Understanding the Nuts and Bolts of the DMCA Takedown Notice — The Counter-Notice

In Part 1 of this series on DMCA takedown notices, we discussed what a DMCA takedown notice is and what you need to include for it to be valid. In this article, we’ll go over the process for what you can do if you wrongly receive a notice.

The most common response to a DMCA takedown notice is to send what is known as a counter-notice. Much like the takedown notice, you must follow a specific set of instructions for your counter-notice to be effective. The requirements are as follows.
1. The counter-notice must be in writing.
2. You must identify the copyrighted material you were accused of infringing that was blocked by your ISP.
3. You must specify where the material was previously found.
4. A statement, under penalty of perjury, explaining you have a good faith belief the material was removed as a result of mistake or misidentification.
5. A statement that, if the dispute comes to a copyright suit, you consent to the jurisdiction of the Federal District Court for your district.
6. Your contact information.
7. It must be signed by you.
When the counter-notice is complete, you must send it to the issuing service provider who will then forward it to the copyright holder or her agent.

Now, the counter-notice is a great device, but whether it is effective in the end really comes down to whether you, as the alleged infringer, had the right to be using the copyrighted work in the first place. And that’s a discussion that comes down to whether your use of the material constituted fair use or not. Now, fair use is an incredibly sticky area that could easily be discussed in a week’s (or even a month’s) worth of posts, so I’ll try to sum it up as concisely as I can here. Fair use is essentially the use of a copyrighted work in a certain way, such as for parody or instructional purposes, where the alleged infringer is not liable for infringement because of the certain circumstances of how the work is being used in that particular case. This is an incredibly fact-intensive analysis requiring the consideration of several factors, and you should discuss any type of fair use with a copyright attorney before you jump to the conclusion you are fairly using a copyrighted work.

Now the counter-notice is a great first step to dealing with a DMCA takedown notice that shouldn’t apply to you, but what if you get a takedown notice that is completely fraudulent on its face. Well, you have an option. The DMCA allows for claims against the copyright holder or her agent who issued the takedown notice if the issuer knowingly materially misrepresented the facts specified in the takedown notice. While it is true that’s a very high bar to overcome, if you are faced with a copyright holder who has absolutely no justification to send you a takedown notice, it may be in your best interest to contact a copyright lawyer to see if you have a case. After all, the DMCA provides for damages and attorney fees if you win.

Photo courtesy: gagilas


Eric Norton

Eric Norton

Business & Trademark Attorney at Norton Law Corporation
Eric Norton is a business and trademark attorney, and the founder of Norton Law Corporation, a modern law firm designed to help entrepreneurs with their legal needs. Eric also enjoys photography, gaming (tabletop and video), watches, and good design.
Eric Norton

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