In the past, I’ve been a pretty big fan of Southwest Airlines. On many routes it has been my first choice for flights. However, after digging into a new lawsuit the company filed earlier this month, I’m pretty close to swearing off Southwest forever. I can’t support this kind of bullshit legal bullying. First off, Southwest does have a bit of history legally bullying sites that improve the Southwest experience. Back when your seating on Southwest really depended on how close to 24 hours prior to your flight that you checked in, there were a few services that would automate checking you in at exactly the 24 hour mark, and Southwest sued to shut them down. The company has also threatened tools that merely scraped Southwest fares — which could be kind of useful, since Southwest doesn’t share its shares with popular flight info aggregators like Kayak and Expedia.
It is somewhat questionable whether or not Southwest actually has a legal right to block that — pricing info is not covered by copyright — but there are lots of attempts these days to twist laws to argue that merely putting something in a terms of service is enough to create a legal obligation.
Enter a new site: SWMonkey.com. The idea behind the site is fairly simple. Because Southwest Airlines (unlike basically every other airline) actually has no fees to change your flight, if you spot your same flight available for less, you can call Southwest and basically exchange your ticket for the new ticket and get credit for future flights (and sometimes even cash back). Southwest, of course, relies heavily on the idea that not many people take advantage of this. SWMonkey’s clever idea was to monitor price changes for you, and alert you if the price on your flight dropped significantly. The site charged a $ 3 fee if it could save you $ 10 or more.
The site launched in November and Southwest sent a fairly obnoxious cease and desist letter to SWMonkey almost immediately after it launched. The crux of the cease and desist was that what they were doing was trademark infringement.
It has come to Southwest’s attention that you are using Southwest’s proprietary and trademarked names and logos in connection with your business. This is misappropriation of Southwest property, an infringement upon Southwest’s proprietary rights, and is confusing and misleading to Southwest’s customers.
Almost all of that seems to be complete bullshit. While it is true that SWMonkey was using Southwest’s name, it was doing so to correctly identify that its service helped you save money when flying Southwest. That’s known as nominative fair use (using someone’s trademarks to correctly identify them). The idea that it was “confusing and misleading” is pure hogwash. Since the entire point of the site was to help you save money on Southwest, it’s ludicrous to suggest that anyone would be confused into believing that the site was run by, or even blessed by, Southwest.
At first, SWMonkey put up a perhaps ill-advised blog post (prior to having a lawyer review it) insisting they weren’t going to be intimidated and spouting some slightly confused legal theories. That resulted in more legal threats and eventually the decision to stop operating the service. In shutting off the service, they noted that they had made a grand total of $ 45 in the few weeks that the service operated — meaning that a grand total of 15 people had successfully used the service.
This was bad enough, and you would think that Southwest’s lawyers could be happy that the thousands of dollars in legal fees they had spent in angrily going after this cool project and had stopped a couple of guys from making any more than their $ 45. But, no. Southwest sent an even angrier cease and desist after the site had stopped offering its service. Now the complaint was that even though SWMonkey was no longer working, it had dared to leave the non-working site up. I’m not kidding.
Despite a series of correspondence over the past week, Southwest is surprised and disappointed that your clients are not willing to completely shut down the Website. It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here.
Part of the anger appears to be that, in closing the site, SWMonkey also linked to a tool on Github that would allow those with the technical knowhow to monitor changes in Southwest prices. The tool does not appear to have been created by SWMonkey. And, notably, at some point in the past few weeks, that tool has disappeared from Github. And, no matter what, all SWMonkey did was link to it.
Not only that, but the bumptious legal threat includes vague claims of possible criminal violations for leaving the website up.
That is pretty ridiculous, and the guys behind SWMonkey said so:
They want us to “cease operation of the website” completely. Why? We are not scraping their site anymore. We are not infringing on their copyrights or trademarks. We are nothing but a historical remnant of a really great service, and the links and blog posts that remain on our site are certainly not illegal.
SWMonkey is nothing more than an informational page and Southwest just sent us a cease & desist letter demanding that we disappear. It seems to me that Southwest’s only goal here is to limit our freedom of speech, because at this point, that’s literally all we have. After reading and rereading their letter, I can’t find a single allegation with any basis. “Obvious legal risks”!? What obvious legal risks? We already disabled the service. They mention that the revised form of the site has issues, and imply that they can come after us for violating Texas criminal law, trespassing, civil conspiracy, and unjust enrichment. I would refute these claims by reminding them that not only are we not violating any Terms, we are not accessing the southwest.com website, and we are not even pursuing this as a commercial venture. We just felt that our users should know why a site that they trusted to share credit card and flight information with, has suddenly shut down their service.
