DMCA Takedown Counter Notice Demand Letters
DMCA Takedown Notices & Follow-Up Demands
17 U.S.C. §512 – Safe Harbor & Notice-and-Takedown Procedures
DMCA Safe Harbor & Notice-and-Takedown
📋 What is DMCA §512? Section 512 of the Digital Millennium Copyright Act creates “safe harbors” that shield online service providers (OSPs) from liability for user-generated copyright infringement if they follow notice-and-takedown procedures.
The Four Safe Harbors – 17 U.S.C. §512(a)–(d)
| Subsection | Type of Activity | Examples |
|---|---|---|
| §512(a) | Transitory digital network communications | Internet backbone providers, routing |
| §512(b) | System caching | Temporary copies for faster access |
| §512(c) | Storage at user direction | YouTube, Facebook, cloud storage, web hosts |
| §512(d) | Information location tools | Search engines, links, directories |
Safe Harbor Requirements for OSPs
To qualify for §512(c) safe harbor (most common), OSP must:
- Designate DMCA agent: Register agent with U.S. Copyright Office and list on website
- No actual knowledge: Not aware of specific infringing material
- No red-flag knowledge: No facts/circumstances making infringement obvious
- No financial benefit + control: Doesn’t receive financial benefit directly attributable to infringement while having right/ability to control
- Expeditious takedown: Upon receiving proper notice, acts expeditiously to remove/disable access
- Repeat infringer policy: Terminates accounts of repeat infringers in appropriate circumstances
Notice-and-Takedown Process Flow
| Step | Action | Timeline |
|---|---|---|
| 1 | Copyright owner sends takedown notice to OSP’s designated agent | – |
| 2 | OSP removes/disables access to material | “Expeditiously” (typically 24–72 hours) |
| 3 | OSP notifies user of takedown | Upon removal |
| 4 | User can file counter-notice | Within ~10–14 business days |
| 5 | OSP forwards counter-notice to copyright owner | Upon receipt |
| 6 | Copyright owner files lawsuit OR content restored | 10–14 business days after counter-notice |
⚠️ DMCA vs. Direct Demand: DMCA notices target the platform/OSP. If you want to pursue the infringer directly for damages, send a separate copyright demand letter to the uploader (if you can identify them).
§512(f) – Misrepresentation Liability
Knowingly materially misrepresenting in a takedown notice OR counter-notice that material is infringing (or not infringing) creates liability for damages including costs and attorney’s fees.
- For copyright owners: Don’t send takedown notices for content you don’t own or that’s clearly fair use
- For users: Don’t file false counter-notices claiming you have rights you don’t have
Drafting DMCA Takedown Notices
Required Elements – §512(c)(3)(A)
Your takedown notice must include ALL of the following to be effective:
| Requirement | Details |
|---|---|
| 1. Signature | Physical or electronic signature of copyright owner or authorized agent |
| 2. Identification of work | Identify copyrighted work claimed to be infringed (title, registration no. if available, URL of original) |
| 3. Identification of infringing material | URL or other info sufficient for OSP to locate the material |
| 4. Contact information | Your name, address, phone, email |
| 5. Good-faith statement | “I have a good faith belief that use of the material is not authorized by copyright owner, its agent, or the law” |
| 6. Accuracy statement under penalty of perjury | “I declare under penalty of perjury that the information in this notification is accurate and that I am the copyright owner or authorized to act on behalf of the owner” |
🚨 Under Penalty of Perjury: This is a sworn statement. False DMCA notices can result in §512(f) liability, perjury charges, and damages for wrongful takedown.
Where to Send Notices
- Find designated agent: Check OSP’s website (usually footer or “Copyright Policy” page) or search Copyright Office DMCA agent directory
- Use specified method: Most OSPs have online forms; some require email to specific address; follow their procedures
- Major platforms:
- YouTube: youtube.com/copyright_complaint_form
- Facebook/Instagram: facebook.com/help/contact/552695218175041
- Twitter: help.twitter.com/forms/dmca
- Reddit: reddit.com/report
- Etsy: etsy.com/legal/ip
Strategic Considerations
- Mass infringement: You can list multiple URLs in one notice if all infringe the same work(s)
- Registration info: Include registration number if available (strengthens notice, signals you can sue)
- Screenshots: Attach screenshots showing infringement at time of notice (useful if content later changes)
- Parallel direct demand: Send DMCA notice to platform AND copyright demand to infringer if you know their identity
Common Mistakes to Avoid
- Omitting required elements (makes notice ineffective; OSP can ignore)
- Vague identification (“all videos on this channel” – be specific)
- Claiming rights you don’t own (leads to §512(f) liability)
- Targeting fair uses or parody (chilling speech; reputational harm; legal exposure)
- Not following OSP’s specific format requirements
DMCA Counter-Notices & Restoration
📥 Received a Takedown Notice? If you believe the takedown was wrongful (you have rights to use the content, it’s fair use, or it’s your original work), you can file a counter-notice to restore the content.
Counter-Notice Requirements – §512(g)(3)
Your counter-notice must include:
- Your signature (physical or electronic)
- Identification of removed material and where it appeared before removal
- Statement under penalty of perjury: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification”
- Your name, address, phone
- Consent to jurisdiction: “I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located (or Central District of California if my address is outside the U.S.), and I will accept service of process from the person who provided the DMCA notification or an agent of such person”
What Happens After Counter-Notice
| Timeline | Event |
|---|---|
| Day 0 | You file counter-notice with OSP |
| Day 1–3 | OSP forwards counter-notice to original complainant |
| Days 10–14 | Waiting period: complainant must file lawsuit and notify OSP OR content will be restored |
| Day 14+ | If no lawsuit filed, OSP restores content |
⚠️ Counter-Notice Risk: Filing a counter-notice gives the complainant your contact info and consents to being sued in federal court. Only file if you have a strong legal position (fair use, independent creation, license, etc.).
