upon information and belief, Defendants have intentionally accessed and continues to access Southwest’s computers without authorization or in excess of authorized access, and through interstate communication, obtained information from Southwest’s computers in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C).

Defendants’ unauthorized access of a protected computer has caused damage and is continuing to cause damage to Southwest, including loss arising from the cost of responding to and investigating Defendants’ unauthorized access, which has amounted in an aggregated loss of at least $5,000 during a one-year period.

Defendants’ conduct has harmed and will continue to harm Southwest. As a result, Southwest has suffered and will continue to suffer losses and irreparable injury, in amounts not yet ascertained.

Southwest’s remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant.

What a load of crap. Remember, the service made all of $45 and then was turned off. The only thing left now is the website. To claim that it's causing all this damage and "will continue to harm Southwest" is complete and utter bullshit. Southwest spent nearly 10x more for just the filing fee alone on this lawsuit than SWMonkey made in the two or so weeks that its site operated.

A bunch of the claims are basically variations on trademark infringement. Again, as noted above, SWMonkey's use of the term "Southwest" was clearly nominative fair use. Incredibly, Southwest feels the need to highlight a whole bunch of other trademarks it holds, even though SWMonkey doesn't make use of any of them. This includes things like "Southwest Cargo," "SWABIZ," and "SWACARGO.COM." The whole point of this seems to be to flood the judge in the case with nonsense about "we own trademarks!" even if those trademarks are not used at all by SWMonkey.

There's also a claim of "unfair competition" which... also appears to be total nonsense. The site was not in competition with Southwest. It was designed to make Southwest's ticketing a better experience for fliers. And, this may be my favorite line in the lawsuit:

In addition, Southwest has suffered and will continue to suffer losses and irreparable injury to its business reputation and goodwill.

WHAT? First off, the site itself created no harm to Southwest's business reputation or goodwill. Instead, it actually reminded people that Southwest has a pretty awesome policy of letting fliers exchange tickets at no extra cost. That's a kind of cool business model choice that Southwest Airlines made. If it doesn't like people actually using that offer, then it should stop offering it.

And, more to the point: what is harming Southwest's business reputation and goodwill more? A site that helped fliers get cheaper tickets by properly using Southwest's own policies or Southwest filing a bullshit lawsuit with a ton of bogus claims against a small website that had already ceased offering the service Southwest objected to? I've already stated that this lawsuit has convinced me to stop flying Southwest. The SWMonkey site probably would have made me fly Southwest more.

Count six then involves "violations of Texas Penal Code §33.02" though, tellingly, refuses to detail what those violations are. 33.02 appears to be more or less a state version of the CFAA. But only the criminal parts. Perhaps I'm missing something in reading the code, but there does not (at first glance) appear to be a civil component. And yet, Southwest still includes it in the lawsuit -- despite the warning from SWMonkey's lawyer that it is a violation of Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter.

In short, almost everything about this lawsuit is complete bullshit and it makes Southwest -- whose entire reputation is built on its consumer friendly policies -- look like complete and utter assholes. There is no way around this. Southwest had already bullied these two guys into shutting down what appeared to be a useful service that helped Southwest customers make use of Southwest's own stated policies. And then, after the service was shut down, still filed a completely bullshit lawsuit, with a bunch of bogus claims, falsely stating that the service was still running, despite knowing that was false.

Southwest, in the lawsuit, says that SWMonkey continues to harm its reputation. That is only true so far as the fact that Southwest decided to file this totally bullshit lawsuit over the no longer working SWMonkey website. Southwest and its lawyers should feel ashamed -- and anyone who flies Southwest ought to consider whether this is the kind of company they want to give money to.


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  • identicon
    Anonymous Coward, 19 Jan 2018 @ 12:03pm

    One time I ate a Southwest eggroll despite warnings that they were spicy. I made sure I'd only have one to make sure it was actually spicy then stopped, but wouldn't you know it, it burned my ass for days afterward.

    I'm not sure what my point is here but I'm pretty sure the Southwest eggheads are butthurt.

    reply to this | link to this | view in chronology ]

  • icon
    Chris ODonnell (profile), 19 Jan 2018 @ 12:10pm

    The Github open source code to monitor Southwest fares is still available. I think maybe they just typo'ed the link.

    https://github.com/gilby125/swa-dashboard

    reply to this | link to this | view in chronology ]

  • identicon
    Another Anonymous Coward, 19 Jan 2018 @ 12:28pm

    Uh Oh!

