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.
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Filed Under: data, flights, prices, scraping, sharing
Companies: kiwi, southwest
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UNOPPOSED
Key line in the injunction:
Further, Kiwi.com does not oppose entry of a permanent injunction.
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"Kiwi.com’s unauthorized sales of Southwest flights poses a significant disruption to its customer operations"
Because allowing customers to purchase the flights that meet their needs is a HORRIBLE thing and we should crush it.
So what if the data is put out into the public, we have this amazing click wrap terms that make it a crime & now every company is going to start putting stupid terms into their TOS and flood courts with bullshit cases that shouldn't exist except for 1 old cranky judge who demanded kiwi.com get of Southwests lawn & not inform people of information that they could get themselves, admittedly not in a useful way because making it harder makes southwest money.
So if I read a couple lines out of a newspaper over someones shoulder, does this mean I owe the publisher money & the poor bastard who bought & was reading the paper needs to invest in a shield to protect others from seeing the information they've published to the public?
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Re:
I got curious, as sometimes happens, and read some more travel centric sites and I discovered something I was unaware of before.
Apparently if you skiplag a flight, there is extra costs for the airline. Apparently for ever person who gets off a flight, they have to pay the terminal a fee... you have people jumping planes early and that is a fee they have to pay not built into the original ticket.
(Maybe, I did not find much detail and the entire fscking industry thrives on hidden fees & stupidity).
So rather than fight with the terminal companies to get better terms to satisfy consumer demand, legal warfare is the better option in their minds.
Given that I can recall at various points battles at different terminals for better gates, positioning, etc etc... this is not insignificant cash in play.
Of course they have always done it this way so there is no reason to consider perhaps its not the best way and that change might be needed.
Now knowing that there is a per person fee based on someone leaving a flight unexpectedly I can understand a bit better.
One does wonder how much the fee actually is (I mean this is an industry that thought a full can of soda cost to much).
There is some sort of insanity at play here, I mean if someone skiplags do they still have to pay for that body at the final terminal that never arrives?
People want cheaper flights, the fact that just stepping off a plane on a layover can save them money on flying should be seen as a broken system.
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Re:
"Because allowing customers to purchase the flights that meet their needs is a HORRIBLE thing and we should crush it."
Well, yeah. If a site is telling people that they can get the flights cheaper, then that disrupts the part of the business model that depends on subsidising those cheaper seats by fleecing those people through the normal channels. You can't base a business model on loading people with fees and forcing high ticket prices if someone else is there telling them there's a perfectly good seat at normal prices available.
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'Their prices are HOW much?!'
If a company telling people what the prices are of your product and offering them a way to buy it without having to go through you are a serious threat to your business the other company is probably not the source of the problem.
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We could all get together, create one reservation a day on Southwest, post that to a database on AWS, delete the reservation, and just help the Streisand effect along. If it went viral, for whatever idiotic reason, Southwest get what they deserve. I quit flying them many years ago.
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Re:
You could easily create a chrome plug in to this effect. Even better post to an uncontrolled blockchain the city codes faith times and price paid.
Now southwest needs to go and try to sue every customer over this.
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From the permanent injunction:
Really? Out of all the things you can call this practice, you can't call the sale "unauthorized". That would be like if I created a site that enabled you to search for any DVD or Blu-ray release, scraped a bunch of online store fronts, showed you which store had the movie for the cheapest price (assuming the stores sold a legally acquired copy for copyright purposes), and then have the studio sue me for people buying from a third party site because it was cheaper than their own. The same example goes for literally any other product or service where copyright doesn't even enter the equation.
At the end of the day, if someone bought a Southwest flight from Kiwi.com, it would only be good for Southwest's actual flight. It might not make Southwest happy that they can't charge higher for that specific customer, but it shouldn't be illegal, and it certainly isn't an unauthorized sale. And terms of service are contracts of adhesion, so if Southwest can write their TOS in a way that gives them an anticompetitive advantage like that, then the contract should be looked into legally. I don't know for sure if they apply here, but I'm pretty sure you can't contract your way out of unfair competition laws.
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I thought putting prices of a product behind a logwall...
...was bad enough. See this: https://www.reddit.com/r/assholedesign/comments/6pmq26/login_to_view_price/
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Unpopular Opinion
As as consumer, I may not like Southwest's tactics, but as a general principal, this seems reasonable.
Put in a different context: if I were a store owner, it would be wrong if I demanded every person who entered my store to agree to never post reviews of my store online. I can, though, see a person writing down all my SKUs and prices and demand they cease and leave my store. It may be bad business, but it is my right.