SWMonkey’s lawyer, Charles Roberts, responded to Southwest explaining why their takedown demands were bullshit:
At the top of page two, you indicate that a “revised form” of the website is being maintained which “raises additional issues.” Without offering a clue about what you regard as those additional issues, you mention that Southwest, in prior litigation, has pursued claims for violation of Texas Criminal statutes, trespass, civil conspiracy, and unjust enrichment. As an aside, I could find no private right of action for Texas Penal Code §33.02; indeed, quite the contrary appears to be the case. See Hodson v. Moore, Civil Action No. 2:15-CV-453 (S.D. Tex. Sep. 23, 2016) (“However, the Texas Penal Code does not create a private cause of action. Aguilar v. Chastain, 923 S.W.2d 740, 745…. Further, I note that it is a violation of the Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter. See Rule 4.04(b)(1). It remains unclear whether the causes of action you reference at the top of page two of your letter refer to the functional website swmonkey.com, or the currently disabled version of the website, or are made merely to instill fear. Please clarify.
You then turn to Southwest’s trademark claims. Again, it is unclear whether you are referencing the former version of the website or the disabled version. Regardless, the website swmonkey.com does not now, nor has it ever, violated Southwest’s trademark rights. Any use of the word “Southwest” on the swmonkey.com website qualifies as nominative fair use in that it merely refers to your client. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526 (5th Cir. 1998). Further, because of the nature of the service offered in the prior version of swmonkey.com, it would be virtually impossible for one to assume that the services were being offered by, sponsored by, or affiliated with your client. As a further precaution, a disclaimer appeared (and continues to appear) at the bottom of the website placing users on notice that “SWMonkey is not affiliated with Southwest Airlines or any of its partners in any way.” Given that swmonkey.com is no longer being used to offer any commercial service, we are perplexed as to why Southwest is insisting that the “entire website” be taken down. It would appear that Southwest is merely trying to use the legal system to curtail Roundpipe’s free speech rights.
The current swmonkey.com website is even further removed from trademark infringement than the Southwest virtual airline website at swavirtual.com which I previously brought to your attention. Given that Southwest has acquiesced in the existence of swavirtual.com for the past nine years, I do think a court would be sympathetic to your arguments that swmonkey.com is creating consumer infringement.
Finally, you suggest that Southwest will take formal action for Roundpipe’s prior alleged violation of Southwest’s Terms and Conditions (based on conduct which has ceased) unless Roundpipe complies with all of Southwest’s demands. Given that Roundpipe is no longer in violation with Southwest’s Terms and Conditions, the demands in your letter seem to be little more than legal extortion.
Soon after that, The Outline published a pretty brutal takedown of Southwest’s obnoxious bullying, entitled How Southwest Airlines kills startups that monitor its prices.
And, with that… one hoped it was over. But nope. The lawyers and bullies at Southwest decided to move ahead and sue SWMonkey and its two founders earlier this month. The actual complaint is totally insane. But before we get to just how terrible and ridiculous the complaint is, let’s just remind people of this:
Southwest Airlines decided to sue a couple of guys who had ALREADY SHUT DOWN THEIR SERVICE which helped more people enjoy Southwest Airlines, and from which they’d only made $ 45, because they left the site up explaining why they shut down the service.
That’s fucked up. And that’s why I have no interest in flying Southwest Airlines ever again. And I can assure you I spend a lot more than $ 45 on Southwest.
But let’s get into the actual lawsuit. Claim one is breach of contract. What contract? The complaint argues that by merely accessing Southwest’s site, they have formed a “contract” with Southwest on the basis of Southwest’s terms of service. This is a very twisted (and incorrect) view of contract theory. While there are some (unfortunately) mixed rulings in the courts regarding “clickthrough” or “browserwrap” contracts, this is a particularly ridiculous argument, especially considering that they weren’t even buying tickets on Southwest’s website — just gathering the data. Southwest Airlines has every right to use technological means to try to block SWMonkey, but to sue them for “breach of contract”? Come on. Even worse, Southwest falsely claims that it “has been and will continue to be damaged as the result of Defendant’s breach of the User Agreement.” That’s complete nonsense. The guys shut down the service. There is no continuing damage at all — other than the damage to Southwest’s reputation for filing this bullshit lawsuit.
From here, we’ll jump to claim five before going back to the others, because it’s similar to claim one. This is an infamous CFAA claim. For many, many, many years we’ve written about how the CFAA — a law designed to be used against computer hacking — has been twisted and abused to go after people for merely violating a terms of service. Thankfully, back in 2012, courts ruled that merely violating a terms of service does not automatically make it a CFAA violation. Similarly, just last year a court ruled that scraping of publicly accessible data is also not a CFAA violation. Those ruling are in different circuits, so not binding in Texas where Southwest filed, but still.