    Incoming lawyer letters from Southwest in

    3

    2

    1

    .
    .
    .

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jan 2018 @ 12:32pm

    Problem with the airlines is the same problem with the telecom companies. There aren't very many of them available, and they're pretty much all shit. Southwest is a legal bully. United has the cops beat people for sitting in the seats they paid for.

    I already drive when I can because I don't feel like dealing with the TSA treating me like a fucking convict. For those times when I have to fly, I'm really pretty much stuck trying to pick the best of the worst.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 19 Jan 2018 @ 2:05pm

      Re:

      I recently moved, and drove 1800 miles in 3 days rather than fly. It was worth it to avoid the airlines and their bullshit, be it their own or the government's.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jan 2018 @ 2:38pm

        Re: Re:

        Plus you get all the sights and stops of a vacation!

        reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 22 Jan 2018 @ 2:18am

        Re: Re:

        The CBP wants to have a chat with you.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 22 Jan 2018 @ 4:13am

          Coming soon, to a highway near you...

          Travel via airplane: 'Criminals, terrorists and commies fly, you better believe that's suspicious and you're going to be treated like a suspect until you can demonstrate your innocence to our satisfaction(we'll still watch you afterwards of course, because clearly you're guilty of something even if we didn't catch you the first time)!'

          Travel via car to avoid traveling via airplane: 'Only a criminal-terrorist-commie would ever even want to avoid perfectly reasonable security checks, that is more than enough justification for us to search through everything you have, and search through the records to find the obvious crimes you are trying to hide!'

          (Yet again, I wish this was entirely parody, rather than sarcasm based upon what I have no doubt certain agencies would dearly love to implement.)

          reply to this | link to this | view in chronology ]

  • icon
    aerinai (profile), 19 Jan 2018 @ 12:32pm

    Once again with feeling

    Just because a company acts like a jackass when trying to bully somebody into shutting up doesn't give them the right to then sue them for making themselves look bad...

    That is quite literally what happened.

    Southwest: "Take down your site... you keep posting about how we were dicks to you."

    SWMonkey: "No, I have this thing called the First Amendment. Ever hear of it?"

    Southwest: "I have these things called 'lawyers' who don't give two shits about the First Amendment... prepare your asses for bankruptcy because you are making us look bad at how we handled this situation! #merica"

    So yeah... definitely no reason to have a federal SLAPP law to shut this lawsuit down. Pretty sure the system works as intended; make corporations the arbiters of speech because they have money, power, and little else to do.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jan 2018 @ 9:44pm

      Re: Once again with feeling

      people are just people.
      corporations are PEOPLE.
      PEOPLE > people = PEOPLE rule and people lose.

      reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 19 Jan 2018 @ 12:36pm

    Much anger, I sense

    There's an unusual amount of bold up there.

    Also,

    It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here.

    I guess it's time to shut down the entire Internet, given the obvious legal risks here.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jan 2018 @ 7:49pm

      Re: Much anger, I sense

      "I guess it's time to shut down the entire Internet, given the obvious legal risks here."

      I think that is their game plan

      reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 19 Jan 2018 @ 1:09pm

    Wow. I’ve seen a lot of dumb lawsuits on this website, but this is one of the most inexplicable. Why would a company sue a website after it’s already complied with a C&D? There are so many blatant lies in the filing it’s crazy. And this is coming from an airline that prides itself in being customer-friendly? Between the attempt at censorship, blatant lies, and trademark abuse, plus the underdog angle, it’s like they’re begging to be Streisanded.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 19 Jan 2018 @ 2:51pm

    'Southwest has suffered and will continue to suffer losses and irreparable injury'

    And in the true American way, they are refusing to accept their actions are causing these losses and injuries. Courts aren't the proper forum for trying to others accountable for your ill advised actions.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Jan 2018 @ 3:38pm

    "Southwest doesn't share its shares", eh?

    Read-proofing win.

    Anyhoo, what's happened to your assertion that corporations can exercise totally arbitrary control over who uses their site? Seems to have been just tossed aside when doesn't fit the point you want to make.

    In my rational integrated view: persons, meaning what lawyers call "natural" persons, have a right to use any web site so long as conform to common law, while "corporate persons", those fictions made by lawyers have no rights at all, and certainly not to force another corporation to supply it with data.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 19 Jan 2018 @ 4:23pm

      Re: "Southwest doesn't share its shares", eh?

