Copyright How to Respond to a DMCA Takedown: The Counter Notice

  1. If you have been served with a DMCA takedown notice from your ISP or web host notifying you that you are hosting or have uploaded infringing materials, you will have an opportunity to reply. The Counter Notice is your formal disagreement with such a copyright infringement allegation and the removal of content and demand to put back the content online. This article will explain the DMCA take down process, counter notification, and how to create your own counter notice to reply.

    The DMCA Take Down and Counter Notice 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 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.
    Intellectual Property:
    DMCA (Digital Millennium Copyright Act)

    Article Tags

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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