7 Common Questions About DMCA Counter-Notices


I’ve talked a great deal on this site about how to use the DMCA takedown process to remove plagiarism and other infringements from Web sites when absolutely necessary. However, there is a second, rarely used part of the DMCA process that is equally vital and important to understand.

The counter-notice provision is designed to act as a balance to the power that the takedown process gives copyright holders. It serves as a buffer against the damage caused by false takedown notices and discourages abuse of the process, while giving those who are subject to a DMCA notice a means to have removed works restored.

However, as with the actual takedown process, it is a system that is, on occasion, abused, used to restore access to knowingly infringing materials. Still, the process is vital to the notice-and-takedown system and one that every DMCA filer should be aware of and understand before sending off their notice.

Because, while counter-notices are exceptionally rare, especially when dealing with true and accurate takedowns, they do happen and are a very real possibility.

1. What Are Counter-Notices?

To understand what a counter-notice is, we have to first understand what a DMCA notice is.

Under the DMCA, if a copyright holder swears under the penalty of perjury (among other statements) that they are the copyright holder and that a work is infringing on their copyrights, the host of the content (or a search engine if applicable) have to disable access to the work to avoid liability.

A counter-notice works in the reverse. The subject of the DMCA notice makes similar statements claiming that the work is not an infringement, either that they hold the rights to it or their use of it is legal (fair use, licensed, etc.) and that the original notice was filed in error.

2. What Is Required to File a Counter-Notice?

The law sets up very strict guidelines for what is required in a DMCA counter-notice and they include the following:

  1. A physical or electronic signature of the subscriber.
  2. 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.
  3. 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.
  4. 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.
  5. 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 or an agent of such person.

Much of this language is ripped directly from the notice provision but the important addition in the inclusion of jurisdiction for the matter, which is always a U.S. Federal court, even if the subject of the DMCA notice is located outside of the country.

3. What Happens Once a Counter-Notice is Filed?

A host then passes along the counter-notice to the person who filed the original notice. The works remain offline for 10 business days, after which, if no additional action has been taken by the filer, the works can be restored.

The copyright holder can petition the court for an injunction to prevent the restoration of the original works, but if it is not obtained within the time allotted, the works are restored to the site.

4. What Can Copyright Holders Do After a Counter-Notice Has Been Filed

As mentioned above, the copyright holder can seek an injunction in court to prevent the restoration of the work. However, such injunctions usually involve a great deal of time and expense. Furthermore, since the individual involved can simply switch hosts to get around the injunction, they often are not worthwhile.

The only practical response to a counter-notice is, usually, to file a lawsuit and litigate the matter. However, lawsuits are not always practical unfortunately though the act of filing a counter-notice may open up the defendant to additional damages.

However, that is a matter to discuss with an attorney.

5. How Common Are Counter-Notices?

In cases where the original notice was clearly valid, very rare. Having filed hundreds of DMCA notices over the years, I have seen only two, but I have also always been careful to only file in clear-cut cases. Both times I saw counter-notices involved situations where the infringer had a grudge against the copyright holder and other litigation was ongoing or being filed.

Counter-notices are also, unfortunately, rare in cases of false DMCA notices but are becoming more common in those cases.

6. Why Are Counter-Notices Rare?

Simply put most infringers (as well as most legitimate users) aren’t invested enough in their uploads to invest the energy to learn how to file a counter-notice or take the legal risk in filing one. It is easier and faster to just remove the work and be done.

Furthermore, most people who are subject to a DMCA takedown are unaware of the opportunity to file a counter-notice and many hosts do a very poor job of explaining the process.

Finally, in cases where the subject of the notice does wish to restore access to the work, it is usually easier and faster to just move to a new host than it is to file a counter-notice, especially in cases of individual files.

In short, there is rarely motivation to restore the file and, when there is, there are easier ways to do so.

7. Should I File a Counter-Notice?

If you have a false DMCA notice filed against you, either on accident or maliciously, you probably do wish to file a counter-notice, after consulting with an attorney if at all possible.

The reason is that the DMCA requires hosts to ban repeat infringers from using their service and, if you do not file a counter-notice, the takedown counts as a “strike” against you and you can be banned even though you are not infringing.

