Digital Millennium Copyright Act (DMCA) Counter Notification

Summary

This template is a counter notification under Section 512 of the Digital Millennium Copyright Act (DMCA). The counter notification is sent by an alleged infringer to a service provider in response to a DMCA take-down notice to object to the removal of content and to request its reinstatement. This template contains practical guidance, drafting notes, and alternate and optional clauses. When a service provider receives a DMCA take-down notice, it is required "expeditiously" to remove or disable access to the allegedly infringing material to take advantage of the DMCA's safe harbors. The service provider must take reasonable steps to notify the user who uploaded the content in question that it has been removed. 17 U.S.C. § 512(c)(1)(A)(iii). If the user has a good faith belief that the removal was due to mistake or misidentification, it may send a counter notification. 17 U.S.C. § 512(g)(3). The counter notification must include the following: • A physical or electronic signature of the user • 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 • A statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification • The user's name, address, and telephone number • A statement that: o The user consents to the jurisdiction of the federal district court for the judicial district in which its address is located, or if the user's address is outside of the United States, of any judicial district in which the service provider may be found –and– o The user will accept service of process from the person who sent the take-down notice under subsection (c)(1)(C) or an agent of such person 17 U.S.C. § 512(g)(3)(A)–(D). If the counter notification complies with the statutory requirements, the service provider must promptly provide the copyright owner with a copy of it and inform the copyright owner that it will replace the content in 10 days. After 10 days, but before 14 days have elapsed, the service provider must restore the content. The copyright owner has this 10-day window to inform the service provider that it has filed an action against the user for infringement, during which time the service provider is protected from liability for the content removal. If within 10 days there is notification of a court action, the content is not restored. If there is no such notification, the service provider has an additional 4 days to reinstate the content. 17 U.S.C. § 512(g)(2)(A)–(C). Notably, the copyright owner should act within the 10-day period: "Prudent copyright owners will act within 10 days. For, although the [service provider] may wait 14 days before restoring access, it can act as early as the 10th day. If it does so, then subsequent notification of court action from the copyright owner—even if served before the 14th day—is a nullity." Nimmer on Copyright 12B.07, footnote 45. For a more detailed discussion of the DMCA's notice and take-down procedures, see DMCA Compliance and Enforcement — DMCA Notice and Take-down. For a take-down notice template, see DMCA Take-Down Notice. Be aware that some websites provide their own counter notification forms and include instructions on how to use them in their website's terms and conditions. See Website Terms of Use and DMCA Safe Harbor for User-Generated Content for more information. For an overview of copyright infringement claims and defenses, see Copyright Enforcement Resource Kit. For guidance on managing an intellectual property (IP) portfolio, see In-House Intellectual Property & Technology Resource Kit.