If you feel clueless about how to respond to a DMCA takedown notice, don't worry, you're not alone.
If your online content is removed because of a takedown notice you think is without merit, you can fight back with a counter-notice asking that the material be put back up.
Here's how to respond to a DMCA takedown notice and file a counter-notice:
Step 1: Find a Reason for Filing a Counter-Notice.
Filing a counter-notice is a great option if:
- The material you posted isn't actually covered by copyright,
- The copyrighted material is owned by someone other than the complaining party, or
- Your use of the copyrighted work falls under fair use.
Remember, using fair use as a reason to file a counter-notice can be risky. Proving fair use often requires a complex, fact-specific analysis, and it's often tough to predict how the argument would fare in court.
Step 2: Make Sure You Aren't Actually Infringing.
If you aren't totally honest in your counter-notice (i.e., you think you may be infringing on a copyright), then you'd likely be committing perjury.
In addition, if the complaining party has a good infringement claim, sending a counter-notice may actually trigger a lawsuit. If there's a strong possibility that you're infringing, then a lawsuit wouldn't end well for you.
Remember, the DMCA creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. The other party can win damages, court costs and attorney's fees that stem from a wrongful notice.
Step 3: Draft Your Counter-Notice.
The DCMA spells out what's needed for an effective counter-notice. This includes:
- Your physical or electronic signature;
- Your name, address, and telephone number;
- Identification of the material that's been taken down and where it appeared before it was removed;
- A statement under penalty of perjury that you have a "good faith belief" the material was removed by mistake or misidentification;
- Your consent to the jurisdiction of a federal court in the district where you live, or, if you don't live in the United States, any judicial district where your service provider is located; and
- Your consent to accept service of process from whomever submitted the takedown notice, or that party's agent.
There's no specific time limit for submitting a counter-notice, but it's always better to file your counter-notice in a timely manner.
Need More Help?
If your issue with a DCMA takedown notice is pretty straightforward, you may be able to draft a counter-notice on your own. Another option is to sign up for a prepaid legal plan like those offered by LegalStreet. Such plans include attorney-drafted letters (up to two pages) and on-call access to local lawyers, starting at less than $13 a month.
For more complicated DCMA takedown issues, or if you're being sued under the DCMA, you may want to consult an experienced lawyer who focuses on intellectual property law.
(Disclosure: LegalStreet and FindLaw.com are owned by the same company.)