Southwest Airlines is Intimidating our Startup - Part II
Nov. 28 2017
If you haven't yet, you can read part 1 of this story here.
When we left off, I said we weren't ready to take down SWMonkey and we believed we weren't doing anything wrong. But, in the end, what Pavel and I believe doesn't really matter. What matters is whether we have a chance at winning in court. After consulting with our lawyer, we decided it was unlikely that we could get around Southwest's Terms and Conditions. Terms and conditions can be a gray area. In order for them to be enforceable by a court, they need to be both reasonable and discoverable. You can't just bury some terms and conditions at the bottom of your site claiming, "Anyone that visits this site agrees to pay us $50," and then start demanding payment; that would be both unreasonable and not discoverable. Similarly, we were not aware of Southwest's terms and conditions when we started SWMonkey, but after receiving our second cease and desist letter, we could no longer claim ignorance. And although Pavel and I felt like their terms and conditions were unreasonable, a number of previous court rulings suggested otherwise. So rather than waste our time and money, we decided we would be better off to shut down the service and move on.
Pavel and I were discouraged for a while, but ultimately felt it was the best thing for us to do. To keep our customers and followers in the loop, I updated our landing page to remove the submission form and replaced it with a paragraph outlining that we are shutting down:
And rather than remove the FAQs, I updated some of the questions and answers with my own commentary:
Pavel sent out a quick email to our existing users outlining that we had to shut down for legal reasons and that we weren't going to sell their info to Mormon missionaries or anything. We received a few regretful replies from users that were very disappointed that we had to close up shop. One user was so grateful that we saved him 11,000 points that he sent us $15 for drinks! Pavel and I put everything behind us, used our earning to buy lunch, and started talking about the next project idea. We thought this was the end.
It was not.
On November 22nd, courtesy of James Sheppard at Southwest, we received our "Final Cease & Desist Letter":...Southwest is surprised and disappointed that your clients are not willing to completely shut down the Website. It is not clear to Southwest why your clients are refusing to comply with our demand given the obvious legal risks here.
...But apparently, they have chosen to maintain a revised form of the Website which raises additional issues.
..Southwest will pursue formal legal action related to violation of it's Terms & Conditions unless your clients confirm in writing each of the following:
1. Their written agreement to comply with Southwest's Terms & Conditions;
2. Their agreement to cease operation of the Website and removal of all related information from the internet;
3. Their agreement to notify travel-related websites (i.e. Travel with Grant blog or Travel Zork) that the Website will be removed from the internet for violation of Southwest's Terms and Conditions;
We respectfully request that you provide Southwest with written confirmation related to the issues referenced above on or before Monday, November 27, 2017.
Read the full cease and desist letter here.
We couldn't believe it! They want us to “cease operation of the website” completely. Why? We are not scraping their site anymore. We are not infringing on their copyrights or trademarks. We are nothing but a historical remnant of a really great service, and the links and blog posts that remain on our site are certainly not illegal.
SWMonkey is nothing more than an informational page and Southwest just sent us a cease & desist letter demanding that we disappear. It seems to me that Southwest's only goal here is to limit our freedom of speech, because at this point, that's literally all we have. After reading and rereading their letter, I can't find a single allegation with any basis. "Obvious legal risks"!? What obvious legal risks? We already disabled the service. They mention that the revised form of the site has issues, and imply that they can come after us for violating Texas criminal law, trespassing, civil conspiracy, and unjust enrichment. I would refute these claims by reminding them that not only are we not violating any Terms, we are not accessing the southwest.com website, and we are not even pursuing this as a commercial venture. We just felt that our users should know why a site that they trusted to share credit card and flight information with, has suddenly shut down their service.
Southwest also makes allegations that we are infringing on their trademarks. After discussion with our attorney, we are confident that we are not (how could anyone looking at our web site think we are affiliated with Southwest?). I don't know why Southwest is so bent on us shutting everything down. Maybe they think that it will deter others from scraping their site? Maybe they don't want to appear to be the bad guys and we are tainting their image? I have no idea. But for some reason, shutting down the service isn't enough for these guys; they want to see SWMonkey eradicated from the Internet.
Our lawyer replied to James Sheppard at Southwest today. This quote sums it up nicely:
Given that swmonkey.com is no longer being used to offer any commercial service, we are perplexed as to why Southwest is insisting that the “entire website” be taken down. It would appear that Southwest is merely trying to use the legal system to curtail [swmonkey.com's] free speech rights.
Southwest has no right to decide who can and can't publish information on the Internet. Until Southwest can be transparent with us and offer up a legitimate reason why we should not be allowed to host an informational website, SWMonkey, the service that no longer helps people save money on their flights, is not going anywhere.-Chase & Pavel