If you wish to keep using your host, it is best to file a counter-notice, even if you do not wish to keep the file online.

Bottom Line

The counter-notice process within the DMCA is just as important and as valuable as the actual takedown process. However, it is also just as prone to abuse.

Though it very rarely occurs. a counter-notice can put a copyright holder in a very bad position if misused, forcing them to choose between either leaving the works online or filing an expensive and time-consuming lawsuit that is unlikely to resolve the matter.

Fortunately though, those situations are extremely rare for many different reasons but it is still a possibility to consider when filing a takedown notice.

In the end, it is important to understand the full DMCA notice-and-takedown process and not view the process as just a simple way to remove work. The DMCA carves out an entire process that gives both sides of the dispute a set of rights, rights that you need to be aware of.

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  1. It creates a real dilemma for a copyright holder if a bogus counter-notice is filed. Who wants to hire an attorney and spend $10,000 (minimum) to have someone seek a permanent injunction and statutory damages when the infringer (a) may not have any assets, (b) may simply post your work again on another forum, or (c) may simply post it anonymously on the same forum? In the end, especially when dealing with an overseas infringer, you may find yourself in a very expensive battle which is impossible to ever really win.

  2. It is a very serious problem, you are right. However, in my experience, such counter-notices are very rare. Largely because people don't want to swear under the penalty of perjury to something they know to be untrue. That raises the stakes in their mind (and in reality) and they don't want to take the risk of someone who is motivated able able to go after them.

    There is a need for an easier way to handle such copyright complaints though, one of the reasons I've seen the idea of a copyright small claims court be kicked around for just such cases. It's an interesting idea at least.

  3. “may simply post it anonymously on the same forum?”

    John Doe Subpoena per 17 USC 512. There is no real “anonymity” on line in the US if you are a copyright infringer. I assume foreign jurisdictions may have a similar tool.

  4. What should happen according to the DMCA procedure when the same person sends a complaint on the same content for the second time after the complainant has not filed a law suit at the first round on a counter notice?

  5. There could be several complications involved in the counter-notice.What if the DMCA notice holds true and the infringer fails to pay the penalty amount?
    There is also a possibility that the infringer might trick in such a way that your original but unprotected work content will be refuted to have your claim on it,invoking the counter notice working in reverse and you do not have enough proofs to prove the authenticity of your work.Also if the process takes some incredible amount of time,my work content/post/blog would be stale and out-of-date resulting into no one wanting to read it then.
    There could be several instances when you find yourself trapped.
    For me this topic is very subjective and debatable.

  6. The DMCA notice is also easily abused for example people who use false identities to file claims in order to extract a person’s private personal information such as name and address in order to harass them. It’s unpleasant that this abuse is permitted but legitimate copyright holders must provide real details in order to maintain control of their content.

  7. How about when you get your content reinstated can that person or another person file another dmca complaint and just keep rebooting the process? Is there any protection for people who have legit work which keep getting dmca notices but keep filing counter notices, do they have any protection to protect them from getting a dmca notice filed again by a different person perhaps?

  8. ariel this is a good question, could the author please respond?

    Can an author who holds a valid license to use content sue for lost monetary damages due to the downtime a DMCA request caused? What if the copyright holder continues to file DMCA takedown requests as ariel explained? This could lead to substantial monetary loss for someone who holds a license to use the copyright material (eg: think Animoto videos on Youtube being taken down by music licensor holders, even though the uploaders have the rights to the video – can these uploaders sue for lost monetary damages during the downtime)?

  9. I know my comment is a little late but I really wanted to just give my input here.
    My issue revolves around Steam (Which is a video game distribution platform owned and run by Valve). To understand the intricacies of the situation, I need to explain the baseline of where this whole situation started. For purposes of explaining this, I will be referring to the company that supposedly sent out this claim, against an item I uploaded to the Steam workshop”A Company”
    That being said here is the story:

    I had a run in with “A Company” on the companies official site with both the owner and the worker. (It is important to note that the website was actually created and run by the company itself, and not a third party site that the company approved.

    The situation was me challenging the write of the rules by pointing a few things out that were incorrect, which in turn they couldn’t handle and so they banned me from the site. Fine it’s their site and w/e.

