A temporary injunction that looks like it was written by American Airlines' lawyers was issued in American Airlines v. FareChase on Friday. According to Fred von Lohman at the Electronic Frontier Foundation: "Four state law theories asserted
and accepted by the Texas state court: (1) trespass to chattel; (2)
misappropriation; (3) breach of contract (browsewrap, no clickthru);
and (4) Texas anti-hacking penal code."
The decision is very interesting for a number of reasons. First, if Fred is right, AA v. FareChase is an extension of the various robot (including eBay v. Bidders Edge), trespass to chattels spam (including CompuServe, Inc. v. Cyber Promotions, Inc.) and browsewrap (including Register.com v. Verio) cases.
I'm also very interested in this language from the opinion:
American time and resources have been dedicated to creating and
implementing technological barriers in an attempt to block
unauthorized users of Farechase software from accessing the
AA.com computer system. Such actions by American to block have
been circumvented by FareChase’s intentional inclusion in its
software of a “masking” feature by which the software disguises its
identity so that American is unable to determine who is gaining
access without authorization thereby preventing American from
blocking all unauthorized access by the Farechase software.
Which may be in reference to the Texas unauthorized access statute (Section 33.02 of the Texas Penal Code which is extremely broad -- as are many of the state unauthorized access codes) but would work just as well as an explanation of liability under Section 1201(a)(1) or 1201(a)(2) of the DMCA.
This case will be one I am watching. FareChase has solid customers (including Sabre) and may have the stomach for a fight. I will try to post an update here as I learn more about their technology and get my hands on the pleadings.
Update: Denise Howell's firm represents FareChase and she is blogging the injunction. She quotes a colleague: "At [American Airlines]'s request, the court has, by this order, created a new property right not only for AA but for all large companies with Internet Web sites: the right to monopolize forever public information."