Court says travel company cannot tell others how much flights to the South West cost

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from let’s go department

A few months ago, we wrote about Southwest Airlines’ ridiculously adversarial legal strategy against aggregators who allegedly pull flight and price information 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 was not violating Southwest’s terms of service since it was not harvesting the information from Southwest… but rather had harvested it from another site, Kiwi.com, which in turn had harvested it from Southwest.com.

Just the fact that we argue about whether or not it is legal to recover data from publicly accessible websites should alert you to the fact that these lawsuits are absurd. Factual data – such as flight routes and prices – is not protected by any intellectual property and if you publish it, people can (and should!) copy and spread it elsewhere. But, sadly, the court ruled against Kiwi.com last fall, granting Southwest an injunction saying Kiwi can no longer scrape its site for data. Realizing he was in trouble, it seems Kiwi gave in and settled the lawsuit agreeing to no longer collect data on Southwest flights.

In view of this, the court has now makes the preliminary injunction a permanent injunction prohibiting Kiwi and any of its employees from deleting data from Southwest’s site. The court assumes that Southwest can simply say in its terms of service that you cannot copy data from its website and that is a valid contract. That looks dangerously empowering for terms of service. May I add to Techdirt’s Terms of Service that by reading this site, you agree to place all copyrighted works you create in the public domain?

Southwest’s Terms and Conditions constitute a valid and enforceable contract, and Kiwi.com
accepted these terms and conditions when using the Southwest website with knowledge of the
Terms and conditions;

Kiwi.com violated the Terms and Conditions when, among other things, it harvested
and pulls data from Southwest’s website, publishes Southwest’s flight schedules and fares on
Kiwi.com, used the Southwest website for Kiwi.com’s own business purposes and traded
and sold Southwest flights without permission;

Violations of terms and conditions by Kiwi.com hurt Southwest
irreparable harm, including loss of website traffic, customer service charges, operational issues
disruption and reputational damage; and

After considering the balance of damages, the threat of damage to Southwest if the
the injunction was denied outweighed the harm to Kiwi.com because, among other things, Kiwi.com
unauthorized sales of Southwest flights significantly disrupt its customers’ operations,
and the public interest would be served if an injunction were granted because there is an expectation
that the parties to the contracts will honor their contractual obligations.

Those last two paragraphs also seem completely absurd. If people find it easier to use a third-party service than your own site, well, that should mean you should work to improve your own site, not sue them. Many things lead to “loss of traffic” on a website, including better service from a competitor. But we’re not saying it violates the law.

Anyway, because of this, no one associated with Kiwi.com can ever “pull” information from Southwest’s website or even post Southwest’s flight data on their website and I honestly don’t I don’t see how that is possibly legal. Data is data. You shouldn’t be able to ban a company from publishing data.

IT IS HEREBY ORDERED that Kiwi.com, Inc. and Kiwi.com sro, together with their
officers, agents, servants, employees and attorneys and all other acting persons who are in business
concert or participation with them, are definitely prohibited, restricted and enjoined
continuously to: (1) harvest, mine or extract information from the Southwest website,
www.southwest.com, or its proprietary servers, including Southwest flight and fare information;
(2) publish Southwest flight or fare information on the kiwi.com website, through its
applications or elsewhere; (3) otherwise access and use the Southwest Website and Data for any purpose
commercial purpose; (4) sell flights to the southwest; and (5) commit any other act in violation
Southwest Terms and Conditions

What an unfortunate state of events – but also a very clear reminder that Southwest is anti-consumer in its practices.

Filed under: data, theft, price, scraping, sharing

Companies: kiwi, southwest

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