Air Canada has sued award search website Seats.Aero in Delaware court for pulling award availability from its website. They claim (1) trademark infringement for use of its marks, and (2) violations of the Computer Fraud and Abuse Act for accessing its systems without authorization.
There may be a real problem for Air Canada here, but their legal claims appear weak – and certainly bad from a public policy standpoint. They have deeper pockets, though, and sometimes that’s enough to prevail.
- Seats.Aero certainly scrapes data from Air Canada Aeroplan. The Computer Fraud and Abuse Act has been… abused to extremes, in the past allowing the effective criminalization of violations of a website’s terms and conditions. However in recent years more egregious readings of the law have been reined in.
- The U.S. Court of Appeals for the 9th Circuit says screen scraping a publicly accessible site isn’t illegal under the Computer Fraud and Abuse Act. I am not familiar with the state of the law jurisdiction-by-jurisdiction, but this reading is certainly the best one from a public policy perspective.
- Air Canada suggests there’s more than screen scraping, though, suggesting that Seats.Aero ‘falsifies’ requests to get around their website’s blocking procedures. That’s not really accurate though. There’s no forging of credentials – just changing the HTTP header of the requests (not illegal).
Seats.Aero does use the Air Canada Aeroplan name and Air Canada logo on its site when displaying results. There’s no chance of consumer confusion, however, suggesting that the site is somehow Aeroplan, or that Air Canada endorses it when displaying its logo beside the results from other airlines.
Air Canada claims that their website service is degraded for all users as a result of Seats.Aero scraping, but doesn’t appear to meaningfully substantiate this claim. Here I’d be sympathetic to Air Canada at least.
The award search site at issue says,
Unfortunately, we have learned that Air Canada filed a lawsuit against us today in the US District Court for Delaware to try and shut down Seats.aero’s support for Air Canada. We attempted to work with Air Canada several times, including offering to change how our scraping worked, but they refused to work with us and filed this lawsuit without any further notice. This is a hostile move against all award travel tools.
Air Canada is alleging that we are retrieving availability too quickly for Star Alliance to handle, but we retrieve availability from other Star Alliance airlines at the same rate, and they appear to have no IT issues coming from it and have never complained to us. We have built our systems to protect the airlines from excessive load, as we search Air Canada for availability at a fixed rate and have controls in place to rate limit all requests sent to Air Canada’s systems. When our users view Aeroplan results on Seats.aero, they no longer have to go run the same search on Aeroplan’s site, saving them resources.
Air Canada is alleging our searches caused them issues but do not acknowledge other points search sites and malicious third-parties that are known to scrape Air Canada as well, and they don’t attempt to distinguish our searches from them at all. The complaint doesn’t quantify our searches compared to anyone else. Additionally, Air Canada tries to paint us as malicious hackers despite us having previously worked with them to resolve cybersecurity issues in their own systems.
We are disappointed in this outcome but we are determined to fight this unfair attempt to shut down Seats.aero’s support for Air Canada. If you are a Seats.aero user but not a Pro user, we encourage becoming one if you can to help us fight this lawsuit, which will take a lot of resources for our small company. Thanks for your support during this time.
I don’t see any obligation for Air Canada to work collaboratively with Seats.Aero, nor do I think it much matters whether Air Canada chooses to prioritize going after this website first. Air Canada’s claims in the suit don’t appear to say very much for their IT.
I certainly understand why Air Canada might not like to bear the IT costs that this service imposes, and also why they might prefer not to see search results from their site compared against availability elsewhere. Air Canada hasn’t been able to deliver award availability for some of its partners (like Etihad) that other airlines do!
However weaponizing the Computer Fraud and Abuse Act and trademark law here are problematic. I’d rather see a more collaborative approach to whatever problems may exist.
Interestingly, two years ago American Airlines sued The Points Guy over its app accessing AAdvantage member accounts. We haven’t yet seen the outcome of that case but similar issues are at play.
(1) I think there’s a potential argument to be made that using the trademarks might imply that Air Canada is affiliated with, approves of, or stands behind the seat aero product. In any event trademark law requires companies to defend their marks against all unapproved use or risk losing them
(2) the issues in the Points Guy case seem qualitatively different, involving access to private information of other people not simply public inventory information.
Air Canada isn’t suing them primarily for trademark infringement.
