UPDATE: The parties reached a settlement on December 23, 2021, as Southwest filed an uncontested motion to enter final judgment and a permanent injunction containing the same restrictions as the temporary injunction issued in September. Under the proposed permanent injunction, Kiwi would be prohibited from collecting flight and fare information from Southwest’s site, posting Southwest flight or fare information on Kiwi’s site or app (or selling Southwest flights), or otherwise using the Southwest site for any commercial purpose or in a manner that violates the Southwest site terms.
UPDATE: On November 1, 2021, the parties filed a joint settlement notice indicating that they have reached a settlement agreement in principle. Terms of the deal were not disclosed.
UPDATE: On October 28, 2021, Defendant Kiwi.com, Inc. filed a notice of appeal to the Fifth Circuit seeking a revision of the district court’s ruling granting Southwest Airlines Co.’s motion for a preliminary injunction.
On September 30, 2021, a Texas District Court granted Southwest Airline Co. (“Southwest”)’s request for a preliminary injunction against online travel site Kiwi.com, Inc. (“Kiwi”), barring Kiwi, among other things, scraping fare data from Southwest’s website and committing other acts that violate Southwest’s terms. (Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (ND Tex. September 30, 2021)). Southwest is no stranger to seeking and, in most cases, obtaining injunctive relief against companies that have been collecting their rate data without permission since the 2000s (see for example, Southwest Airlines Co. v. BoardFirst, LLCNo. 06-0891 (ND Tex. Sept. 12, 2007) (a case cited in the current court opinion)), and as recently as two years ago when we wrote about a 2019 agreement Southwest entered into with a online entity that took down Southwest’s site and had offered a rate notification service, all contrary to Southwest’s terms.
In this case, the Texas court found that Southwest established a likelihood of success based on its claim for breach of contract. Rejecting Kiwi’s arguments that he did not agree to Southwest’s terms, the court found that Kiwi knew and consented to the terms in multiple ways, including by agreeing to the terms when purchasing tickets on Southwest’s website . Overall, the court found the existence of a valid contract and probable violation by Kiwi of the terms, which prohibit the scraping of Southwest flight data and the sale of Southwest flights without authorization. The court also found that Southwest sufficiently demonstrated that Kiwi’s scraping and unauthorized ticket sales, if not prohibited, would do irreparable harm. In finally granting Southwest’s request for a preliminary injunction, the Texas court also held that Southwest also demonstrated that the harm threatened if the injunction is denied exceeded any harm to Kiwi that would result if the injunction were granted and that the injunction would be in the public interest.
What made this finding particularly noteworthy is that the preliminary injunction is based on the probability of success on the merits of Southwest’s breach of contract and Kiwi’s alleged violation of Southwest’s site terms, as opposed to other recent scraping litigation centered around allegations of unauthorized access under the Federal Computer Fraud and Abuse Act (CFAA).
Perhaps the most interesting part of this decision is how the court analyzed 2019 To remove Ninth Circuit judgment relating to Southwest’s breach of contractual claim. We have written a lot about the course To remove scrape litigation, in which the Supreme Court recently vacated the Ninth Circuit’s landmark 2019 opinion and remanded the case to the Ninth Circuit for further consideration in light of the Supreme Court’s decision in Van Buren v United States. In 2019 the Ninth Circuit, in the now cleared To remove opinion, determined that: “It is likely that when a computer network generally permits public access to its data, a user’s access to that publicly available data will not constitute unauthorized access under the CFAA.” While not an issue in the Texas District Court’s preliminary injunction decision, Southwest had affirmed a CFAA complaint in its second amended claim. One of Kiwi’s main arguments against the injunction was that since he was collecting publicly available data, the ruling in To remove means that Southwest cannot establish a probability of success on the merits of its contract application. In deflecting this argument, the District Court pointed out that the Ninth Circuit itself in To remove had stated that “entities that consider themselves victims of data scraping are not without recourse, even if the CFAA does not apply …”. As the Texas court stated:
“The Court is not convinced the To remove case means that Southwest cannot establish a probability of success on the merits for its breach of contract claim. To remove it concerned the desirability of a preliminary injunction under the CFAA. The opinion acknowledges that a plaintiff could have a breach of contract claim even in the absence of a CFAA breach. Also, the Supreme Court recently vacated the To remove sentence and postponed for further examination in the light of the new authority on the application of the CFAA.
Therefore, it appears that Southwest, instead of basing its injunction request on the merits of its CFAA claim — an unresolved legal area — followed the Ninth Circuit statute of limitations and decided to seek relief based on its infringement claim. contract (supported by sufficient evidence of the potential irreparable damage). It also appears that while the vacant To remove Opinion appears to discourage CFAA-based strategies against web scraping (at least for now), the latter ruling highlighting that other challenges to scraping may still be viable.
While we wait for the Ninth Circuit to resume resuming the To remove case and the issue of the CFAA and publicly available data (oral discussion is scheduled for October 18, 2021), we will continue to watch the Southwest-Kiwi litigation as the legal landscape surrounding web scraping just got more interesting.