“Ryanair” Or “Plaintiff” Expedia Inc. (“Expedia” Or .

4m ago
10 Views
0 Downloads
429.98 KB
14 Pages
Last View : 5d ago
Last Download : n/a
Upload by : Warren Adams
Transcription

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 1 of 14123456IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE789RYANAIR DAC, an Irish company,10Plaintiff11v.1213EXPEDIA INC., a Washingtoncorporation,Defendant.14151617CASE NO:COMPLAINT FOR:VIOLATION OF COMPUTER FRAUDAND ABUSE ACT (18 U.S.C. § 1030 etseq.)JURY DEMANDPlaintiff Ryanair DAC (“Ryanair” or “Plaintiff”), by and through its undersigned counsel, forits Complaint against Defendant Expedia Inc. (“Expedia” or “Defendant”) alleges as follows:PARTIES1819)))))))))))))1.Plaintiff Ryanair is a company duly organized under the laws of Ireland having its20principal place of business at Ryanair Dublin Office, Airside Business Park, Swords, County of21Dublin, Ireland.222.Ryanair prides itself on providing to its customers low-fare airline travel without23sacrificing quality and customer service. Through its website at www.ryanair.com (the “Ryanair24Website”), Ryanair offers its customers low-fare flights, along with providing flight advertisement,25search, information, reservation, and purchase services for Ryanair flights and ancillary services.26HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 12300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 2 of 143.12On information and belief, Defendant Expedia Inc. is a Washington corporationhaving its principal place of business at 333 108th Avenue NE, Bellevue, Washington 98004.4.3Expedia operates an online travel company that, among other services, allows its4customers to make and book travel arrangements on its websites. Expedia’s websites offer a broad5selection of airline tickets, hotel reservations, and many other travel services throughout the world.NATURE OF ACTION65.78This action arises under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(“CFAA”).JURISDICTION AND VENUE96.1011This Court has jurisdiction over the subject matter of this claim pursuant to 28 U.S.C.§ 1331 because this action arises under federal law, namely, 18 U.S.C. § 1030.7.12This Court has personal jurisdiction over Expedia because it operates its business in13this State and District and, on information and belief, has committed one or more acts alleged in this14Complaint within this State and District. Furthermore, Washington state is regarded as Expedia’s15home.8.16Venue is proper in this District under 28 U.S.C. § 1391(b) because Expedia resides in17this judicial district, is subject to personal jurisdiction in this District, and because, on information18and belief, a substantial part of the actions giving rise to the claim occurred in this District.FACTS AND BACKGROUND192021A.Ryanair and the Ryanair Website9.Ryanair operates internationally as a low-fare airline in part through the Ryanair22Website. The Ryanair Website contains flight advertisements, reservation, and purchase services for23Ryanair flights, as well as additional services such as accommodation, reservation, car hire, and24insurance services.2510.26Ryanair has built considerable goodwill since its creation in 1985 as Europe’s firstlow-fare airline. Since that time, Ryanair has become a leading airline, carrying more than 100HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 22300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 3 of 141million passengers per year on approximately 1,800 daily flights across 31 countries. Ryanair’s2sales, marketing, and business model is based on offering low fares to its customers. The Ryanair3Website is at the center of that model.11.45of the Ryanair Website. This includes delivering prompt, reliable, and efficient results to consumers.12.67Ryanair’s business is perpetuated in significant part by the efficacy and performanceThrough the Ryanair Website, Ryanair provides fare, route, and schedule informationto its customers and potential customers. Ryanair provides this information in an interactive format.813.Over 99% of Ryanair bookings are made through the Ryanair Website.914.Ryanair has invested substantial time, effort, and money in developing and10maintaining the Ryanair Website and its related databases and systems, along with the information11contained in it. Ryanair relies on the Ryanair Website to facilitate and process transactions and to12maintain and earn the business and goodwill of its customers.15.13Given its importance, Ryanair has also invested considerable resources in the design,14organization, operation, and maintenance of the Ryanair Website to ensure that it operates in an15efficient and user-friendly manner by selecting and verifying the data presented on the Ryanair16Website.16.17Ryanair maintains the exclusive online distribution rights to sell Ryanair flights to the18general public in order to ensure that Ryanair flights are sold to consumers at the lowest price,19thereby preserving Ryanair’s reputation.20B.21The Ryanair Terms of Use17.The Ryanair Website Terms of Use (“Ryanair TOU”) explain that by accessing the22Ryanair