Southwest's Bizarrely Antagonistic Lawsuit To Stop Consumers From Finding Better Deals
from the throwing-away-goodwill dept
This lawsuit is a couple months old, but I'm clearing out some older stories, and thought it was worth writing up still. Southwest Airlines is regularly ranked as a favorite of consumers. While it's generally relatively low cost as airlines go, it has kept up a reputation of stellar customer service -- contrary to the reputations of some other low cost airlines. However, earlier this year, Southwest not only decided to be particularly anti-consumer, but to go legal about it. The company decided to sue the site Skiplagged.
If you've never seen it, Skiplagged is a neat service -- effectively finding secret cheaper fares by exposing some of the hidden (stupid) secrets of airline fares. I discovered it years ago, after writing about some sketchy airline pricing tricks involving multi-city travel. The secret that Skiplagged realized is that you can often find cheaper flights by booking a multi-leg trip, and not taking all the flights. As Skiplagged sums it up: "As an example, a traveler who wants to go to San Francisco from New York would book a flight that is ticketed for NYC -> San Fran -> Seattle and end their travel once they arrive in San Fran and skip the leg to Seattle."
This can create some pretty massive details, and like those sketchy scam ads say "this one weird trick... that the airlines hate" except that it actually works. And now Southwest has decided to go to court over it.
Now, it's important to note that unlike many other airlines, Southwest requires people to buy tickets via its own site, and refuses to have its fares offered on aggregation sites. It also has a long and somewhat unfortunate history of suing websites who try to improve on Southwest fares in some manner. A decade ago we wrote about Southwest going after sites that help flyers track their frequent flyer mileage, and a few years back, we wrote about a ridiculous lawsuit against a website that alerted Southwest flyers if they could change their ticket to a cheaper option after they booked a flight (since Southwest has a no-charge for changes policy). Unfortunately, after a court refused to dismiss that lawsuit under Texas's anti-SLAPP law, leading the site to effectively agree to shut down permanently.
Here, Southwest is claiming a sort of double-whammy -- saying that Skiplagged is getting data on Southwest flights via another company (who Southwest is already suing), Kiwi.com, and using those fares to find the skipped leg cheaper options (also referred to as "hidden city" tickets).
Southwest claims this violates basically all the laws: trademark violations, page scraping violations, unauthorized sales, unfair and deceptive practices and a few others as well.
On June 8, 2021, Southwest wrote a letter to Skiplagged from Texas, explaining that Skiplagged was violating the Southwest Terms & Conditions by scraping and/or using data scraped from Southwest.com, promoting “hidden city” tickets, and using Southwest’s trademarked heart logo to advertise the sale of tickets on Southwest Airlines without its authorization.
Southwest explained that Southwest had “the exclusive distribution rights to sell Southwest flights to the general public through the Southwest Website” and never authorized Skiplagged to display or sell its fares, display its trademark logos, publish its flight or fare data, or to use the Southwest Website for or in connection with offering any third-party product or service—or use Southwest’s trademarks in doing so.
Southwest further explained that Skiplagged was inducing Southwest customers to violate the Southwest Terms & Conditions and/or Contract of Carriage. Southwest included a complete copy of the Southwest Terms & Conditions, and the details of registered trademarks.
While they may have (unfortunately) a legal leg to stand on, all of this should be seen as crazy. It's not trademark infringement, as it's providing factual information about the flights themselves. They're not selling counterfeit flights. The flights are real and they're really provided by Southwest. Scraping of such public, factual information, should never be illegal. Southwest is putting that information out there, and it doesn't get to control how it's used. And the fact that Southwest doesn't want people to get off a flight too early is Southwest's problem. They set the prices that way and the fact that some people have figured out how to game that system shouldn't be someone else's problem. It's only Southwest's.
Basically all of this is Southwest enabling all of this to happen, but then suing because people who figured out how to actually use their systems, their prices, and their information in ways that Southwest doesn't like. That should never be a violation of the law.
The whole thing seems to be an abuse of the legal process to try to stop people from taking advantage of Southwest's data and flights in a way that Southwest does in fact offer, but in a manner in which Southwest would prefer they not be able to. That should never be illegal. If Southwest doesn't want people doing those hidden city flights, then it should fix its pricing. Or suck it up. Not sue. And, as some are noting, this very lawsuit seems to highlight how Southwest's "customer friendly" persona is bullshit. Look how far the company will go to block its "valued customers" from actually finding the cheapest possible flights that Southwest does in fact offer.
