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DMCA Takedown Notice and Counter-Notice

The notice-and-takedown procedure under which a copyright owner asks a website, host or platform to remove infringing material, the platform removes it to keep its immunity, and the person who posted it may file a counter-notice to have it restored - with the penalties for a knowingly false notice on either side.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

The Digital Millennium Copyright Act gives online service providers - web hosts, platforms, search engines, ISPs - a safe harbour from money damages for their users' copyright infringement, on conditions. The provider must have a designated agent registered with the Copyright Office to receive notices, must adopt and reasonably implement a policy of terminating repeat infringers, must not interfere with standard technical protection measures, and must act expeditiously to remove or disable access to material once it receives a compliant notice or otherwise learns of specific infringement. The safe harbour is why a platform will take content down first and ask questions later: keeping it up after notice puts the platform's own immunity at risk.

A takedown notice is a written communication to the designated agent that identifies the copyrighted work, identifies the infringing material and where it is, gives the sender's contact details, states a good-faith belief that the use is not authorised by the owner, the law or an agent, and states under penalty of perjury that the sender is the owner or authorised to act, with a physical or electronic signature. A notice that substantially fails these elements need not be acted on. The provider removes the material and notifies the user who posted it.

That user may respond with a counter-notice: a statement under penalty of perjury of a good-faith belief that the material was removed by mistake or misidentification, with the user's contact details and consent to the jurisdiction of the federal court for their district. The provider must then tell the original sender, and unless the sender files a lawsuit within a period fixed by statute, the provider restores the material. A person who knowingly and materially misrepresents that material is infringing, or that it was removed by mistake, is liable for the damages and fees the misrepresentation causes; a court has held that a sender must consider fair use before sending a notice. The procedure applies to copyright only - trademark, defamation and privacy complaints go through each platform's own policies.

Where this comes from

The safe harbours are 17 U.S.C. § 512: the hosting safe harbour at § 512(c), the notice elements at § 512(c)(3), the counter-notice procedure at § 512(g), the misrepresentation remedy at § 512(f), the repeat-infringer policy at § 512(i), and the designated-agent directory at § 512(c)(2) with the Copyright Office's registration rules at 37 C.F.R. § 201.38. Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016), requires consideration of fair use before a notice is sent; Viacom International v. YouTube, 676 F.3d 19 (2d Cir. 2012), and BMG Rights Management v. Cox Communications, 881 F.3d 293 (4th Cir. 2018), construe knowledge and the repeat-infringer condition. The counter-notice restoration window is fixed by § 512(g)(2)(C) and is not stated here.

When people hire a lawyer for this

A copyright owner can send a notice without a lawyer, and most platforms provide a form, but a lawyer is worth consulting when the target is a business rather than an anonymous uploader, when the use might be fair, or when the goal is a licence rather than removal - a notice sent carelessly can produce a misrepresentation claim. A person whose content has been removed should consider the counter-notice with care: it puts their name and address in the sender's hands and consents to being sued, and if the sender does sue, the fair-use or licence question is decided in court. Platform-specific appeals are often the better first step.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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