Website, users agree to be legally bound by and act in accordance with the Ryanair TOU.23See, Exhibit A, ¶ 1, attached hereto.242518.Ryanair is the exclusive online distribution channel for its airline flights. Specifically,the Ryanair TOU states:26HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 32300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 4 of 14123This website is the only website authorised to sell Ryanair flights,whether on their own or as part of a package. Price comparison websites mayapply to enter into a written Licence Agreement with Ryanair, which permits suchwebsites to access Ryanair’s price, flight and timetable information for the solepurpose of price comparison.4See, Exhibit A, ¶ 2, attached hereto.5619.Users of the Ryanair Website are not permitted to use the Ryanair Website other thanfor private, non-commercial purposes. Specifically, the Ryanair TOU states:7You are not permitted to use this website (including the mobile app andany webpage and/or data that passes through the web domain atryanair.com) its underlying computer programs (including applicationprogramming interfaces (“APIs”)), domain names, Uniform ResourceLocators (“URLs”), databases, functions or its content other than forprivate, non-commercial purposes. Use of any automated system orsoftware, whether operated by a third party or otherwise, to extract anydata from this website for commercial purposes (“screen scraping”) isprohibited. Ryanair reserves its right to take such action as it considersnecessary, including issuing legal proceedings without further notice, inrelation to any unauthorised use of this website.8910111213141516171819202122232425See, Exhibit A, ¶ 3, attached hereto.20.Ryanair does not permit scraping of the Ryanair Website, its content, and/or itsunderlying databases.21.Any scraping of the Ryanair Website, its content, and/or its underlying databases isunauthorized.22.The Ryanair TOU explicitly forbids screen scraping. For example, the TOU states:You are not permitted to use this website (including the mobile app andany webpage and/or data that passes through the web domain atryanair.com) its underlying computer programs (including applicationprogramming interfaces (“APIs”)), domain names, Uniform ResourceLocators (“URLs”), databases, function, or its content other for private,non-commercial purposes. Use of any automated system or software,whether operated by a third party or otherwise, to extract any data fromthis website for commercial purposes (“screen scraping”) is prohibited.Ryanair reserves its right to take such action as it considers necessary,26HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 42300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 5 of 141including issuing legal proceedings without further notice, in relation toany unauthorised use of this website.2345See Exhibit A, ¶ 3, attached hereto.23.Paragraph four of the Ryanair TOU notifies the Ryanair Website user of Ryanair’sintellectual property and other user restrictions:6All information, data, underlying computer programs (including APIs),domain names, URLs, databases, and materials presented on this website,including names, logos, flight schedules, prices, etc., as well as the colourscheme and the layout of the website, are subject to copyright, trade markrights, database rights and/or other intellectual property rights. You mayuse such content only as strictly required for permitted personal, noncommercial purposes. Any other use and/or reproduction of such content,without the prior written consent of Ryanair, is prohibited and willconstitute a breach of these Terms of Use and may infringe Ryanair’s IPrights.7891011121314See Exhibit A, ¶ 4, attached hereto.24.In order to conduct a search on the Ryanair Website, the user is required to input15search parameters and click a button entitled “Let’s go!” A user must agree to the Ryanair TOU16prior to clicking on the button entitled “Let’s go!”17181920212225.There is a box to check under the “Let’s go!” button on the Ryanair Website. Next tothe checkbox are the words: “By clicking Let’s Go I agree to Website Terms of Use.”26.The statement “By clicking Let’s Go I agree to Website Terms of Use,” as describedabove in paragraph 25, contains an emphasized hyperlink in bold font linking to the Ryanair TOU.27.A representation of the Ryanair Website as described above in paragraphs 24 to 26 isshown below:23242526HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 52300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 6 of 14123456728.89Users of the Ryanair Website, including Expedia and/or its agents, are put on noticeof and subject to the Ryanair TOU.29.10Additionally, bookings through the Ryanair Website are completed through a feature11on the Ryanair Website called “myRyanair.” Access to myRyanair requires the entry of a user name12and password.30.13In order to complete a booking on the Ryanair Website, Expedia and/or its agent must14click a box on the Ryanair Website confirming that Expedia and/or its agent agree to the Ryanair15TOU.31.1617At all material times, admission to