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Filed Under: air travel, hidden city, plane fares, plane tickets, promotion, reselling, scraping
Companies: skiplagged, southwest
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southwest may not have standing -- but I might
As a prospective passenger, I do not appreciate people who book flights they do not intend to travel on. It's no surprise when Southwest flights are full. It's no surprise at all when the cheaper tickets on a flight are sold out.
So a service that assists those who are booking flights they don't intend to travel on raise costs for real passengers and simultaneously lower revenue for the operator.
Maybe there's no legal basis for Southwest to sue. I for one wouldn't might if they changed the cancellation notice requirements to break the fake travelers' ability to save money.
I do agree with most of your points about trademark, etc. Lawyers seem to fell they have to throw everything conceivable against the wall hoping something will stick.
But still, somewhere in there both real passengers and Southwest are worse off when "hidden city" fake passengers profit by booking in bad faith.
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Re: southwest may not have standing -- but I might
All Southwest has to do is price trips "per leg". The fact that they do not is not the fault of what you call "fake passengers". In fact, if all the people scheduling trips took all of the legs of the trip, you would be no more inconvenienced than you are currently.
As for your claim that they are causing rates to be increased for you? What you are complaining about is that Southwest would have to stop subsidizing your trip on the backs of people who stop short.
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Re: Re: southwest may not have standing -- but I might
The next step of this game seems obvious enough: sell the unwanted legs to other passengers at a discount, thereby benefiting everyone (except Southwest). I'll bet Southwest won't actually allow that, taking advantage of everyone's (except John Gilmore's) willingness to show ID for no good reason.
The other obvious option is for the airlines to stop treating fares as a game, and run things as... a normal business, where buying more goods or services results in increased cost (though maybe decreased per-unit costs). But like grocery stores, banks, and casinos, they feel they can benefit from people who think they can "beat the house", if only they could get rid of those min-maxers by spinning the story that they're doing something unethical. Let's not forget it was airlines who started the modern points-game confusopoly way way back in the 1980s.
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Re: southwest may not have standing -- but I might
The customer already paid for the flight, whether they choose to sit in the seat or not. In fact, if the passenger does not board the flight, the airline is probably saving a little bit on fuel.
The real reason the carriers are upset is that passengers with more direct routes, which therefore should be lower priced, are subsidizing those with additional legs, which should be more expensive. And now these websites have discovered how to exploit the pricing model.
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Re: southwest may not have standing...
Your logic is flawed. But purchasing a multi-leg flight and skipping the last leg, I'm actually saving the airline money (in reduced fuel costs) and creating more space for other passengers (overhead bin space being premium real estate, everyone is happier if there's a little extra).
This in no way increases costs for other passengers. Nor does it reduce the operator's revenue.
If there exists any financial penalty to the operator at all, it is a self-imposed one that could be addressed by charging the same fare per leg as for direct flights between the same points.
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Re: southwest may not have standing -- but I might
I think you've missed the forest for the trees.
They aren't booking these trips & then stiffing the airline.
They purchase a flight from A to B to C, then get off the plane at B.
Because of how the airline prices things a direct flight from A to C is $$$ but doing A to B to C is only $$.
They do not then sue to demand back the C portion of the fare, they just got to where they wanted to go & saved a few bucks by paying for a longer trip they don't complete.
(perhaps airline pricing is stupid?)
The passengers aren't fake, they are real people who know this 1 simple trick that somehow makes it cheaper to book a longer flight that happens to go to where they want to on the way.
Southwest is worse off because they aren't able to price gouge every passenger on their flights.
Perhaps they should price things accurately and stop playing games?
That plane is going to go to A to B to C no matter how many people get off the plane at B, and people who only paid for tickets from A to B are getting charged more than people who cost the airline more than the people continuing onto C...
I fear you did not understand what this was & FSM help you if you did understand and still went corporate shill, because the hill you picked isn't even a molehill.
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Re: southwest may not have standing -- but I might
"It's no surprise at all when the cheaper tickets on a flight are sold out."
