
Southwest Airlines is intimidating our startup - crobertsbmw
https://www.swmonkey.com/blog/cease_desist/
======
ars
Calling it Southwest monkey is clearly a mistake.

You have little argument there, and you should change that because to a 3rd
party it could look like a service offered by Southwest itself.

The part about scraping, etc, is more complicated and you may want to fight
that.

See: [http://blog.icreon.us/advise/web-scraping-
legality](http://blog.icreon.us/advise/web-scraping-legality) and
[https://arstechnica.com/tech-policy/2017/08/court-rejects-
li...](https://arstechnica.com/tech-policy/2017/08/court-rejects-linkedin-
claim-that-unauthorized-scraping-is-hacking/) as two quick examples I found on
previous cases that have gone to court.

~~~
romwell
Really? It's bad enough when common words get trademarked, but they didn't
even call themselves "Southwest Monkey". They called it "SWMonkey".

Without extra context (knowing what the website is for by reading the
description), I'd have no clue that "swmonkey" has anything to do with
airlines.

Anyhow, that's a separate issue. Southwest was clearly less concerned about
trademark infringement than they were with the business model. The contents of
the email clearly indicate that they want to disallow scraping with their ToS,
and want to enforce that.

~~~
ars
> but they didn't even call themselves "Southwest Monkey".

Yes they did, and I quote their FAQ:

"How long does Southwest Monkey track flights?"

> They called it "SWMonkey".

I think they changed their name after the letters (and presumably forgot to
change it there).

~~~
romwell
Oopsie then, "Southwest Monkey" does look like a trademark issue on top of the
scraping issue. Certainly doesn't help.

That said, the guy with the skiplagged website (same idea: use publicly
available flight pricing to produce tickets that the airlines see as
undesirable) prevailed against the pressure from the airlines, so the
situation doesn't look too bleak.

------
mirimir
Craigslist has litigated the scraping issue heavily, and precedents are bad
for SWMonkey.

[https://newmedialaw.proskauer.com/2017/04/17/craigslist-
garn...](https://newmedialaw.proskauer.com/2017/04/17/craigslist-
garners-60-million-judgment-against-radpad-in-scraping-dispute/)

Edit: But the LinkedIn case seems favorable: [https://arstechnica.com/tech-
policy/2017/08/court-rejects-li...](https://arstechnica.com/tech-
policy/2017/08/court-rejects-linkedin-claim-that-unauthorized-scraping-is-
hacking/)

~~~
nslocum
I know of a company that scrapes craigslist in bulk. The owner insisted that
he's had no problems. Importantly, his company is not based in the US. Maybe
he just ignores their c&d letters.

~~~
justboxing
> Importantly, his company is not based in the US.

Guessing it's in Ukraine, or somewhere in Eastern Europe :)

------
mapgrep
"Everyone has a right to access public data. And we believe that whether you
are accessing that data by typing in a URL in a web browser, through a CURL
request, an RSS feed, a cached copy, or having someone read it to you aloud,
does not change your right to access public data. "

I am not a lawyer and this is not legal advice, but I believe this is, sadly,
dead wrong. The infamous Computer Fraud and Abuse Act contains a provision
barring not just unauthorized access to computer systems but also accessing
such systems in a manner that exceeds _authorized access._ In other words, if
you break terms of service on a website, you may be in violation of the CFAA.

The ACLU last year filed suit to overturn this provision of CFAA, on the
grounds that it chills research into civil rights violations, as well as
academic research and journalism. [https://www.aclu.org/cases/sandvig-v-
sessions-challenge-cfaa...](https://www.aclu.org/cases/sandvig-v-sessions-
challenge-cfaa-prohibition-uncovering-racial-discrimination-online)

~~~
fjabre
The law is often wrong and written by the more fortunate in society.

The data is publicly available. The reasons this should not be an issue are
self evident.

Google scrapes trillions of sites every second of every day. Where's the
outrage in that sir? Or the legalities. Oh right the law doesn't apply to
them. Just small indie devs.

I don't hide behind legal speak and lawyers. I stand behind the truth of the
matter. I'd say any legal argument against non-malicious scraping is dead
wrong on moral and ethical grounds. Lawyers and powerful corporations will
always try to stamp out the little guy to protect their precious trademark or
data because their intellects are too dull and mediocre to compete with new
entrants or innovations, so they call and cry about it to their lawyer
instead. It's easier.

~~~
mapgrep
Ya, I think the site should be perfectly legal (at least in terms of the
scraping).

For what it's worth, I'm pretty sure if you demand Google to stop indexing
your site, it will comply. With robots.txt you can even ask them in an
automated fashion.

"Legal speak and lawyers" are how we hold our society together in a relatively
peaceful and just fashion. Yes, we end up with bad laws, like CFAA, and some
days I think the U.S. will just collapse in on itself. But it beats all the
alternatives that have been seriously tried. Please remember, lawyers not only
try and enforce the CFAA, but are the ones challenging it as well!

PS Also I think this provision of CFAA is already being rolled back - though I
assume there will be appeals - [https://arstechnica.com/tech-
policy/2017/08/court-rejects-li...](https://arstechnica.com/tech-
policy/2017/08/court-rejects-linkedin-claim-that-unauthorized-scraping-is-
hacking/)

------
scott113341
I made an open source version of this.
[https://github.com/scott113341/southwest-price-drop-
bot](https://github.com/scott113341/southwest-price-drop-bot)

~~~
fuzionmonkey
Nice work, it even has a deploy to Heroku button!