and use of Ryanair’s Website have been subject tothe Ryanair TOU or terms of use materially similar.32.18The Ryanair TOU is available for inspection on the Ryanair Website via hyperlinks19that are prominently displayed in multiple locations on the Ryanair Website, including near the20search query field.21C.22232425Expedia’s Unauthorized Activities and the Resulting Harm33.Expedia operates as an online travel agent and booking service for airline flights,hotel reservations, car rentals, and ancillary services.34.Expedia offers for sale and sells Ryanair flights individually and as part of a package,e.g. flights and hotels, through the Expedia website.26HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 62300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 7 of 1412335.On its websites, Expedia offers Ryanair flights and packages without Ryanair’spermission and in violation of Ryanair’s TOU.36.On information and belief, Expedia has used and/or procured, and continues to use4and/or procure, information from an automated system or software that enables it to enter into and5use the Ryanair Website, its content, and/or underlying databases for the purposes of searching and6booking Ryanair flights that are ultimately sold by Expedia to customers using the Expedia website.737.A customer who books and purchases a Ryanair flight through the Expedia website8does so within the confines of the Expedia website. The customer is not transferred to the Ryanair9Website.1038.On information and belief, this automated system or software described above in11paragraph 36 operates on a daily and near-continuous basis in order to procure flight information12from the Ryanair Website. This continues to the present day.1339.Expedia enters and uses the Ryanair Website by engaging in and/or directing,14controlling, or procuring an activity commonly referred to as “screen scraping,” “crawling,” or the15use of a “robot” or “spider.”1640.The automated software or system described above in paragraphs 36 and 38 enables17Expedia and/or its agents to enter into and use, or cause to be entered into and used, the Ryanair18Website and its content by mimicking an actual customer.192021222324252641.Upon entering into and using the Ryanair Website or its content, Expedia and/or itsagents conduct or cause a search for flight information on behalf of its own customers.42.On information and belief, Expedia uses the information it gleans from its screenscraping activities for use in conjunction with offers to its customers.43.On information and belief, Expedia on occasion charges its customers who purchasedRyanair tickets a fee beyond the cost the true cost of the Ryanair flight.44.On information and belief, as a consequence of the fee described above in paragraph43, Expedia fails to inform consumers of the actual price of the Ryanair flight they are booking.HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 72300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 8 of 14145.On information and belief, Expedia similarly fails to inform its customers that an2additional fee is imposed by Expedia and that said fee is unconnected with Ryanair and paid to3Expedia or its agents.45646.The imposition of such additional fees as described above in paragraphs 43 to 45causes damage to Ryanair’s goodwill and reputation.47.Expedia occasionally also misrepresents the price of a Ryanair flight on the Expedia7website in a manner outside of the additional fee Expedia includes, as discussed in paragraphs 438through 45.948.When a Ryanair flight is purchased as part of a flight and hotel package on the10Expedia website, Expedia states that the ticket is non-refundable and non-transferrable. This is11contrary to Ryanair’s General Terms and Conditions of Travel, which do in certain circumstances12permit refunds and name changes. This misinformation damages Ryanair’s reputation.1349.Additionally, when a customer books and purchases a Ryanair flight through the14Expedia website, the customer does so within the confines of the Expedia website and the customer15is not transferred to the Ryanair Website.1650.Expedia’s refusal or failure to transfer the customers to the Ryanair Website for the17purpose of booking a flight with Ryanair interferes with Ryanair’s commercial interests and18damages Ryanair.1951.20212223Expedia’s ability to sell Ryanair services through the Expedia website is dependenton Expedia’s or its agents’ unauthorized and illegal scraping of the Ryanair Website.52.Expedia through its or its agents’ screen scraping of the Ryanair Website deprivesRyanair of the opportunity to maximize its revenues from the Ryanair Website.53.Ryanair also suffers a loss when Expedia’s activities cause Ryanair’s potential24customers to choose not to travel with Ryanair after viewing the inflated cost shown on the Expedia25website.26HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 82300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 9 of 14154.Furthermore, Expedia’s and/or its agents’ screen scraping of the Ryanair Website2increases the quantities of queries on the Ryanair Website. These