A DMCA counter notice is a written statement you send to a platform’s designated agent asking it to restore content that was removed after a copyright takedown. If it meets the requirements of 17 U.S.C. § 512(g)(3), the platform must forward it to the person who filed the takedown and put the material back within 10 to 14 business days, unless that person first notifies the platform that they have filed a lawsuit seeking a court order. Because a counter notice is a statement under penalty of perjury that can lead to a federal lawsuit, it should be used only when the removal was a genuine mistake or misidentification.
If you are still trying to understand the takedown itself, start with our explanation of what a DMCA takedown notice is and our guide to what to do if you receive a DMCA takedown notice. This article focuses on the next step: fighting back.
How the DMCA Counter Notice Process Works
Section 512(g) protects service providers that remove material in good faith, and it pairs that protection with a procedure for putting material back. Once a provider removes your content in response to a takedown notice, it must:
- Take reasonable steps to promptly notify you that it removed or disabled access to the material.
- On receiving your counter notice, promptly send a copy to the person who submitted the takedown and tell that person it will replace the material or stop disabling access in 10 business days.
- Replace the material and stop disabling access no less than 10 and no more than 14 business days after receiving your counter notice, unless its designated agent first receives notice that the complaining party has filed an action seeking a court order to restrain you from engaging in the allegedly infringing activity.
A provider that follows this procedure is not liable for copyright infringement for restoring the material (§ 512(g)(4)), which is why most platforms track the statutory timeline closely.
What a Valid Counter Notice Must Include
A counter notice must be a written communication to the provider’s designated agent that includes substantially the following (§ 512(g)(3)):
- Your physical or electronic signature.
- Identification of the material that was removed or disabled and the location where it appeared before removal.
- A statement under penalty of perjury that you have a good faith belief the material was removed or disabled as a result of mistake or misidentification.
- Your name, address, and telephone number.
- A statement that you consent to the jurisdiction of the federal district court for the judicial district where your address is located, or, if your address is outside the United States, any judicial district in which the service provider may be found, and that you will accept service of process from the person who submitted the takedown or that person’s agent.
Send the counter notice to the provider’s designated DMCA agent. Most major platforms collect these same elements through their own counter notification forms, so read each field carefully and keep a copy of what you submit.
When Filing a Counter Notice Makes Sense
The statutory standard is narrow: you must believe in good faith that the material was removed because of a mistake or misidentification. Situations that often fit include the following.
You Own the Work
The takedown came from someone who does not own the copyright, such as a former collaborator, a competitor, or someone falsely claiming your original photos, videos, music, or code.
You Have a License or Permission
You licensed the material, acquired rights to it, or used it under a license, such as a Creative Commons license, that permits your use. Keep the license terms and any related correspondence ready in case the dispute escalates.
The Wrong Material Was Identified
The notice targeted content that does not contain the claimed work at all, or it swept in lawful material along with an allegedly infringing item.
Your Use Is a Fair Use
Fair use under 17 U.S.C. § 107 is not infringement. In Lenz v. Universal Music Corp. (9th Cir. 2015), the Ninth Circuit held that the DMCA requires copyright holders to consider fair use before sending a takedown notification. A fair use position can support a counter notice, but fair use is fact-specific: courts weigh the purpose and character of the use, the nature of the work, the amount used, and the effect on the market for the original. Our guide to digital fair use walks through those factors.
What Happens After You File
If the complaining party does nothing, the provider should restore your material no sooner than 10 and no later than 14 business days after it received your counter notice. If instead the provider’s designated agent first receives notice that the complaining party has filed an action seeking a court order to restrain the allegedly infringing activity, the statutory restoration obligation does not apply, and the dispute moves to court.
That is when the consent-to-jurisdiction statement matters. Because you agreed to the jurisdiction of the federal district court for your judicial district and to accept service of process, you have removed a common procedural hurdle to being sued. Before you file, ask whether you are prepared to defend the use in litigation if the other side pursues it.
The Risks of Filing a Counter Notice
A counter notice is not just a form. It carries real legal consequences:
- Consent to suit: you agree to federal court jurisdiction and to accept service from the complaining party, which makes it easier for that party to sue you.
- Sworn statement: your good faith statement is made under penalty of perjury.
- Misrepresentation liability: under § 512(f), anyone who knowingly materially misrepresents that material was removed by mistake or misidentification is liable for resulting damages, including costs and attorneys’ fees.
- Infringement exposure: if the complaining party sues and proves infringement, you face the remedies available under the Copyright Act.
Section 512(f) cuts both ways. It also covers anyone who knowingly materially misrepresents that material is infringing. The Ninth Circuit in Lenz held that a failure to consider fair use can raise a triable issue about whether the sender formed a subjective good faith belief that the use was unauthorized, and that a plaintiff may seek nominal damages. Our article on what happens when someone submits a false DMCA claim explains those claims in more detail.
Practical Tips Before You Submit
- Save the removal notice, the original file, upload dates, and any license or proof of authorship.
- Confirm you are responding through the provider’s designated agent or official counter notification process.
- Do not re-upload the removed content while the counter notice is pending; wait for the provider to restore it.
- Calendar the 10 to 14 business day window and watch for any notice that a lawsuit has been filed.
- If you receive a demand letter or a complaint, get legal advice before responding.
Get Help With a DMCA Counter Notice
A well-supported counter notice can restore your content quickly, while a careless one can invite a federal lawsuit. Creators, online sellers, and businesses each face different stakes, and the right strategy depends on who owns the work and how it was used.
If your content has been taken down, the copyright attorneys at Revision Legal can evaluate the takedown, prepare a compliant counter notice, and defend you if the dispute escalates. We also work with independent artists and content creators on platform disputes. Contact us through the form on this page or call (855) 473-8474.