Honestly, I think it's pretty lame trying to profit from arbitrage on SW
prices like that. $3 per alert? Really?

Great job making an OSS implementation.

~~~
justboxing
> pretty lame trying to profit from arbitrage

Lame? Possibly. Profitable? Probably.

~~~
bob_theslob646
> pretty lame trying to profit from arbitrage

It's actually quite stupid. If they did not ask Southwest for permission, they
are asking to be sued, especially when you charge people money.

------
noer
So, the Southwest TOS state that you can't scrape or programmatically access
their data. Isn't that the end of the argument unless they find a way to
manually access it for customers?

~~~
revelation
Is visiting a website now some sort of contract? I have no contractual
relationship with Southwest, what do I care for their TOS?

In the EU all TOS are basically just a reiteration of standard consumer law,
you can put into yours whatever you want but none of that nonsense survives a
legal challenge.

~~~
toomuchtodo
[https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act](https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act)

~~~
revelation
How does a TOS relate to this? Now that you've found the Wikipedia article,
you might as well read it.

~~~
toomuchtodo
mapgrep has detailed that below:
[https://news.ycombinator.com/item?id=15715971](https://news.ycombinator.com/item?id=15715971)

"I am not a lawyer and this is not legal advice, but I believe this is, sadly,
dead wrong. The infamous Computer Fraud and Abuse Act contains a provision
barring not just unauthorized access to computer systems but also accessing
such systems in a manner that exceeds authorized access. In other words, if
you break terms of service on a website, you may be in violation of the CFAA."

------
petercooper
Given they're charging for this service, maybe there's a way to make it work
economically by having low cost workers (e.g. Mechanical Turk or even a bank
of workers in certain countries) perform the checks manually (you could even
create a browser extension that automates the form filling, but leaves a human
to push the button and parse the results). At least by offering it as a paid
service, they have some sums they can run to see if manual would work.

~~~
lurker12390879
Set it up so the user's browser scrapes it when a button is pressed, and send
a reminder every X days as chosen by the user....

User comes to your site, clicks a button, and Southwest's page loads in an
iframe, where js does the lifting.

~~~
petercooper
That's a neat idea. I imagine a service worker could also be used to do checks
in the background, and unless SW wants to ban every IP that hits their site..
:-D

~~~
lurker12390879
Amazon mechanical turk?

Using that you could not only have real people doing this work but also
support (for low cost) people in developing nations who need money to survive.

Because of cookie policies they'd need to clear their cookies every time they
query.

------
virtualwhys
My brother-in-law sunk a million dollars of his own money into a similar real-
time airline pricing service, all of which was thrown away when his now
defunct company got banned for scraping.

There are only a few blessed companies that are allowed to scrape airline data
(not surprisingly, big players in the market). If you haven't been granted
permission and don't comply with their cease and desist you'll be sued and/or
have your scraper IPs blacklisted.

It's a tough business to get into.

------
dstaten
"The problem I see with their argument is that they are making this
information public."

I love this idea! However, I think that unfortunately this argument doesn't
hold up, and wouldn't in court. The information is available via their site,
but that does not make it public.

~~~
oh_sigh
If the information is available to any member of the public that requests it
with no conditions at all, why is the information not considered public?

~~~
verall
But it doesn't make it available with "no conditions at all", their robots.txt
implies the condition that you aren't scraping it with a bot.

~~~
oh_sigh
So there would be a material difference between me using the data when a bot
scrapes it, versus a human doing it?

