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What is a DMCA Counter Notification?

Screen shot from YouTube tutorial re filing a DMCA counter notification

Screen shot from YouTube counter notification tutorial

In Terms of Use and the Digital Millennium Copyright Act (DMCA), I discussed DMCA provisions pertaining to takedown notices. This post discusses how an online service provider should respond to a takedown notice and the role of the counter notification.

17 U.S.C. Section 512(c)(1)(C) states that for a provider to be protected by the DMCA, it must respond to a valid takedown notice by “respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing….”

Receipt of Counter Notification

Section 512(g)(2) goes on to state that once the material has been removed or access has been disabled, the provider must take additional steps to maintain DMCA protection.

  • The provider must take reasonable steps to notify the subscriber (the person who provided the material) that it has been removed or access has been disabled.
  • Upon receipt of a counter notification (described below), the provider must forward the counter notification to the person who provided the takedown notice and must inform that person that the material, or access to it, will be reinstated within ten business days.
  • The provider must reinstate the material and access to it within 10-14 business days unless the provider’s designated agent receives from the person who provided the counter notification notice that the person who filed the takedown notice has filed a lawsuit seeking to restrain the subscriber’s infringing activity.
Counter Notification Contents

Section 512 (g)(3) states that a counter notification must include substantially the following.

  • A physical or electronic signature of the subscriber.
  • Identification of the removed or disabled material and its former location.
  • A statement, under penalty of perjury, of a good-faith belief that removal or disabling the material was the result of mistake or misidentification.
  • The subscriber’s name, address and telephone number; and a statement that the subscriber will consent to court jurisdiction and will accept service of process from the person who filed the takedown notice.

Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.