Using AI driven software is willful negligence.

Not necessarily. Neural nets are excellent at fuzzy matching tasks and make for great filters – but nothing more. If you hook one up to a crawler you get a fairly effective way of identifying websites that match certain criteria. You can then have people review those matches to see if infringement happened. It’s basically a glorified search tool.

Of course if you skip the review step you’re doing the equivalent of running a Google search for your brand name and DMCAing all of the search results. That would be negligent.

There is no indication that Funko/BrandShield did that, however. They say that infringing content was found and we have strong indications that a now-deleted Itch project did contain official screenshots of Funko Fusion so the infringement threshold might have been met. Their takedown request was apparently made in good faith.

Now, why the entire domain was taken down, that is the question. It might be a miscommunication or they might’ve mailed the hosting provider directly. I can imagine everything from human error to faulty processes as the root cause here. What I don’t believe is that they made a high-level decision to nuke Itch.

Who needs to face the consequences depends on who screwed up here. For now we’ll have to make do with both Funko and BrandShield taking a PR hit.