The first is sneakwrap, 'you are obligated to...', the second is simple property rights of 'we do not permit this activity, please leave'
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Re: Unpopular Opinion
This is not reasonable at all, I'm not sure if the courts understand what kind of bag of worms they just created on this. That means any price watch, price grabber, etc... Any site that has any data on items being sold can now be suid. Any site that data grabs can be affected by this. Now, this might be good or bad depending on your point of you but it will cause issues with any price watch site even sites that does review and label price on the reviews. the list can go on and on.
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Re: Re: Unpopular Opinion
If price-comparison sites aren’t given express permission, they are at least given tacit permission by any retailer that provides for an affiliate/linking scheme.
I bet that any retailer that doesn’t want to be on the comparison sites isn’t.
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Re: Unpopular Opinion
You may be able to eject the person writing down your prices.
The rule is different for common carriers. Their price lists, known as tarriffs, are supposed to be publicly available for inspection. Indeed, for those operating between states, they are generally going to have to file them with the ICC.
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Re: Re: Unpopular Opinion
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Re: Re: Unpopular Opinion
"The rule is different for common carriers. Their price lists, known as tarriffs, are supposed to be publicly available for inspection. Indeed, for those operating between states, they are generally going to have to file them with the ICC."
you mean the Interstate Commerce Commission? that got disbanded way back in '95. https://en.wikipedia.org/wiki/Interstate_Commerce_Commission
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TOS
"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? "
I'll go you one better and say "that by reading this site you agree to place all of Southwest Airlines' data into the public domain".
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Re: TOS
Most of the people wo read that line do not have the legal right to place SW Flights' data in the public domain. This phrasing creates more problems than it solves.
You might want to take a look at Cory Doctorow's disclaimer at pluralistic.net (in the side column, under Read Carefully)...
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That’s quite an injunction. Not only is it a loss for Kiwi.com, but also a strikingly complete capitulation that reminds me of coerced political prisoner “confessions”.
Southwest might have had some serious leverage to force this ankle-grabber of an injunction though. Just guessing, but Southwest was probably very likely to prevail on the sales/brokering issue, subjecting Kiwi.com to A380-size financial penalties and reparations. Also, their (presumed) defiance of the T&C was apparently blatant.
Even if the T&C-defying data-scraping might have been a winner for Kiwi.com, they were not an authorized sales agent and regardless of what some might consider fair, those unauthorized sales probably doomed Kiwi.com’s case since Southwest could plausibly or convincingly demonstrate economic damage of one kind of another.
Kiwi.com could have been held to a higher standard regarding the T&Cs as well. It’s excusable for a reasonable consumer user to fail to fully grasp them, yet also reasonable to expect T&C due diligence on the part of a business that plans to commercially market covered data.
One of those “wrong on the issue, right on the law” kind of things, maybe.
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God forbid that people know what Southwest flights cost relative to other flights. The funny thing is, they tend to be cheaper. What a bizarre behavior for a company.
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So what I'm getting from this, is that Southwest would rather that Kiwi's users not buy flights on Southwest.
No problem.
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Re:
I wonder how long it will be before Southwest starts complaining about Kiwi's "Brutal response" to the court judgement.
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Sucks to be Southwest
I look for all of my flights on Google Flights. Southwest doesn't show up on there, so I never fly Southwest. I'm not going to waste my time hunting down their fares when I can view everyone else's fares in one spot. Besides, I don't fly cattle class.
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"... because there is an expectation that parties to contracts will honor their contractual obligations"
https://www.usatoday.com/story/travel/airline-news/2022/01/06/southwest-airlines-f light-cancellations-covid/9116618002/
"In total, the airline has canceled nearly 1,200 flights in two days-plus, more than any U.S. carrier. "
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Right, airline companies are so famous for honoring their contracts.
Which incidentally always include a line that they are allowed to not honor their contracts. Because overbooking is a thing.
It's like I promise to not punch you in the face unless I really want to punch you in the face.
Contracts and TOS these days are so unbalanced, I'm amazed they are worth the paper they are printed on. (Oh right, it's all paperless now.)
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In scraping
If you post it publicly it should be legal to look at.
Data scraping for any reason should on its own be legal. Be if face images or flight tickets.
Once it’s visible it’s visible.
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Terms
I'm not saying this is a good outcome for the public, but perhaps it's legally the correct one. In order to say that Southwest should not be able to prohibit this activity, you have to either claim clickwrap terms of service are not a legitimate contract at all (something that would have far reaching consequences and at least isn't obviously correct), or come up with a consistent set of guidelines or framework of reasoning for why some obligations should be enforceable and others should not. It's satisfying to say "they shouldn't be able to do that!" but much harder to explain why.
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