Writing a DMCA Counter-Reply Put Back Notice

Posted by admin on 15 June, 2009

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This item was filed under [ Copyright Law, Intellectual Property, Internet and E-Commerce ]

If you have been served with a DMCA takedown notice from your ISP or web host notifying you that you are either hosting or have uploaded allegedly infringing materials, you have an opportunity to reply and disagree with the copyright infringement allegation. This article will explain the DMCA take down policy, the counter reply, what you need to create your own counter reply, and how the entire process works with regard to timing and requirements.

The DMCA Take Down and Counter Reply Process

The following is generally the manner in which a DMCA notice and counter notice occur:

The copyright owner or Complainant (the person who complains) crafts a DMCA Takedown Notice and sends a complaint to the ISP or web host or "Service Provider"
In order to receive the benefits of not having secondary copyright infringement liability, the Service Provide must remove the materials expeditiously after receiving a valid takedown notice
If the Service Provider takes down the materials, the Service Provider must take reasonable steps to promptly notify the Subscriber (the person who uploaded or hosted the materials) of the takedown
If a counter-notice is received by the Service Provider from the Subscriber, forward it to the complainant and note that the materials will be made re-accessible and available online within 10 business days
If Complainant doesn’t notify the Service Provider that it has filed a lawsuit against the Subscriber and/or Service Provider after 10-14 business days, the Service Provider may reinstate the contested materials online

What Must Be Included in a Counter Reply to a DMCA Take Down Notice

Identification and the original location the material that was removed (if you don't remember exactly where, do your best - but this should be contained within the valid takedown notice to which you are responding)
A statement made by the Subscriber, under penalty of perjury, that the material was removed due to mistake or misidentification by the Complainant (there was authorization by another party who had rights, the materials are incorrectly identified, etc.)
The Subscriber’s name, address and phone number
The Subscriber’s consent to (a) federal court jurisdiction local to the address (if overseas to an appropriate judicial body) and (b) to accept service of process from the complainant
The Subscriber’s physical or electronic signature

While the DMCA tries to provide a fair process for the copyright holder and alleged infringer, a valid takedown frequently results in the takedown of content with a mere valid DMCA takedown notice. Even if you respond with an appropriate counter notice, the materials will likely be down 10-14 business days. Sending an immediate counter reply could reduce this time period since the Complainant may agree that its notice included incorrect assumptions and withdraw the takedown demand.