      Seems to me that you need to read for comprehension rather than thinking that, every time you see two certain things mentioned together, you have some sort of clever gotcha.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 19 Jan 2018 @ 5:21pm

      Re: "Southwest doesn't share its shares", eh?

      Anyhoo, what's happened to your assertion that corporations can exercise totally arbitrary control over who uses their site? Seems to have been just tossed aside when doesn't fit the point you want to make.

      I recognize that you're trolling, but to clarify for anyone else, yes, sites do have control over who they let use their sites. But that "control" is limited to their own technical capabilities. Using state power (i.e., lawsuits in the courts) to block or punish such activity is never anything I've condoned. As I said IN THIS POST, Southwest is free to put in place technical blocks. But that's different from what they've done.

      I apologize if that wasn't clear, but I'm guessing it was perfectly clear and you, as per usual, chose to misrepresent it.

      reply to this | link to this | view in chronology ]

  • icon
    radarmonkey (profile), 19 Jan 2018 @ 8:03pm

    Is a time-machine involved?

    Blockquote Defendants’ unauthorized access of a protected computer has caused damage and is continuing to cause damage to Southwest, including loss arising from the cost of responding to and investigating Defendants’ unauthorized access, which has amounted in an aggregated loss of at least $5,000 during a one-year period.

    If the site only launched November (2 months ago), how can they have a one-year aggregated loss?

    Also, how is this any different that TripIt Pro, that checks for lower fares?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jan 2018 @ 4:51am

    swmonkey.com is back

    Sorry, premature link. Read it wrong.

    reply to this | link to this | view in chronology ]

  • icon
    Scott S. (profile), 20 Jan 2018 @ 11:56am

    Herb Kelleher

    From what I know of Herb Kelleher, co-founder of Southwest Airlines, this would NOT be happening if he was still running the place.

    reply to this | link to this | view in chronology ]

    • identicon
      Lynn, 21 Jan 2018 @ 8:57am

      Re: Herb Kelleher

      What you know about Herb Kelleher is obviously not much. He would be doing the same thing. He is a very shrewd businessman. In fact it would not surprise me if they still go to him for counsel just as others companies do with past execs.

      reply to this | link to this | view in chronology ]

    • identicon
      Jeremy, 2 Feb 2018 @ 7:44am

      Re: Herb Kelleher

      True, unfortunately nowadays CEO's only care about shareholders and the bottom line. In some cases, if they do what is right, it could get them ousted.

      reply to this | link to this | view in chronology ]

    • identicon
      Nathan, 13 Jul 2018 @ 11:13am

      Re: Herb Kelleher

      Your right about Herb. And I believe it will only get worse.
      These people were only helping others to get the best deal.
      But it's all about money.
      SW is even going to stop serving peanuts starting Aug.1!

      reply to this | link to this | view in chronology ]

  • icon
    Scott S. (profile), 21 Jan 2018 @ 11:21am

    Herb Kelleher vs Gary Kelly

    You could be right. Unfortunately, most large corporations seem to engage in some form of bullying. But you don't give any examples of Southwest having a history of bullying small businesses. My understanding is that Herb Kelleher is against and stood-up to corporate bullies. Either way, why is current CEO Gary Kelly allowing Southwest to behave this way under his watch?

    reply to this | link to this | view in chronology ]

    • identicon
      Lynn, 22 Jan 2018 @ 7:01am

      Re: Herb Kelleher vs Gary Kelly

      I never said that Southwest bullied anyone. What many think is bullying is just SOP for businesses.
      I like Mike's commentary usually, but he just sounds really
      POed and is expressing some legal issues that are wrong.
      Where did you get your understanding that Kelleher is against it? He is still very close to the board even at his age. I don't understand what is the problem with Southwest's behavior other than not being popular with some people. It is just SOP.

      reply to this | link to this | view in chronology ]

    • identicon
      PETER, 2 Apr 2018 @ 9:30am

      Re: Herb Kelleher vs Gary Kelly

      Nobody cares or listens but keep up the good work!

      Happy 20th by the way. Wishing you many more.

      reply to this | link to this | view in chronology ]

  • identicon
    Justin, 28 Jan 2018 @ 9:59pm

    While I generally dislike this sort of thing...

    I do feel inclined to note that SWA has not gone into the terrible service-horrible flight domain that virtually all other airlines have, and so in order to combat losses from that I would expect a little bit of this sort of thing out of them.

    reply to this | link to this | view in chronology ]


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