TOS Supports Injunction Against Web Scraping-Southwest Airlines v. Kiwi
Southwest asserts claims under the CFAA, the Texas computer crime statute, breach of contract, and trademark. The court previously denied Kiwi’s motion to dismiss, without much discussion of the merits.
Southwest relied on its breach of contract claim when requesting an injunction. Kiwi said it wasn’t bound by the terms because it did not assent to them, but the court is not persuaded. As alleged by Southwest, Kiwi purchased numerous tickets via Southwest’s digital platforms. The terms are presented next to the purchase button. In addition, Southwest sent Kiwi several cease and desist letters. As such, the court comes to the unremarkable conclusion that Kiwi is presumed to have actual knowledge of Southwest’s website terms.
The court also finds that Kiwi’s actions are likely to cause irreparable harm. Southwest likes to deal directly with its customers. When Kiwi acts as the intermediary, Southwest cannot communicate directly with its customers. The court also notes that Southwest makes a case (at the preliminary injunction stage) that Kiwi has upcharged customers, charged fees that Southwest offers for free, and encouraged customers to book “hidden city” fares. For this and other reasons, the court says Kiwi’s actions cause damage to Southwest’s reputation, customer relationships, and goodwill.
The court notes the BoardFirst case where Southwest sued a company who assisted passengers in securing boarding passes (by logging in on their behalf). A district court judge held that BoardFirst agreed to Southwest’s terms. Kiwi argued, citing the Ninth Circuit’s hiQ decision, that the law has “shifted significantly” since the BoardFirst case. The court brushes this argument to the side, nothing that even the hiQ ruling is on uncertain footing (the Supreme Court vacated it in light of its ruling in Van Buren v. U.S.).
Mike Masnick at Techdirt notes a second lawsuit by Southwest against a company called “Skiplagged,” which helps customers find “hidden city” fares. (Skiplagged was sued by United in 2015 but the lawsuit was dismissed due to lack of personal jurisdiction: “United’s lawsuit over hidden-city fares thrown out”.)
The ruling highlights that (1) scraping continues to be legally grey area activity, and (2) recent rulings such as hiQ and Van Buren have not yielded bright-line results.
Southwest’s trademark claim is worthy of note. Neither this ruling nor the earlier ruling on the motion to dismiss spend much time on it. While brand harm may be what is motivating Southwest’s actions, that argument has not figured prominently in the proceedings.
Case citation: Southwest Airlines Co. v. Kiwi.com, 3:21-cv-00098-E (N.D. Tex. Sept. 30, 2021)