DMCA counter-notices explained: what happens after a takedown is disputed

What a counter-notice is

Section 512(g) of the United States Digital Millennium Copyright Act (DMCA) protects a host that removes material in good faith after a notice. It also sets out a route for the user to challenge the removal. That challenge is the counter-notice.

The host passes the counter-notice to the person who sent the original notice. This is why a notice always needs reliable contact details: the other side will see them.

What a counter-notice contains

Like a notice, a counter-notice has required elements under 17 U.S.C. § 512(g)(3):

1. The signature of the user, physical or electronic.
2. Identification of the material that was removed and where it appeared before removal.
3. A statement, under penalty of perjury, that the user has a good-faith belief the material was removed because of a mistake or misidentification.
4. The user's name, address and phone number.
5. A statement that the user consents to the jurisdiction of the federal district court for their address, or, if outside the United States, any judicial district where the host can be found, and will accept service of process from the person who sent the notice.

A counter-notice that is missing one of these does not have to be acted on by the host.

The restore window

After the host receives a valid counter-notice, it forwards a copy to the sender of the original notice and tells them the material may be restored in 10 business days. The host must then restore it no sooner than 10 and no later than 14 business days after receiving the counter-notice, unless it first receives word from the sender that they have filed a court action against the user to stop the activity.

In practice this means the rights owner has a short window to decide. If nothing is filed, the host can restore the material and, as long as it follows the process, keeps its protection from liability for having removed it and for having put it back.

What a rights owner can do next

When a counter-notice arrives, there are a few paths. Which one fits depends on the facts and on advice from a lawyer:

• Review the claim again. Check the rights, the licences and whether the material is really a copy of the protected work. If the first notice was wrong, withdrawing it is often the best course. Notices are sent under a statement made under penalty of perjury, and section 512(f) provides liability for knowingly materially misrepresenting that material is infringing.
• File a court action. The sender tells the host that a suit has been filed, and the host leaves the material down while the case runs.
• Contact the user. Sometimes the dispute is a misunderstanding that can be settled directly, for example by agreeing a licence or a correction.
• Let the window pass. If you decide not to pursue it, the host may restore the material. Keep the record of the notice, the counter-notice and the outcome.

Writing notices that avoid disputes

Most counter-notices come from errors that could have been avoided before sending:

• Check licences first. A copy posted by a licensed partner, a broadcaster or a platform is a mistake to report.
• Be exact about the work and the location. Name the work and give the precise URL of each item. Vague notices are easy to dispute.
• Review a match before you send. Automated matching shows the content is the same, not that the use is unauthorised. A person should confirm.
• Keep evidence. Save a capture of the page, the date and how the work was identified, so the notice can be explained later.
• Use correct contact details. The user and the host will rely on them.

Repeat infringers

The DMCA also expects hosts to have a policy for ending the accounts of users who repeatedly infringe. Keeping a clean record of notices and their outcomes helps when you ask a host to apply that policy to an account that keeps reposting.

Counter-notices outside the United States

The 10 to 14 business day mechanism is part of United States law. Hosts elsewhere have their own complaint and review processes, and many offer the user a way to dispute a removal. The details differ by region, so check the host's published policy. Our guide to takedowns outside the US covers the European approach.

Keep a record

Whatever the result, keep the notice, the host's reply, any counter-notice and the dates in one place. A clear record shows what was done and why, and it makes later notices about the same user or the same work easier to support.