A counter notice is a legal request that an online content provider restore material that was previously removed or disabled due to a copyright infringement notice. If you believe your content was wrongly targeted by a copyright complaint, you can file a counter notice to potentially have that content reinstated.
When should you file a counter notice?
You should file a counter notice if you believe that the material in question does not actually infringe upon someone’s copyright, or that you have a valid legal defense for the use of the copyrighted content. Some common reasons to file a counter notice include:
- Your use of the content qualifies as fair use or fair dealing
- You have permission or a license to use the copyrighted material
- Your work only uses a minimal amount or insignificant portion of the copyrighted content
- The copyrighted work is in the public domain or you have other legal rights to use it
- You believe the copyright complaint was fraudulent or improper
However, you should only file a counter notice if you have a good faith belief that your content was removed by mistake or misidentification. If you knowingly posted infringing material, filing a counter notice could expose you to legal penalties.
What is the process for filing a counter notice?
The specific process for filing a counter notice depends on the online content provider or platform where your material was removed. However, there is a general procedure under the Digital Millennium Copyright Act (DMCA) in the United States:
- The copyright holder submits a takedown notice to the content provider identifying the allegedly infringing content.
- The content provider disables or removes the identified content to avoid liability.
- If you believe the takedown was improper, you submit a counter notice to the content provider.
- The counter notice includes:
- Your contact information
- Identification of the material that was removed
- A statement that you have a good faith belief the material was removed by mistake
- A statement confirming the accuracy of the notice under penalty of perjury
- The content provider forwards your counter notice to the copyright holder.
- If the copyright holder does not take legal action within 10-14 days, the content provider is permitted to reinstate the material.
So in summary, you notify the content platform or provider hosting your material with specific information, they forward it to the complaining party, and if no further legal steps are taken, your content can potentially be restored.
What information must be included in a counter notice?
Under the DMCA, a valid counter notice must contain:
- Your name, address, phone number, and physical or electronic signature
- Identification of the material that was removed, preferably by URL
- The location or URL where the material was posted before removal
- A statement that you consent to the jurisdiction of your local federal court
- A statement under penalty of perjury that you have a good faith belief the material was removed by mistake or misidentification
The content provider will have specific forms or procedures for filing the counter notice. Be sure to follow these exactly and provide all information accurately to ensure proper processing of your request.
What happens after a counter notice is filed?
Once a valid counter notice is received, the content provider must take the following steps:
- Forward the counter notice to the original complaining party.
- Inform the complaining party they have 10-14 days (depending on jurisdiction) to take legal court action against the counter notice filer.
- If no legal action is taken after 10-14 days, reinstate the removed material within a reasonable amount of time.
- Do not liability for copyright infringement solely by replacing the material, as long as the prescribed process is followed.
So after you file the counter notice, the ball is in the complaining party’s court – they must decide whether to escalate the issue to a legal claim within the designated window of time. If they do nothing, the content provider can lawfully restore your material without worry.
What are the risks of filing a counter notice?
While a counter notice can be an effective tool to deal with wrongful takedowns, there are some risks to consider:
- The copyright holder may decide to sue you for infringement, costing time and money to defend even if you ultimately prevail.
- Your contact information is provided to the complaining party, who could potentially harass or threaten you.
- There is no guarantee the content provider will actually reinstate your content after the waiting period.
- You may be exposed to additional penalties if your attestations in the counter notice are false.
A counter notice is not a guarantee that your content will be restored. Evaluate your specific situation carefully before deciding if it is worth the potential side effects.
What alternatives are there besides a counter notice?
In some cases, there may be better options than filing a counter notice:
- Direct negotiation – Contact the complaining party first to politely ask if the issue can be resolved directly through retraction of the notice, licensing, or other mutually agreeable solution.
- Filing your own DMCA takedown – If your content was copied or shared by others without permission, file DMCA notices to have that infringing content removed.
- Self-assessment – Review if your use of copyrighted material was fair and evaluate if edits could strengthen your fair use defenses.
- Seek legal guidance – Consult an intellectual property lawyer to assess your specific situation and develop an informed strategy.
- Strategic adjustments – Modify or supplement your content to reduce reliance on the copyrighted material in question.
Consider if any of these options would be more beneficial or entail less risk than immediately filing a counter notice.
Example counter notice templates
While each content provider will have their own specific forms and requirements, here are some example templates illustrating the key elements of a DMCA counter notice:
Example 1
Date: [Insert date]
To: [Name of Designated Agent at Content Provider]
From: [Your name and contact information]
Re: Counter Notice for mistaken DMCA takedown
Dear Sir/Madam,
A DMCA takedown notice was recently submitted against my content at the following URL: [insert URL]. I have filed this counter notice as I believe this takedown was mistaken, and that the content in question does not constitute copyright infringement.
This content should be reinstated immediately under 17 U.S.C. § 512(g). I declare in good faith and under penalty of perjury that:
– I have a good faith belief the material was removed due to mistake or misidentification.
– I consent to the jurisdiction of the Federal Court for the judicial district in which my address is located.
– I agree to accept service of process from the complainant.
Please forward this counter notice to the complaining party. If no lawsuit is filed within 10 business days, I expect the disabled content to be reinstated.
Sincerely,
[Your full legal name and electronic signature]
[Your physical address, email and phone number]
Example 2
Date | [Insert date] |
---|---|
From: | [Your name and contact information] |
To: | [Name of Designated Agent at Content Provider] |
Subject: | Counter Notice for mistaken DMCA takedown |
Dear Sir/Madam,
I am writing in response to the removal of my content at [insert URL] due to a DMCA takedown notice. I have a good faith belief that this content was removed as a result of misidentification or mistake. I declare that:
- My contact details are as follows: [insert name, address, phone number and email]
- I consent to the jurisdiction of the Federal Court in the district where my address is located
- I will accept service of process from the complaining party
- The removed content previously appeared at [insert URL]
- Under penalty of perjury, I have a good faith belief that the material identified in the DMCA notice was removed in error as a result of misidentification
I request that this content be immediately reinstated pursuant to 17 U.S.C. § 512(g). Please inform me once this has been done, and please forward this counter notice on to the complaining party.
Sincerely,
[Your full legal name and electronic signature]
Conclusion
In summary, a DMCA counter notice is a specific legal process to restore online content that was disabled or removed due to a copyright complaint. It can be an effective recourse if you believe your content was wrongly targeted, but also comes with some legal risks. Use counter notices judiciously and be sure to comply precisely with the content provider’s policies and forms when filing one.