Did Air Canada pick Delaware because the defendant in the case has a Delaware nexus and corporate agent to receive legal service/notice but not a nexus and agent that can be served in Canada?
I have very little sympathy for Seats.Aero or any other scraping site. Just a bunch of people trying to monetize other companies IT systems on the cheap. That being said this is an over-reaction by Air Canada that happened in tandem with their crackdown on points/miles brokers who have been problematic for them.
There are security AI tools that Air Canada could implement that would make any scraping by these sites impossible/very expensive to counter. They could change their system and put in controls like ANA has where you have to log in and have points in your account to see availability/pricing, once you have to log in and accept explicit T&C’s the scraping sites are legally hosed. If the scraping sites become too much of a nuisance to the programs, they have the resources and controls to force them off their sites.
This is really bad publicity for AC and somewhat of an admission of how bad their IT systems are. AC is trying to use litigation with little to no merit to bankrupt a smaller firm, it’s disgusting. They may have a slight bit of merit on the trademark side but that could be fixed going forward. I haven’t fully read the suit but are damages cited? The trademark issues could be cleared up relatively easily. AC needs to fix 1. their blocking of Eva, ANA, and thai 2. add nominee lists(akin to ANA and BA) to make it harder for brokers to book tickets for random, unrelated people and 3. crackdown on abuse of transferring tickets by super elite accounts and name changing on already issued tickets. SOLVE the actual problem, don’t try to cover up your sh!tty IT, lack of internal fraud controls, and overall stinginess(partner blocking). Any comment from Mark Nasr? This is a really low stoop from him.
The spurious claims about IT costs which are almost certainly negligible cause me to doubt that the rest of the complaint has much merit, either.
@GUWonder – Air Canada sued in Delaware because Seats.Aero is a Delaware corporation
Isn’t it strange that AC hasn’t taken the obvious move and placed search behind a login wall?
Also, not to be snarky, but don’t you have a financial relationship with a service that also does exactly this sort of scraping? (Even if not necessarily AC)
(And I thought we had seen the outcome of the TPG case — I was under the impression they privately settled with the case dismissed last year. Although as Larry notes, there were some key differences there.)
Delaware is a very popular place to get incorporated, so I guess that explains the lawsuit being filed there.
I thought this blog scraped FlyerTalk, but maybe sometimes it gets scraped back.
Does Air Canada have to pay a GDS/CRS for award space searches like it possibly may have to for regular paid fare searches even when acting like a travel agent selling partner airline award space?
AC is trying to hide the fact that they’ve blocked most of their partners with noise….
Dumpster fire airline
This is a completely ridiculous lawsuit. Whatever the Complaint says, what Air Canada really is complaining about is the facilitation of the use of its awards — which is pathetic.
Since it’s Air Canada maybe we should call it the grey zone. 🙂
This is just yet another example of Air Canada following their unwritten internal company mission statement, “We’re not happy until you’re not happy.”
I have personal first hand experience of their deliberate intent to bully average citizen travellers who are flying as a guest of a national or provincial government agency, or even as guests of a large corporation.
I will never fly with Air Canada again.
I think the real question is, “Why is Air Canada pursuing this lawsuit?” Often, the simplest explanation is the correct one. For free or for a small fee, Seats Aero gives users a clear, accurate picture of award seat availability of not just Air Canada but other airlines. Side by side. This amount of daylight may not be what Air Canada wants. I suspect they would prefer this information being hard to find and harder to compare. A men’s clothing retailer in the East once used the tag line, “An Educated Consumer is Our Best Customer.” Instead of embracing this idea, the Air Canada lawsuit rejects it mostly through specious arguments.
I’m not going to dissect their arguments, but objecting to screen scraping as a way of gathering data for subsequent analysis ignores that we are in the age of artificial intelligence where software programmatically determines what is does not know and then mines available data sources to fill in the gaps. That is, it learns. Would Air Canada be upset if a company hired legions of people to perform queries and transcribe the results for analysis? I say this facetiously, but it’s really the same idea.
Seats Aero has provided a very valuable tool to travelers and is helping to educate them. Air Canada’s assertions without evidence of this causing crippling system capacity and performance issues will not withstand scrutiny in the age of sophisticated dynamic system capacity management. (Think Apple on an iPhone announcement day.)
I hope that Air Canada’s deep legal pockets don’t destroy a small, innovative company that goes to great lengths to say that it is not affiliated with (read beholden to) any carrier.