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10.18.21

Southwest Airlines wins early battle in web scraping dispute with Kiwi.com

BY Jason T. Kunze

As discussed previously, Southwest Airlines is engaged in a battle with flight aggregator Kiwi.com, to prevent scraping of Southwest’s flight data by Kiwi. Southwest has pursued, among other claims, a CFAA claim to prevent Kiwi’s unauthorized access to Southwest’s data, and Kiwi has moved to dismiss the CFAA claim. That motion is fully briefed and awaits the court’s decision.

In the meantime, Southwest moved for a preliminary injunction to prevent further web scraping by Kiwi. Rather than resting its hat on the CFAA (and in view of the uncertain footing of the CFAA due to the recent narrowing by Van Buren, Southwest focused on its breach of contract claim in support of its motion. This proved effective, as the court ultimately granted the preliminary injunction against Kiwi on this basis.

Kiwi argued for a right to allow open access to public data, relying on similar arguments offered by hiQ Labs in its litigation with LinkedIn. hiQ labs successfully obtained a preliminary injunction allowing it to continue its business—which relied on its scraping of arguably public user profile data on LinkedIn. But, that injunction was granted before the Van Buren decision, and the impact of Van Buren is still being sorted out in the LinkedIn litigation.

The court did not find Kiwi’s argument—that “private companies cannot unilaterally restrict public access to publically available information”—to be persuasive. First, hiQ Labs was only looking at the issue through the lens of the CFAA, and the hiQ opinion acknowledged a plaintiff could have a breach of contract claim even where a CFAA claim fails. Also, the court noted the uncertainty in hiQ Labs (with the Supreme Court vacating the Ninth Circuit decision and remanding for further consideration.)

Instead, the court weighed heavily the fact that Kiwi had “purchased over 20,000 flights” on Southwest’s platform. In doing so, Kiwi had to acknowledge it was bound by Southwest’s Terms and Conditions, by affirmatively clicking a button stating as much before each purchase. Additionally, Southwest sent multiple cease-and-desist letters to Kiwi for violations of Southwest’s terms of service. Based on these facts, that court determined that Southwest is likely to succeed on its breach of contract claim, and combined with its analysis of the other factors favoring Southwest (irreparable injury, balance of harms, and public interest) the court issued the preliminary injunction preventing further scraping by Kiwi.

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Jason T. Kunze

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