What is a DMCA counter notice?

The Digital Millennium Copyright Act (DMCA) protects technology, devices or services that are copyrighted. The act was written to protect IP owners, content hosts and internet service providers. It also provides a safe harbor for hosts and ISPs when users commit infringement on their platforms.

A DMCA counter notice is the response an organization submits when presented with a valid DMCA takedown notice. It is submitted to the service provider after the DMCA takedown notice has been received and after the purportedly infringing content has been removed.

After a counter notice has been received, a service provider must wait 10-14 days before they can reactivate the claimed infringing content.

Counter notices are typically submitted when a party feels that their content has mistakenly (or maliciously) been disabled by a DMCA takedown request. The DMCA requires that a party submitting a counter notice is submitting under penalty of perjury – aka, it is a crime to intentionally lie in this sort of a declaration and submitting a counter notice could result in being sued for money damages.

It is a legal risk, in a sense, to file a counter notice. However, the DMCA requires hosts to ban repeat infringers and if a party does not file a counter-notice, a DMCA takedown counts as a strike against the infringer. Sometimes, it may be worth filing a counter notice in order to keep using a host’s services, even if there is no intent to keep the original file that was taken down online. It is best to consult an attorney directly about the pros and cons of a counter notice, depending on the situation.

Similar to submitting a takedown, a DMCA counter notice must include the following (17 usc 512 (g)(3)):

  • (A) A physical or electronic signature of the subscriber.
  • (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  • (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
  • (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person

GitHub has an excellent overview of what the process is like to submit a DMCA counter notice on their site, with this snippet being particularly helpful:

In order to file a counter notice, you must have “a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.” (U.S. Code, Title 17, Section 512(g).) Whether you decide to explain why you believe there was a mistake is up to you and your lawyer, but you do need to identify a mistake before you submit a counter notice. In the past, we have received counter notices citing mistakes in the takedown notice such as: the complaining party doesn’t have the copyright; I have a license; the code has been released under an open-source license that permits my use; or the complaint doesn’t account for the fact that my use is protected by the fair-use doctrine. Of course, there could be other defects with the takedown notice.”

Note: a counter notice (also referred to as a counter claim) can’t be used to defend against a takedown notice. It also can’t be used to delay the process of a takedown notice.