    So I took my findings to another site in which I was followed to that other site by the rules writer who proceeded to use his position to bully me by instigating problems and then filing reports to get me barred from that site as well. (This was a mess but that’s the baseline). I then wound up having my youtube channel attacked by this company for a video I posted regarding something that the people on the official forum wanted done, that I happen to already have done, and was showing it. So the company then sent out a copyright infringement claim to get the video removed. (You assume it’s them) despite millions of other videos showing their product in use but none of them go hit.

    So I then upload the content I had in that video to the Steam workshop, which in turn now they attacked my workshop item. Despite there being 5 of the same exact infringing item remaining on the workshop (Even to this day) no removal.

    In case you missed the pattern emerging in this, this company has been following me around the net purposely harassing me and have now used a DMCA claim to harass me, which is all due to what happened on their website.

    So that is the story..now let me explain what I did, and what is currently happening:

    Upon getting an email from Valve, I point blank told Valve in so many words I don’t believe you have a claim. If there really is a claim then you should have no problems mailing it to me.

    I proceeded to inform the sender of the email that I’m not going to sign anything you send to me in email form because anyone can throw together an email, I also don’t know who you are, and because of all the Identity theft, phishing emails and the like, I’m not just going to consent and allow my personal information to be given to an unknown entity and the counter claim thing you sent in an email isn’t anything verifiable that it is even a legally binding document. If you want me to to post a counter claim then send me the actual document on official form in which turn I will gladly have it verified.

    But until then I’m under no legal obligation to remove anything because you have not actually provided any official claim so no copyright infringement has occurred. I also included a link to a topic on the company’s official site (Run by them) showing that the company actually didn’t mind their product being on the Steam workshop, as well as I gave the actual workshop links to 5 of the exact same item Valve claims the company doesn’t want on the workshop but yet allowed to be there.

    In short the Valve employee emailed me back saying I didn’t use the counter claim notification they emailed me (Which proves they don’t bother reading anything), and told me to use the counter claim notification.

    I emailed them back saying the email you totally tossed aside and didn’t bother reading, contained all the detailed information in it that explains not only why I don’t need to use anything in email they sent me but you’re required by law to produce the claim once I ask for it. I left the mailing address along with more than ample time to send me the claim, however if they needed more time to reply to this email saying how long and when, but if they didn’t reply saying they needed more time, then I will expect it in 2 weeks. If you fail to send the claim then I will then upload the item you removed again to the Steam workshop.

    Well in short I never got the claim, let 2 weeks go by, so I uploaded the workshop item again, along with a detailed explanation of your rights about DMCA claims and what to do if Valve says they got one. Well sure enough they pulled the same crap again, except the banned my account for what they said was a repeated terms of service violation.

    At this time I proceeded to request a refund and if they didn’t I would be suing them in court to get it. So now I have small claims case against Valve on November 7th 2016.

    A few things to make note of:
    1. At no time during this and even now have I ever said a claim does not exist.
    2. At no point in time during this did I ever claim ownership to the companies product in any way shape or form.
    3. I very clearly explained multiple times that I would absolutely and immediately remove the item from the Steam workshop once I got the claim.
    4. Shortly after I challenged Valve to produce the claim, my other workshop items mysteriously all of a sudden were in terms of Service Violations and were also removed.

  10. Continued from above..

    I forgot to mention, during my Small Claims case due to the circumstances involved that it’s not unreasonable to petitioning the court to have this product on the Steam workshop completely removed because it does in fact contain multiple copyright and trademark infringements till on it.

    In closing the legal system needs to intervene with companies such as Valve and stop them from this blatant abuse.

    I am also in the process of trying to sit down the the attorney general to get a bill passed forcing Video game developers to be held accountable for what goes on in their games. Because when it comes to a TOS too many companies do things then try to hid behind the TOS, totally ignoring all the other laws and things that get factored into this such as THE FTC laws, consumer rights, Digital contract laws.

    So anyone reading this, please do not let yourself be bulldozed and intimidated by this type of abuse. Video game companies and distribution platforms such as Steam, have gotten away with far too much, for far too long. And it’s time the legal system needs to intervene.

    IF anyone would like to talk to me regarding this then you can call me on Skype:

    My Skype contact information is:


    – Matt –