The one case that Southwest has that does kinda, maybe support its CFAA claim is the awful decision from 2016 in the Facebook v. Power case, where the court said that it can be a CFAA violation if you keep scraping after a cease and desist letter has been sent. Again, we think that’s an incorrect reading of the law — but even if it is how the courts are now reading the CFAA it should not apply here because SWMonkey STOPPED SCRAPING after receiving the cease and desist. At worst, Southwest could argue that they kept scraping for another week while they reviewed things with a lawyer, before deciding to stop offering the service. But after a legal review, they shut it down.
But, that’s not what you’d get from reading the bullshit claims from Southwest:
Upon information and belief, Defendants have intentionally accessed and continues to access Southwest’s computers without authorization or in excess of authorized access, and through interstate communication, obtained information from Southwest’s computers in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C).
Defendants’ unauthorized access of a protected computer has caused damage and is continuing to cause damage to Southwest, including loss arising from the cost of responding to and investigating Defendants’ unauthorized access, which has amounted in an aggregated loss of at least $ 5,000 during a one-year period.
Defendants’ conduct has harmed and will continue to harm Southwest. As a result, Southwest has suffered and will continue to suffer losses and irreparable injury, in amounts not yet ascertained.
Southwest’s remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant.
What a load of crap. Remember, the service made all of $ 45 and then was turned off. The only thing left now is the website. To claim that it’s causing all this damage and “will continue to harm Southwest” is complete and utter bullshit. Southwest spent nearly 10x more for just the filing fee alone on this lawsuit than SWMonkey made in the two or so weeks that its site operated.
A bunch of the claims are basically variations on trademark infringement. Again, as noted above, SWMonkey’s use of the term “Southwest” was clearly nominative fair use. Incredibly, Southwest feels the need to highlight a whole bunch of other trademarks it holds, even though SWMonkey doesn’t make use of any of them. This includes things like “Southwest Cargo,” “SWABIZ,” and “SWACARGO.COM.” The whole point of this seems to be to flood the judge in the case with nonsense about “we own trademarks!” even if those trademarks are not used at all by SWMonkey.
There’s also a claim of “unfair competition” which… also appears to be total nonsense. The site was not in competition with Southwest. It was designed to make Southwest’s ticketing a better experience for fliers. And, this may be my favorite line in the lawsuit:
In addition, Southwest has suffered and will continue to suffer losses and irreparable injury to its business reputation and goodwill.
WHAT? First off, the site itself created no harm to Southwest’s business reputation or goodwill. Instead, it actually reminded people that Southwest has a pretty awesome policy of letting fliers exchange tickets at no extra cost. That’s a kind of cool business model choice that Southwest Airlines made. If it doesn’t like people actually using that offer, then it should stop offering it.
And, more to the point: what is harming Southwest’s business reputation and goodwill more? A site that helped fliers get cheaper tickets by properly using Southwest’s own policies or Southwest filing a bullshit lawsuit with a ton of bogus claims against a small website that had already ceased offering the service Southwest objected to? I’ve already stated that this lawsuit has convinced me to stop flying Southwest. The SWMonkey site probably would have made me fly Southwest more.
Count six then involves “violations of Texas Penal Code §33.02” though, tellingly, refuses to detail what those violations are. 33.02 appears to be more or less a state version of the CFAA. But only the criminal parts. Perhaps I’m missing something in reading the code, but there does not (at first glance) appear to be a civil component. And yet, Southwest still includes it in the lawsuit — despite the warning from SWMonkey’s lawyer that it is a violation of Texas Disciplinary Rules of Professional Conduct to threaten criminal charges to gain advantage in a civil matter.
In short, almost everything about this lawsuit is complete bullshit and it makes Southwest — whose entire reputation is built on its consumer friendly policies — look like complete and utter assholes. There is no way around this. Southwest had already bullied these two guys into shutting down what appeared to be a useful service that helped Southwest customers make use of Southwest’s own stated policies. And then, after the service was shut down, still filed a completely bullshit lawsuit, with a bunch of bogus claims, falsely stating that the service was still running, despite knowing that was false.
Southwest, in the lawsuit, says that SWMonkey continues to harm its reputation. That is only true so far as the fact that Southwest decided to file this totally bullshit lawsuit over the no longer working SWMonkey website. Southwest and its lawyers should feel ashamed — and anyone who flies Southwest ought to consider whether this is the kind of company they want to give money to.
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