automated queries have the ability3to overwhelm the systems of the Ryanair Website, which impairs the Ryanair Website’s availability4and/or usability for the intended users. This causes material harm to Ryanair, its customers, and5Ryanair’s reputation.655.Because of the data being scraped from the Ryanair Website by Expedia or its agent,7response time on the Ryanair Website can deteriorate, leading to error rates, and unacceptably slow8response rates.956.Ryanair has spent considerable resources to find, diagnose, and block access to the10Ryanair Website by Expedia and/or its agents. Those resources have included and continue to11include the diversion of employees from their usual duties, along with costs paid to third parties.121314151657.Expedia’s and/or its agents’ conduct discussed above in paragraphs 38 through 49 isnot authorized by Ryanair.58.Expedia’s and/or its agent’s conduct discussed above in paragraphs 38 through 49 issubject to and breaches the terms of the Ryanair TOU.59.On September 28, 2017, counsel for Ryanair sent Expedia a cease and desist letter,17demanding that Expedia immediately stop its practice of screen scraping. See Exhibit B, attached18hereto (“Cease and Desist Letter”).192060.The Cease and Desist Letter made clear to Expedia that Ryanair does not authorizeExpedia’s and/or its agents’ practice of screen scraping.2161.The practice of screen scraping is in breach of the Ryanair TOU.2262.Expedia is aware of the Ryanair TOU.2363.Even if Expedia incorrectly believed it had authorization for Expedia or its agent to24screen scrape the Ryanair Website, Ryanair has made it explicit that any authorization has been25revoked.26HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 92300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 10 of 14164.In the Cease and Desist Letter, Ryanair wrote: “Ryanair explicitly and unequivocally2states that Expedia has no authorization to access Ryanair’s website or its content for any reason. To3the extent Expedia ever believed it had authorization to access Ryanair’s website, Ryanair explicitly4revokes such authorization.” See, Exhibit B, p. 2, attached hereto.56765.Ryanair explicitly revoked any and all authorization for parties that Expedia mayenlist to aid in accessing the Ryanair Website or its content.66.The Cease and Desist Letter stated: “In addition to Expedia, Ryanair explicitly8revokes any and all authorization for those parties that Expedia may enlist to aid in accessing9Ryanair’s website or its content, including but not limited to Expedia’s agents, employees, affiliates,10and/or anyone acting on Expedia’s behalf. This revocation includes third-party vendors or third-11party scraping providers that Expedia may employ or hire or from which Expedia may purchase a12service. Technological gamesmanship or the enlisting of a third party to aid Expedia in gaining such13access does not excuse Expedia of liability under CFAA. To the extent Expedia is currently utilizing14a third party to gain unauthorized access to Ryanair’s website or its content, we demand that you15cease and desist such activity and provide to Ryanair the third party’s business information so that16Ryanair can provide that company explicit notice of its continued violations of the CFAA.” See,17Exhibit B, p. 2, attached hereto.18192067.To date, Expedia has neither responded to the Cease and Desist Letter nor ceased itsunauthorized activities described herein.68.Expedia itself, or through its agents, continues to knowingly and intentionally screen21scrape the Ryanair Website to its own economic and reputational advantage and to the disadvantage22of Ryanair.2369.24Expedia is not now, nor has it ever been, authorized by Plaintiff to procure or use theinformation or content stored on the Ryanair Website and/or its underlying databases and systems.2570.Furthermore, Expedia is aware that screen scraping negatively affects Ryanair and the26Ryanair Website.HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 102300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 11 of 14171.On September 15, 2011, Expedia filed a lawsuit in this District alleging that2individuals “deployed scraping software in the Expedia.com website.” See Expedia Inc. v. John3Does 1-10, No. 2:11-cv-1542 (the “Expedia Scraping Lawsuit”).472.In the Expedia Scraping Lawsuit, Expedia alleged that the screen scraping “impaired5the site’s availability and/or usability for intended users, causing material harm to Expedia, its6customers, and its reputation.”773.In the Expedia Scraping Lawsuit, Expedia alleged that “Defendants’ unauthorized8and illegal use of the Expedia.com website impaired the servers’ condition and value and deprived9Expedia their use for a substantial time.”1074.In the Expedia Scraping Lawsuit, Expedia alleged that the defendants’ use of a11scraper program on Expedia’s protected computers “caused damage to Expedia’s protected12computers in violation of [the CFAA].”131475.Expedia’s unauthorized and illegal use of the Ryanair Website has impaired theRyanair Website’s value, injured Ryanair, and continues to injure