On September 30, 2021, a Texas district courtroom granted Southwest Airline Co.’s (“Southwest”) request for a preliminary injunction towards on-line journey web site Kiwi.com, Inc. (“Kiwi”), barring Kiwi from, amongst different issues, scraping fare information from Southwest’s web site and committing different acts that violate Southwest’s phrases. (Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. Sept. 30, 2021)). Southwest isn’t any stranger in searching for and, most often, acquiring injunctive aid towards companies which have harvested its fare information with out authorization – ranging way back to the 2000s (See e.g., Southwest Airlines Co. v. BoardFirst, LLC, No. 06-0891 (N.D. Tex. Sept. 12, 2007) (a case cited within the present courtroom opinion)), and as not too long ago as two years in the past, once we wrote a couple of 2019 settlement Southwest entered into with an online entity that scraped Southwest’s web site and had provided a fare notification service, all opposite to Southwest’s phrases.
On this case, the Texas courtroom discovered that Southwest had established a probability of success on the deserves of its breach of contract declare. Rejecting Kiwi’s arguments that it didn’t assent to Southwest’s phrases, the courtroom discovered that Kiwi had information of and assented to the phrases in a number of methods, together with by agreeing to the phrases when buying tickets on Southwest’s web site. In all, the courtroom discovered the existence of a legitimate contract and Kiwi’s possible breach of the phrases, which prohibit scraping Southwest’s flight information and promoting Southwest flights with out authorization. The courtroom additionally discovered that Southwest made a ample displaying that Kiwi’s scraping and unauthorized sale of tickets, if not barred, would end in irreparable hurt. In in the end granting Southwest’s request for a preliminary injunction, the Texas courtroom additionally discovered that Southwest additionally demonstrated the threatened damage if the injunction is denied outweighed any hurt to Kiwi that may end result if the injunction is granted and that the injunction can be within the public curiosity.
What made this end result notably notable is that the preliminary injunction relies on the probability of success on the deserves of Southwest’s breach of contract declare and Kiwi’s alleged violation of Southwest’s web site phrases, versus different latest scraping disputes which have centered round claims of unauthorized entry underneath the federal Laptop Fraud and Abuse Act (CFAA).
Maybe probably the most fascinating a part of this determination is how the courtroom parsed the 2019 hiQ ruling from the Ninth Circuit because it pertains to Southwest’s breach of contract declare. We’ve got written extensively concerning the ongoing hiQ scraping litigation, the place the Supreme Court recently vacated the Ninth Circuit landmark 2019 opinion and remanded the case to the Ninth Circuit for additional consideration in gentle of the Supreme Court’s decision in Van Buren v. United States. In 2019 the Ninth Circuit, within the now-vacated hiQ opinion, dominated that: “It is likely that when a computer network generally permits public access to its data, a user’s accessing that publicly available data will not constitute access without authorization under the CFAA.” Whereas not a difficulty within the Texas district courtroom’s preliminary injunction determination, Southwest had asserted a CFAA declare in its second amended complaint. One among Kiwi’s foremost arguments towards the injunction was that because it was scraping publicly out there information, the ruling in hiQ signifies that Southwest can’t set up a probability of success on the deserves of its contract declare. In deflecting this argument, the district courtroom identified that the Ninth Circuit itself in hiQ had acknowledged that “entities that view themselves as victims of data scraping are not without resort, even if the CFAA does not apply….” Because the Texas courtroom acknowledged:
“The Court is not persuaded the hiQ case means that Southwest cannot establish a likelihood of success on the merits for its breach of contract claim. hiQ involved whether a preliminary injunction was appropriate under the CFAA. The opinion acknowledges a plaintiff could have a breach of contract claim even in the absence of a CFAA violation. Further, the Supreme Court recently vacated the hiQ judgment and remanded for further consideration in light of new authority on the application of the CFAA.”
Thus, it seems Southwest, as an alternative of constructing its injunction request on the deserves of its CFAA declare – an unsettled authorized space – adopted the prescription of the Ninth Circuit and determined to hunt aid based mostly on its breach of contract declare (backed by a ample displaying of the potential for irreparable hurt). It additionally seems that whereas the vacated hiQ opinion seems to discourage CFAA-based methods towards internet scraping (not less than for now), this newest ruling highlights that different challenges to scraping should be viable.
Whereas we watch for the Ninth Circuit to take up as soon as once more the hiQ case and the difficulty of the CFAA and publicly out there information (oral argument is scheduled for October 18, 2021), we’ll proceed to look at the Southwest-Kiwi litigation because the authorized panorama surrounding internet scraping simply bought extra fascinating.