Over the summer I wrote about Southwest Airlines suing airfare deals website Skiplagged.com.
- Southwest for years has gone after anyone that’s helped customers use its services, from programs that helped members track their points to services that helped them check in at exactly 24 hours before their flight. They also go after anyone publishing their prices and schedules without being authorized by the airline.
- Skiplagged.com helps customers find ‘point beyond’ tickets to save money where they’ll throw away their last segment, not illegal but against airline rules.
Skiplagged wasn’t actually scraping Southwest’s website. They were getting data from Kiwi.com, which in turn did appear to be accessing schedule and fare data without authorization. Southwest is suing Kiwi.com as well.
And Southwest Airlines has won a preliminary injunction against Kiwi.com to stop scraping its website, “publishing Southwest flight or fare information” or selling Southwest flights.
Kiwi.com did seem pretty blatant in what it was doing, but banning the publication of flight information seems both overbroad and prior restraint on free speech. I regularly publish “Southwest flight [and] fare information” on this site. They are even barred from “committing any other acts in violation of Southwests Terms & Conditions.”
The Kiwi.com case is about the power of website terms and conditions, and a company to control information it publishes publicly on the internet.
The Skiplagged case goes a step farther, because Southwest wants to argue that its website terms and conditions apply to a company that does not access its website. And they want to argue that a company that does not sell Southwest Airlines tickets is bound by Southwest’s conditions regarding the display of schedules and fares.
Ironically Southwest Airlines was once the underdog, fighting the establishment, as incumbent airlines tried to sue it into the ground and prevent it from flying. Now they’re the largest carrier of domestic air passengers and use the same tactics in order to control factual information about where and when they fly and at what price.
(HT: Jonathan W.)
I often see Southwest described as an “ultra low-cost airline”. Have they looked at Southwest’s fares lately? Southwest is the largest carrier in my city by fare and they are often the highest cost carrier, far more expensive than AA, United, or Delta, even on identical routes. I have a feeling what they really don’t want is people being able to see that through direct comparison. They have the reputation as being the low cost carrier, so people often go to their site automatically and don’t bother checking the other carriers, but I gave up on them several years ago when I never found any deals. What they did have was no change fees, but now that the legacy airlines have eliminated that, they’ve lost any advantage in my books. (It was always easy to get free bags on competing airlines with the right credit card.) It’s a rare schedule quirk that finds me on Southwest anymore.
As far as claiming your price and schedule are proprietary data, you know who else does that -healthcare insurance companies. Your employer with regard to salaries. It’s to the consumer’s disadvantage to be kept in the dark about the market price for goods and services. I’m generally not for regulation, but if Congress wanted to improve markets, they would pass a law that prices and schedules are NEVER proprietary data, for that information is the lifeblood of a competitive, efficient marketplace.
What may have been a bit lost in the weeds here is that WN made it seem in their lawsuit that Kiwi was pulling schedule and fare data directly from southwest.com. While I don’t have any direct knowledge of what they were doing, I can say for certain that WN’s schedule and fare information is available via other channels (like GDSes for example), and Kiwi could have easily been pulling the data from there. If that’s the case (no pun intended), then the terms and conditions of WN’s website don’t really come into play.
It’s understandable though that Kiwi may not want to disclose where they are getting the data from for competitive reasons, but regardless, the court has issued a fairly broad injunction that prohibit:
“(2) publishing Southwest flight or fare information on the kiwi.com website, through its mobile applications or elsewhere”
and
(4) “selling Southwest flights”
…which basically means that even if (1) and (3) don’t apply (accessing WN’s website and harvesting data from it), Kiwi still loses because they can’t use WN’s data even if it comes from elsewhere.
@Gary: Good points. It is not consistent with free speech that published numeric data not be usable for legal purposes without first getting the consent of the publisher.
It needs to be emphasized that Southwest merely obtained a preliminary injunction. This merely prevents kiwi.com from scrapping the Southwest data during the pendency of the trial. If this case goes to trial Southwest could lose the case and kiwi.com is back in business.
This type of injunction keeps things in the status quo during a legal proceeding and should not be seen as giving any indication on what the final decision after trial would be,
@CM: Southwest is most certainly not a ULCC and never was. But yes, it’s called a “low cost” carrier and I suppose that’s simply because they don’t offer some of the luxuries that the traditional carriers offer such as first/business class, airport lounges, etc. Perhaps, they may also be called that because they haven’t had to pay union rates to employees at the level that the majors do. To me, none of that makes WN a “low cost” carrier at all, just one with a different business model. Same can be said for JetBlue – which I’ve seen referred to as a ULCC. Which is also BS.
I agree that every time I check SW they are way more expensive, UNLESS you qualify for a “GetAway” Fare. I think their only value is the great cancellation policy, which nobody else had until Covid. But does it serve them? My sister is a big SW flyer but she books 5 flights not knowing which one she’ll actually use, and cancels the others once she knows.
@AngryFlier: “Southwest is most certainly not a ULCC and never was”. It certainly was, and served as the model in that rôle for Ryanair and EasyJet in Europe.
ULCC means an unbundled product so WN never qualified.
How dare anyone use data freely available on the internet? No wonder Southwest is bullying – er, stopping them.
Southwest airlines is the worst airline in the USA. They lie in their ads and to their customers. They secure your money by offering cheap flights and favorable scheduling but almost always changes or cancels those flights. What they offer as alternative flights are 3-4 times longer and inconvenient hours, They stole $500 from me because after I complained about lousy flights as my expiration date came closer, they told me they would extend it for six months. It never happened and I had no proof because the promise was done in a phone conversation. They eventually told me that conversation never happened and to pound sand. I will never fly on Southwest again.
Why do people think that an airline should not be able to control where their product is sold?
As someone has pointed out, the ruling is not final.
Playing devil’s advocate here, if there’s one thing that forced Airlines to compete only on cost and to ruthlessly and dishonestly cut services, it is airline price comparison sites.
I rely on Skyscanner, but just like kiwi and all the others, their product has not changed in at least 10 years. Flying has dozens of variables that could be really cleverly presented in a search engine that showed customers value. Instead it becomes a race to the bottom about headline price.
This strategy serves the price comparison sites well because they rely simply on traffic and commissions. For the consumer –
who endlessly complains about standards and surprise charges – I cannot see that it really does help to have the product stripped back to merely one data point.
Price comparison began as simplification but these days it often looks a lot like rent-seeking. South West probably doesn’t agree that a percentage of its margins needs to go to someone else simply because they have a higher search engine ranking.