------
willyyr
Might be worth to check out the recent LinkedIn vs. startup scraping case:
[https://www.reuters.com/article/us-microsoft-linkedin-
ruling...](https://www.reuters.com/article/us-microsoft-linkedin-ruling/u-s-
judge-says-linkedin-cannot-block-startup-from-public-profile-data-
idUSKCN1AU2BV)

~~~
parenthephobia
This is mis-reported. This isn't a general ruling on whether scraping sites in
violation of the explicit instructions of the site owners is allowed.

The judge granted an injunction prior to the trial proper, permitting HiQ to
continue scraping LinkedIn in the lead up to the trial. He did this because
HiQ credibly argued that if it couldn't scrape LinkedIn it would go out of
business before the court had even determined whether what it was doing was
legal. These sorts of injunctions are a procedural matter and quite normal.

[https://en.wikipedia.org/wiki/Preliminary_injunction](https://en.wikipedia.org/wiki/Preliminary_injunction)
has more.

------
sp332
_it was a public domain image, licensed under creative commons._

Unless it was CC0 (which is not what was linked), Creative Commons licenses
are not public domain licenses. Someone still holds the copyright and you have
to abide by the license terms. Secondly, CC and "public domain" are about
copyright, not trademarks. It's totally possible to infringe someone's
trademark even with a public domain image.

------
fjabre
Good for you. I completely agree with your sentiment re: scraping. It's ok if
Google or another big company does it but god help you if you do as an indie
dev. Thank you for sharing this. I commend you.

I've scraped millions of records from all kinds of companies big and small,
politely of course, and I will definitely continue to do so at my discretion
for ideas. In your case I would've scraped southwest without hesitation.

I'd make sure to distance yourself from the trademark as much as possible.
Maybe even remove "sw" from the domain name but otherwise I don't see how they
have a case.

TOS trying to enforce anti-scraping measures is a joke and makes a mockery of
the judicial system.

------
j45
Flightmonkey might be a better name. Apps like Hopper appear to be monitoring
flight prices just fine, not sure if they include SW, though.

Doing flight searches via other travel platforms/apis may also be legal.

------
pwinnski
"And we believe that whether you are accessing that data by typing in a URL in
a web browser, through a CURL request, an RSS feed, a cached copy, or having
someone read it to you aloud, does not change your right to access public
data."

I absolutely do have the right to access the data. However, it's not clear why
_you_ should have the right to access the data and then monetize
redistributing it to me.

------
praneshp
The landing page ([https://www.swmonkey.com/](https://www.swmonkey.com/))
still has the workd "Southwest" used several times, and the picture of what is
obviously a Southwest plane. I wish common sense prevails and this (obviously
very useful) service doesn't die because the founder can't control his ego.

~~~
crobertsbmw
Founder here: There is one case where I use the name SouthwestMonkey instead
of swmonkey. I realize that that was a bad naming decision. All the other
references to southwest are to the Airline and not this service.

------
mankash666
Maybe you can crowdsource pricing info. That way, you're not scraping, and
users are voluntarily sharing what they've searched.

~~~
justgottasay3
That would be one way to comply with the letter of the TOS. There will be some
issue of getting enough traction from users that obey the TOS to make the site
useful, though.

I think crowdsourcing would open up SWmonkey to 'attack' from SW, where SW
would flood the channel with conflicting info at a rate that would make the
SWmonkey site useless to legitimate customers.

Also, most of the companies that offer fare comparisons do not show SW
flights... Some of those companies have the tech chops to implement 'fixes'
that would comply with the SW site TOS and the massive legal departments to
defend their position/approach in any and all courts in the world.

------
bikamonki
Make it an app not a website. Users can download and install it, enter flight
data and click to start monitoring.

~~~
dawnerd
And support more airlines and not call yourself southwest monkey. Plenty of
airlines have policies about lower prices so there is a market for this.

------
dzdt
Does putting a human in the loop make scraping okay? Can there be a button on
the web page : "please click here to run a price check for one of your fellow
travelers" that initiates a web page being fetched, attached to a round-robin
queue of fares that are being monitored?

~~~
crobertsbmw
I don't think so. All they would have to do is change their terms in
conditions to prohibit round robin schemes and then send me a new cease and
desist...

------
anweshi
Google flights doesnt show SW pricing. That itself should have been a red flag
for the creators.

~~~
bob_theslob646
Seriously! It is almost as if they thought there was no reason why it didn't
appear on Google....

Remember ignorance is bliss

------
lanevorockz
We are giving up on free speech to avoid people been offended, of course
lawyers in big companies will find a way to use that to their advantage.

------
fjabre
Lost faith in the crowd here after reading these comments, against web
scraping. Isn't this HACKERnews!? This is the same witch hunt mentality that
ultimately lead to the prosecution of Aaron Swartz and look how that turned
out.

The anti-scrapers: You should all be ashamed of yourselves. Where's that
spirit of innovation and naughty-ness that PG always talks about in his posts?

------
nslocum
If you're not in the US, what could a company do to stop you from scraping?

~~~
hanbura
Realistically they would sue you in your country. Worst-case, they have you
prosecuted for violating the Computer Fraud and Abuse Act and demand
extradition (most countries have extradition treaties with the US)

------
supercanuck
This is a shame. CFAA and the TOS are clearly being used to restrict
competing.

------
nslocum
In the blog post, the link to their product page is broken...

~~~
crobertsbmw
Thanks. Fixed.

------
jwilk
Please use the original title ("Southwest Airlines is intimidating our
startup").

~~~
sctb
We've updated the title from “Southwest sent me a cease and desist letter”.

------
kapauldo
If you distribute the scraping load to a browser plugin you could probably
avoid the tos violation. And aren't there apis that would give you this data,
I love counter gaming tech like this. I hope you rebrand and keep going.

------
rdxm
price discovery is a "b __ __"...

------
hartator
The issue is not the scrapping, but the use of "Southwest" inside your own
name!

~~~
larrik
For the first letter, yes, but the 2nd is clearly against the scraping.