Ryanair.15COUNT I16VIOLATION OF COMPUTER FRAUD & ABUSE ACT UNDER 18 U.S.C. § 1030 et seq.171819202176.Plaintiff realleges and incorporates by reference the allegations contained inparagraphs 1 through 75, above, as if set forth in their entirety herein.77.Plaintiff brings this action under 18 U.S.C. § 1030(g) allowing any injured person tomaintain a civil action against the violator of 18 U.S.C. § 1030.78.Expedia has violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C),22by intentionally accessing a computer used for interstate commerce or communication, without23authorization or by exceeding authorized access to such a computer, and by obtaining information24from such a protected computer.252679.Expedia has violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(4), byknowingly, and with intent to defraud Ryanair, accessing a protected computer, withoutHOLLAND & KNIGHT LLPCOMPLAINT- PAGE 112300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 12 of 141authorization or by exceeding authorized access to such a computer, and by means of such conduct2furthered the intended fraud and obtained one or more things of value.380.On information and belief, Expedia has violated the Computer Fraud and Abuse Act,418 U.S.C. § 1030(a)(5)(A), by knowingly causing the transmission of a program, information, code,5or command and as a result intentionally causing damage without authorization to a protected6computer owned by Ryanair.781.Expedia has violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(B)8and (C) by intentionally accessing a protected computer without authorization, causing damage to9Ryanair, recklessly or without due regard for their actions.1082.The computer system or systems that Expedia accessed as described above constitute11a “protected computer” within the meaning of 18 U.S.C. § 1030(e)(2). Ryanair has suffered damage12and loss by reason of these violations, including, without limitation, harm to Ryanair’s website, data13and/or underlying databases, and other losses and damage in an amount well over 5,000 aggregated14over a one-year period.1583.Pursuant to 18 U.S.C. § 1030(g), Plaintiff is entitled to recover compensatory16damages and preliminary and injunctive relief prohibiting Expedia from further violations of the17Computer Fraud and Abuse Act and to prohibit Plaintiffs from using the data they obtained by18scraping Ryanair’s website.PRAYER FOR RELIEF19202122WHEREFORE Plaintiff demands judgment against Expedia as follows:A.For judgment in favor of Plaintiff and against Expedia, on Count I of Plaintiff’sComplaint;23B.That Expedia’s actions constitute a violation of the CFAA, under Federal law;24C.That Expedia, and all of its agents, servants, employees, representatives, and all25others in active concert or participation with them, either directly or indirectly, be preliminary and26permanently enjoined from:HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 122300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 13 of 14i.1Using computer programs, including those referred to as spiders or robots, to2scrape, mine or otherwise extract data or conduct image stripping of the3Ryanair Website and/or underlying databases and the content contained4therein;ii.5using or disclosing any data or image contained from the Ryanair Website;and6iii.7injuring Plaintiff’s business reputation and the goodwill associated withRyanair.89D.That Expedia be required to immediately cease its practice of screen scraping;10E.For damages in favor of Plaintiff and against Expedia, sufficient to compensate11Plaintiff for the damages sustained as a result of Expedia’s actions as alleged herein including, but12not limited to all profits received by Expedia from sales and revenues of any kind made as a result of13its actions;141516F.That Expedia be ordered to pay Plaintiff interest on all monetary awards as allowedby law; andG.For such other and further relief as the Court deems just and proper.17JURY DEMAND18In accordance with Rule 38(b) of the Federal Rules of Civil Procedure, Ryanair DAC demands19a trial by jury of all issues triable by jury.20Dated: November 29, 201721Respectfully Submitted,22HOLLAND & KNIGHT LLP23By: s/ Shannon ArmstrongJ. Matthew Donohue, WSBA #[email protected] Armstrong, WSBA #[email protected] & KNIGHT LLPCOMPLAINT- PAGE 132300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Case 2:17-cv-01789-RSL Document 1 Filed 11/29/17 Page 14 of 14HOLLAND & KNIGHT LLP2300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503.243.2300123R. David Donoghue (pro hac vice to be applied for)Anthony J. Fuga (pro hac vice to be applied for)Rachel C. Agius (pro hac vice to be applied for)131 S. Dearborn Street, 30th Fl.Chicago, IL 60611Telephone: [email protected] for PlaintiffRYANAIR DAC91011121314151617181920212223242526HOLLAND & KNIGHT LLPCOMPLAINT- PAGE 142300 US Bancorp Tower111 SW Fifth AvenuePortland, OR 97204Telephone: 503-243-2300

Website is at the center of that model. 11. Ryanair’s business is perpetuated in significant part by the efficacy and performance of the Ryanair Website. This includes delivering prompt .