and the New Frontier of Aggregation Software Liability

Screen Shot 2015-01-14 at 7.37.46 PMBy Robin Hammond

What does Skipplagged software accomplish?—created by Aktarer Zaman—allows consumers to book cheaper airline tickets to major hub cities by buying tickets to non-hub cities, and only completing one portion of the trip. For example, a passenger wishing to fly from New York to San Francisco might purchase a cheaper ticket to Seattle with a stopover in San Francisco, and simply get off the plane in San Francisco. Although the practice, called ‘hidden city ticketing’, has existed for years, Mr. Zaman has created an efficient and accessible method for travelers to utilize this technique.

United Airlines and Orbitz filed suit against Skipplagged for breaching an affiliate contract with Orbitz, and helping customers to enter into contracts (by buying a plane ticket) that they intend to break. Most airlines’ ticket contracts, as well as Orbitz’s terms of use, prohibit hidden city ticketing. And recently, American Airlines, a non-party to the suit, stated the practice “is tantamount to switching price tags to obtain a lower price on goods sold at department stores.”

How strong are the claims against Mr. Zaman?

In their lawsuit, Orbitz and United Airlines allege unfair competition, tortious interference with contract, breach of contract, and common law misappropriation. They also argue Skipplagged constitutes a “deliberate attack on Plaintiffs’ trademark rights” by linking to the United and Orbitz websites.

Plaintiffs have a weak claim of trademark infringement. Mr. Zaman claims there was no monetary gain from the website; thus, it would be difficult to prove that linking to plaintiffs’ websites caused likelihood of confusion, mistake, or deception. Defendant has strong defenses of noncommercial use, nominative use, and fair use.

Plaintiffs have a strong claim of breach of contract against Mr. Zaman for violating the terms of an affiliate contract. Additionally, plaintiffs have a strong claim of tortious interference with contract. Mr. Zaman could be contributory liable under a broad theory of tortious interference with contract for furnishing customers with information they use to enter into contracts which they intend to break.

Moving Forward:

Mr. Zaman is asking for contributions to fund his legal defense. Skipplagged does not appear to be incorporated and, therefore, does not have the benefit of the liability protections of incorporation. The crowd-funding campaign on Skipplagged has more than 3,100 donors who have contributed $67,000 as of this writing. We await Mr. Zaman’s legal response, and the decision, which will impact the future of free aggregate software.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s