DMCA Takedown Notices: What They Are and How to Respond

If you receive a DMCA takedown notice, it means that your content has been removed from a website or internet platform. But if your use is not copyright infringement, you can fight the takedown and have your content restored.

The Digital Millennium Copyright Act (DMCA) requires service providers (ISPs) and other internet platforms to quickly remove content that infringes on a copyright. But not all DMCA takedowns are valid. If you think your content has been wrongly removed from a website or social media platform, you can file a counter-notice to have it restored.

This article will provide an overview of the DMCA takedown process, including options if your content has been taken down.

What Is the DMCA?

Congress enacted the DMCA to address copyright infringement on the internet. The DMCA requires ISPs and other internet platforms to quickly remove content that infringes on a copyright. In exchange, ISPs and platforms that follow the DMCA's takedown and counter-notice requirements receive protection from liability for copyright infringement by their users. (Pub. L. No. 105-304 (1998).) (17 U.S.C. 512 (2022).)

For copyright owners, the DMCA takedown is a tool to stop ongoing online infringement of their copyrights.

What Is a DMCA Takedown Notice?

When you receive a DMCA takedown notice, it means that your ISP, an internet platform (such as YouTube), or a social media site (such as Instagram) has removed content from your website or social media account because it allegedly infringes on someone else's copyright.

If you have the right legal grounds, you can make them put your content back up.

How the DMCA Takedown Process Works

Each ISP or web host has its own system for removing content that violates a copyright. For example, if you use copyrighted music on a video you post, YouTube might mute or delete the music but leave the video up. Facebook will remove a copyrighted video from your timeline or newsfeed. Twitch will disable a stream from your channel, and so on. The platform will also notify you and, if applicable, provide contact information for the person who lodged the complaint.

While the procedures vary, the one common denominator is that the law requires service providers to swiftly remove material that infringes on a copyright. The DMCA protects these providers from lawsuits by the owners of copyrights only if they promptly remove the offending material.

Account holders who receive DMCA takedowns usually get a warning (referred to as a "strike") for each infraction. Service providers typically terminate their accounts after a series of infractions (usually after strike three). In the worst-case scenario, users who knowingly and willingly post copyrighted material can be subject to criminal penalties and lawsuits.

Example of a DMCA Takedown

Here's an example of how you could get a DMCA takedown notice and the consequences a service provider would impose.

Let's say you're a personal trainer who operates a YouTube channel that offers subscribers daily workout routines. You think you can get more subscribers if you amp up the energy of your video, and you decide to add a few of your favorite songs by your favorite group to one of your routines.

Quicker than you can say, "Give me five more reps," you get a notice from YouTube telling you it has muted the music on your video and that you've been given one strike for infringing on a copyright by using music that doesn't belong to you.

In this example, you didn't realize you did anything wrong and you likely won't repeat the mistake. If you commit no further infractions and agree to complete YouTube's copyright school, your strike would be removed after six months. If, on the other hand, you continue to post videos using copyrighted music, YouTube would suspend your account after you receive three strikes.

Procedures used by other providers vary, but they usually follow a similar process of warnings and include terminating the accounts of repeat offenders.

You Received a DMCA Takedown Notice. Now What?

You have two choices when your content is taken down:

  1. Accept the takedown and live without the content in question.
  2. Fight the takedown to have the content restored to where it was before the takedown.

Fighting the Takedown: Counter-Notice

If you believe that your content wasn't infringing on the other party's copyright, you can dispute the takedown by filing a "counter-notice." When the ISP or platform receives your counter-notice, the other party gets 14 days to file a copyright infringement suit against you. If no suit is filed, the ISP or platform is required to reverse the takedown and restore the content to the site or account from which it was removed. (17 U.S.C. 512(g)(2) (2022).)