I'd argue that your problem there is that the airline is selling similar seats at more expensive prices than the ones nearby, rather than people buying seats they don't sit in, saving the airline on fuel costs.
"Southwest are worse off"
The only way they're worse off is that they lose the ability to upsell customers to premium charged services such as baggage, food, etc. If their business model depends on these things and they can't capitalise on just selling the actual seats, that's their problem.
The only real complaint you can have is if you can't get a seat at all on a particular flight due to "fake" bookings, but if your problem is with the variable charging and premium upselling, your problem is only with the airline.
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Re: southwest may not have standing -- but I might
They "raising costs for real passengers" by BUYING TICKETS? You're putting your feet up on THEIR seat and complaining THEY are stealing from YOU?!
Maybe it's true in some twisted sense, if you suppose the airline is charging a negative price for that seat. But maybe they're charging a negative price on the other plane instead. How would you know?
It would be more respectable to get in a fist fight with the lizard people who are using their camouflage to hide in the aisleways when your plane takes off. I think I saw one of them run into the cockpit...
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confused look
"This can create some pretty massive details"
not sure if is typo or my brain is failing to parse, both are valid answers.
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Re:
I was confused by that as well.
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Terms of Service
I'm not sure why this is so ridiculous, because of the terms of service violations.
Because, whether or not the information is the kind of public, factual information that isn't protected from dissemination by IP law, there's no law that says that Southwest has to provide that information free of contractual restrictions.
Contract law, as I understand it, says you can put before a person a one-sided printout, blank side up on the table, and say, "if you want to turn this piece of paper over, you agree not to repeat the information you find on the other side to anyone, even if it's a printout of Wikipedia," and that's an enforceable contract.
Or, similarly, "you can get my mail order catalog for free, but you have to promise not to publish the price list within it."
What's unenforceable about these contracts?
So, similarly, why can't Southwest put on its website, "if you interact with our fare database and make us serve you information, you can only use that information for yourself, and to purchase itineraries where you intend to fly every leg of a journey"?
Just to reiterate: why can't Southwest do this? Is there some conditions on being an air passenger carrier, or state or federal unfair trade practices law, or any other law or regulation that prevents contractual restriction of pricing data (i.e., "you only get to know the prices if you agree to the conditions under which we choose to publish them") only to end consumers who only buy itineraries Southwest wants to sell?
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Re: Terms of Service
Pumpkin.... do you think the CFAA is a good law too?
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Re: Re: Terms of Service
I think the CFAA (which, although Southwest did plead it in the Kiwi.com case in addition to the breach of contract claim, is arguably not applicable to TOS violations post-Van Buren v. US and may very well be dismissed) should be judged like any other addition to the basic law of contract; i.e., if you want to alter the conditions under which people bargain, you have to put forth a reason for additional regulation.
So, I can say that I think the CFAA is a bad law because it adds excessive civil and criminal penalties to conduct; there's no reason you need the "extra power" of the CFAA to enforce contract law.
But that "justify the law" principle is true for any proposed "solution" to Southwest's use of contract law to restrict Kiwi.com or Skiplagged from publishing its otherwise publishable fare information. You have to pass a law to change the basic principles of contract.
This is the converse of a complaint I often see with Techdirt's arguments against regulation of Google or Facebook or similar; that even though the "bigness" of the companies allow them to do something that "seems bad" for individual consumers or society at large, there's no reason the law should step in to stop it. The market will correct if the practice is "bad enough."
Southwest is a big company, but what's the special reason justifying us to prevent it from making the kind of contracts you and I could make with each other?
(You're not asking, but in case anyone else does, I think the IP claims are crap, but once again, trademark and copyright law are special extra statutes that add additional constraints on the ability to contract not present in the basic underlying theory of how/why contracts should be enforced.)
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Re: Terms of Service
The Capitalist Fundamentalists would be kind of put off if their vision of enforceable website terms of service ever really happened. They would be out on the street with their furniture arguing about whether that gray text at the bottom of the screen about deeding their house in exchange for the site's free news service really should have counted in court. In the end I'm sure they'd do the right thing and make one last use of their handgun rather than squatting illegally under a public bridge for the night.
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Re: Re: Terms of Service
That's kind of a "slippery slope" fallacy, isn't it?
