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 Southwest’s information…but rather had extracted it from another site, Kiwi.com, which in turn had retrieved 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 distribute 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 Use that by reading this site, you agree to place all copyrighted works you create in the public domain?

The Southwest Terms and Conditions constitute a valid and binding contract, and Kiwi.com has 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 it, among other things, collected and extracted data from Southwest’s website, published Southwest’s flight schedules and fares on Kiwi.com, used Southwest’s website for Kiwi.com’s own business purposes, and brokering and selling Southwest flights without authorization;

Violations of the Terms and Conditions by Kiwi.com have caused Southwest irreparable harm, including loss of traffic to its website, customer service charges, operational disruptions, and damage to its reputation; and

After considering the balance of harms, the threat of harm to Southwest if the injunction were denied outweighed the harm to Kiwi.com because, among other things, unauthorized sales of Southwest flights by Kiwi.com significantly disrupt operations of its customers and the public interests would be served if an injunction were granted because the parties to the contracts are expected to 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 honestly, I don’t I don’t see how that could be 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, and their officers, agents, servants, employees and attorneys and all other persons acting in concert or in active participation with them, are permanently prohibited, restricted and permanently prohibited from: (1) harvesting, mining or extracting any information from Southwest’s website, www.southwest.com, or its proprietary servers, including Southwest’s flight and fare information; (2) publish Southwest flight or fare information on the kiwi.com website, through its mobile applications or elsewhere; (3) otherwise access and use the Southwest Website and Data for business purposes; (4) sell flights to the southwest; and (5) commit any other act in violation of Southwest’s Terms and Conditions

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

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Filed under: data, theft, price, scraping, sharing
Companies: kiwi, southwest

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