The chain of culpability, in my view as an outsider, goes iwantmyname > BrandShield > Funko Pop.
Funko Pop hired BrandShield, but from what I understand they did so exactly because the latter does all the work without you having to intervene. Kind of like you hiring a lawyer and them using ChatGPT to present the case, full of errors and non-existent sources. The lawyer might have been acting on your behalf, but they didn’t really do so according to your intentions and their fuck up isn’t your fault. On first view I’d say BrandShield is a culprit here, but can’t be so sure about Funko Pop yet.
On the other hand, iwantmyname is absolutely at fault. They took down a client’s website without asking or recourse, then sat on their asses. That’s who you sue, because they’re the ones who ultimately had the power and made the decision that affected itch.io. If iwantmyname wants to sue BrandShield and/or Funk Pop or whatever else in turn, none of your concern. The one’s who hurt the business were iwantmyname by not doing due diligence or contacting the client but just automatically bending over.
Now if they should be sued in Britain or New Zealand, that’s for the lawyers to know.
In fact, all of this is for the lawyers to figure out. I’m not one. I’m merely expressing what makes logical sense to me, which could be incredibly wrong.
If you hire the bad lawyer and loose the case, the lawyer won't serve your penalty. If Funko authorizes anyone to represent them, they are responsible.
You don't necessarily have to sue them in their place of registration if they're doing business elsewhere. "Defending trademark rights" probably counts as that.
Of course the problem is that legally speaking, they don't cause any damage - service providers they target cause the damage. BS have no true authority over these service providers, just the threat of some legal claim. The service providers comply voluntarily as they don't want to spend time checking if the claim is valid.
IANAL either, but my guess is that itch.io has precisely 0 plausible legal recourse here.
The strongest case would be something along the lines of breach of contract via the domain registrar, but your standard internet contract has a term in it that amounts to "we get the right to fuck you", so I assume that applies here, so no breach of contract actually exists. This also kills every claim that's dependent on breach of contract, so tortious interference is also dead.
Fraud will fail because itch.io itself isn't being defrauded at the very least. Business disparagement, and anything else along the lines of defamation, is going to fail because you need something like actual malice--specific knowledge of falsity--there, and that's essentially impossible to prove, not without somebody admitting that they knew all along everything was false.
Tortious interference is dead for several reasons. First, you need an underlying tort, which, as detailed above, probably doesn't exist. Next, you need specific knowledge of the contract being broken. Finally, you need intentionality here: it's not "I did something that caused the contract to be broken", it's "I did something to cause the contract to be broken." Outside of somebody jumping up and down shouting "I'm tortiously interfering with your contracts," it's basically impossible to prove tortious interference.
> you need something like actual malice--specific knowledge of falsity
IANAL, but as I understand it the definition of malice also includes "reckless disregard for the truth". I'm sure a good lawyer can argue that not having human lawyers review, investigate, and confirm computer-generated abuse reports before sending them to outsiders constitutes a reckless disregard for the truth.
A lawyer might argue that, but it's not going to be a compelling argument. Recklessness is generally a conscious disregard of the consequences; as applied to defamation-like claims, it's generally seen as "you specifically voiced doubts about the truth". Failing to vet automated abuse reports is going to be at best negligence (and I'm dubious of even that, because given the nonbinding nature of abuse reports, it's not clear there is even a duty to candor in abuse reports that one can be negligent of), absent internal complaints about "the accuracy of these things is total shit".
Knowing that you'll absolutely generate false positives and not providing a method of automatically fixing those would be a deliberate action, not recklessness or negligence. I wouldn't be surprised to find code that pings staff based on account size.
It seems like providers could remove themselves from the situation by just giving their clients a "fair use!" response button?
Clearly I'm not a lawyer either, but isn't accusing someone of doing something that is not true and that can have legal ramification a suable behavior in the US?
Eh, dunno about that. They made what would appear to be a false complaint; hard to really consider what was going on here ‘fraud and phishing’!
That the magic robot perhaps did it for them matters not at all, in terms of whose fault it is, though a proliferation of magic robots does make junk services like this more of a problem, in that they can flood the internet with nonsense more effectively.
Then there needs to be some cost associated with sending a completely false claim.
Doesn’t need to be huge – just enough to cover their cost and thereby make it uneconomical to outsource the work these companies are charging their customers for to their targets.
Yes, but also you need to bring your legislators to heel. It is entirely their fault.
That you have grifters like brandshield is a symptom. Although you should never employ their lawyers for anything either of course. Make the taint stick to them.