Because "don't republish this information" is a lot less onerous a condition, especially to the individual consumer actually looking for tickets rather than trying to have some sort of middle-man or information business that doesn't buy tickets, than "lose your house."
Arguing about whether traditional principles of contract would find an extreme clickwrap enforceable (I would argue not) doesn't actually speak to why this particular bargain shouldn't be enforceable.
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Re: Terms of Service
The reason this fails is that the airline is a common carrier. Their prices are supposed to be contained in a tarriff, which is public information.
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"(Southwest) has kept up a reputation of stellar customer service..." Oh, really? -- Back in 2014, long before any notable pandemics, I chose Southwest for what should have been a basically hassle-free journey from Burbank to Portland and back, via Sacramento both ways, checking all of ONE piece of luggage. The so-called airline managed to lose track of that single checked piece BOTH ways. Retrieval of such was relatively easy in Portland. But then there was Burbank, on the return leg. My very first visit to the appropriate company office was quickly met by a rude, entitled young alleged-employee (probably some exec's nephew), who was too busy snorting lines in the back room, or whatever, to deal with my issue. He physically pushed me toward and partially out of the office door; I used my foot to wedge it, to remain open. He threatened to call the Barney Fife-Burbank cops; I dared him to do just that. At about that moment a female employee emerged from the back-room coke-palace, and reluctantly took down my info while I questioned the existence of nephew-boy. To cut to the chase, it was finally explained to me that the single-piece of luggage had remained on the flight, which continued on to Ontario--about a one-hour drive East of Burbank. It was further explained that the wandering luggage would have to remain on the plane due to "company policy", until it's return leg back to Burbank, and on to Sac'to, sometime the next morning. It was eventually delivered by a semi-sentient driver that next day, mid-afternoon. I've always found Alaska Airlines willing and able to provide good-to-excellent service up & down the Pacific coast; of course I now and forever will ONLY use Alaska. I have been shown that Southwest is a cheap, shitty, very badly-produced attempt at an "airline" operation, staffed by people who are that magic combination of droolingly stupid and ridiculously rude. (I was promised a "voucher" during a subsequent call to alleged-customer so-called "service", which of course never materialized.) I do live for the day Southwest painfully ceases to exist, thus throwing this inbred family of cave-people deservingly out in the streets without jobs or any means of financial support. Fly Alaska! And to hell with Southwest!
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Re:
They appear to be, at worst, top three in customer satisfaction and customer service specifically, your individual bad experience notwithstanding (anecdote vs data, etc).
https://www.smartertravel.com/best-and-worst-airlines-for-customer-service/
https://www.jdpowe r.com/business/press-releases/2021-north-america-airline-satisfaction-study
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Re: Re:
Customer satisfaction isn't an accurate measurement of a company in this case. I remember decades ago they took a hostile policy toward fat people, so obviously I never have been nor will be one of their customers to be filling out any forms.
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F Southwest
Southwest began service to Palm Springs. They've added nonstop flights between Palm Springs and Las Vegas. We wanted to have a long weekend in Vegas and thought we'd enjoy the quick flights. However, the cheapest flights on Southwest, for a flight that is less than 1 hour, is $500 round trip per person. It's only a 4 hour drive, which is likely just a few minutes more than what the flight would end up requiring once you consider Lyft to the airport, security, waiting, taxiing, flying, etc.
So, we're just going to drive to Vegas and enjoy the savings.
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eek not really a good idea
Having an industry background such as I do, booking using this is not particularly a good idea.
Southwest hasn't played the homeland security card yet on this as it would cause all kinds of people to scream, bad publicity unfair unconstitutional blah blah blah, but the second they do, all of this will collapse. Sorry, I know you don't want to hear that, but that's the way it is.
Kiwi won a court case with regards to RyanAir, but with the homeland stuff, that won't matter.
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thanks Southwest for publicizing a way to save $ on your flights
I'm not much into legal stuff, but I do like reading tech news. Thanks to Techdirt for posting this article. And many thanks to Southwest for the lawsuit, you have publicized a way to save $ on your flights. Do all of the airlines have a similar pricing model?
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Re: thanks Southwest for publicizing a way to save $ on your fli
It is at least common enough to have a name. They call it ``hidden city'' travel.
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