Reasons for a Counter-Notice

You file a counter-notice when you believe that the takedown was improper because the content in question doesn't infringe the other party's copyright. Your content might not be infringing for a number of reasons:

  • No copyright to infringe. The content that's supposedly being infringed isn't covered by copyright. No copyright means no copyright infringement. For example, the copyright has expired and the content is in the public domain. Or the content consists of facts or ideas that aren't copyrightable.
  • You have a license or permission to use the content. The copyright owner has made a mistake. You have a valid license or permission to use the content.
  • The wrong party filed the takedown request. The content is copyrighted, but the party that complained isn't the copyright owner or an agent of the copyright owner. Only the copyright owner or their agent can file a DMCA takedown request.
  • Fair use: Your use isn't infringing because it qualifies as fair use.

The law imposes no deadline for submitting a counter-notice, but it's good practice to file as soon as you are confident that your counter-notice has merit, so that you can get your content back up as soon as possible.

How to File a Counter-Notice

Most ISPs and web hosts now have online forms for filing a counter-notice. If the entity that you're dealing with has an online form, use it. If it doesn't, you can use the sample counter-notice form from the U.S. Copyright Office, or you can respond in a letter, so long as it contains the information listed below.

If the company in question doesn't have an online form, the takedown notice you received should contain contact information for submitting a counter-notice. If the takedown notice doesn't have this information, check the website of the ISP or platform.

Your counter-notice should contain the following information:

  • The date.
  • Your name, address, email, and phone number.
  • A description of the material that was removed, disabled, or muted, its location (URL) prior to the removal, and the date of the removal.
  • A statement that you believe the material was removed as a result of a mistake or misidentification. (You can also explain why you think the material was wrongfully removed—for instance, that you have a license to use the material or that you believe your use qualifies as fair use. But read below for more on providing this sort of information.)
  • That you consent to the jurisdiction of the federal district court for the judicial district in which you are located
  • That you accept service from the person who provided the takedown notice or an agent of that person.
  • Your signature affirming that you understand you've made your statement under penalty of perjury. (Remember: You can be criminally prosecuted for lies and misrepresentations.)

Providing a reason why you think your use was within bounds is optional—all that's required is that you state, under penalty of perjury, that you have a good faith belief that the takedown was the result of mistake or misidentification by the copyright owner. If you do provide a reason, your reason will be conveyed to the copyright owner. Whether giving a reason is a good idea in your particular case is a matter of legal strategy that you or your lawyer will need to determine.

Some ISPs and platforms might require more information than what's covered in the list above for counter-notices sent to them outside their automated systems. You can find their requirements as well as the forms they provide on their websites.

What Happens When You File a Counter-Notice?

As with a takedown request, the ISP or website host isn't required to weigh the merits of your counter-notice. Upon receiving a counter-notice, the service provider notifies the party that sent the takedown request and informs them that they have 14 days to file a lawsuit against you if they still believe you've infringed on their copyright.

If the other party doesn't file a lawsuit within the 14-day period, your content goes back up and the service provider should remove any "strike" that was applied to your account.

Be careful about this aspect of DMCA counter-notices: Because of the 14-day deadline, filing the counter-notice can spur the copyright owner into filing a lawsuit.

If the copyright owner sues you, you'll have to go to court to defend your position. Be aware that copyright infringement suits are expensive to defend against and damages can be steep if you lose. If you think that the copyright owner is likely to sue if you file a counter-notice, it would be wise to consult a copyright attorney or a business attorney with copyright expertise to determine your best strategy.

What Happens After the DMCA Takedown Notice and Counter-Notice Process?

The end of the DMCA takedown and counter-notice process isn't necessarily the end of the legal dispute. If you were infringing on the other party's copyright, the DMCA takedown stopped your infringement. But you're still potentially liable for the infringement prior to the takedown.

Filing a counter-notice and having your content restored doesn't mean that you haven't committed copyright infringement. Courts decide copyright infringement cases—not ISPs and other internet platforms. Again, ISPs, websites, and platforms don't judge the merits of a takedown notice or counter-notice.

Also, even if the other party didn't file a lawsuit in the 14-day period after your counter-notice, they retain the right to do so in the future. The only consequence of not filing in the 14-day period is that your content will be restored. Failing to file an infringement suit in the 14-day DMCA period isn't a waiver of the right to sue for infringement.

If you're unsure of how to respond to a DMCA takedown notice that you receive, or if you are worried about potential liability for copyright infringement, it's a good idea to consult a business or copyright attorney.

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