Grounds for Counter-Notices
- Fair use: Your use is commentary, parody, news, education, or otherwise transformative
- You own the copyright: Complainant doesn’t actually own what they claim (mistaken identity, you’re the original creator)
- Licensed use: You have permission or license to use the work
- Public domain: Work is not protected by copyright
- No substantial similarity: Your work doesn’t actually copy theirs
If Complainant Files Lawsuit
You’ll receive service of federal copyright complaint. At that point:
- Retain copyright litigation counsel immediately
- File answer or motion to dismiss within 21 days
- Assert defenses (fair use, independent creation, invalidity, etc.)
- Consider settlement if litigation costs exceed value of dispute
Sample DMCA Notices
Sample 1: DMCA Takedown Notice (YouTube Video)
To: DMCA Agent, YouTube / Google LLC
[Use YouTube’s online form or designated email]
Date: [Date]
Re: DMCA Takedown Notice – Copyright Infringement
I, [Your Full Name], hereby provide notice under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), that the following material infringes my copyright:
1. IDENTIFICATION OF COPYRIGHTED WORK:
Title: “[Your Video Title]”
Description: [Brief description of your original work]
Copyright Registration No.: [If available, e.g., PA 123-456]
Original Location: [Your YouTube channel URL or original publication location]
Date of First Publication: [Date]
2. IDENTIFICATION OF INFRINGING MATERIAL:
The following URL contains unauthorized copies of my copyrighted work:
[If multiple videos, list all URLs]
3. CONTACT INFORMATION:
Name: [Your Full Name]
Address: [Street Address, City, State, ZIP]
Phone: [Phone Number]
Email: [Email Address]
4. GOOD FAITH STATEMENT:
I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
5. ACCURACY STATEMENT:
I declare, under penalty of perjury under the laws of the United States of America, that the information in this notification is accurate and that I am the copyright owner or authorized to act on behalf of the copyright owner of an exclusive right that is allegedly infringed.
Signature: /s/ [Your Name]
Date: [Date]
[Attachments: Screenshots of infringing video, Copyright registration certificate if available]
Sample 2: DMCA Counter-Notice
To: [OSP Name] DMCA Agent
[Agent contact information from takedown notice]
Date: [Date]
Re: DMCA Counter-Notification Pursuant to 17 U.S.C. § 512(g)
I, [Your Full Name], am the user whose content was removed or disabled pursuant to a DMCA takedown notice dated [Date of Takedown].
1. IDENTIFICATION OF REMOVED MATERIAL:
The following material was removed or disabled:
[Description of content – e.g., “My video titled ‘[Title]'”]
Original URL: [URL where it appeared before removal]
Date of Removal: [Date]
2. STATEMENT UNDER PENALTY OF PERJURY:
I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material.
[Then add specific explanation, e.g.:]
Specifically, my use of [brief description] constitutes fair use under 17 U.S.C. § 107 because [explain: transformative commentary, parody, educational purpose, minimal use, etc.].
[OR: “The complainant does not own the copyright to this material. I am the original creator, as evidenced by [describe evidence].”]
[OR: “I have a valid license to use this material, granted by [licensor name] on [date].”]
3. CONSENT TO JURISDICTION:
I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located [or if my address is outside the United States, the Central District of California], and I will accept service of process from the person who provided the DMCA notification or an agent of such person.
4. CONTACT INFORMATION:
Name: [Your Full Name]
Address: [Street Address, City, State, ZIP]
Phone: [Phone Number]
Email: [Email Address]
Signature: /s/ [Your Name]
Date: [Date]
[Attachments: Evidence supporting your counter-notice – license agreement, proof of original creation, fair use analysis, etc.]
Sample 3: Follow-Up Demand to Infringer After DMCA Takedown
[Your Name]
[Address]
[Email / Phone]
[Date]
[Infringer Name/Handle]
[If known: Address or email from counter-notice]
Re: Copyright Infringement – Follow-Up to DMCA Takedown
Dear [Infringer Name]:
On [Date], I filed a DMCA takedown notice with [Platform] regarding your unauthorized use of my copyrighted work “[Title]” (Registration No. [Number]). The platform removed your content on [Date].
While the DMCA process addresses platform liability, it does not resolve your direct liability to me as the copyright owner for the infringement that already occurred.
Under 17 U.S.C. § 504, I am entitled to:
• Statutory damages of $750–$30,000 per work (up to $150,000 if willful); OR
• My actual damages plus your profits from the infringing use.
Additionally, I am entitled to injunctive relief and attorney’s fees under §§ 502 and 505.
To resolve this matter without federal litigation, I propose:
1. Payment of $[Amount] representing a retroactive license for the period your content was live ([Duration]);
2. Destruction of all copies of my work in your possession;
3. Written agreement not to use my work in the future without authorization.
If I receive your acceptance and payment within 14 days, I will consider this matter resolved. Otherwise, I will proceed with filing a federal copyright infringement lawsuit without further notice.
Please contact me at [Email] to discuss settlement.
Sincerely,
/s/ [Your Name]
Follow-Up Actions & Enforcement
When OSP Ignores Your Takedown Notice
If OSP doesn’t respond or remove content after proper notice:
- Verify compliance: Did you include all §512(c)(3) required elements? Did you send to designated agent using specified method?
- Re-send with clarification: If initial notice was defective, send corrected notice
- Escalate: Some platforms have appeals processes or IP teams for complex cases
- Consider suing OSP: If OSP repeatedly ignores valid notices or has red-flag knowledge, they may lose safe harbor protection and be liable for contributory infringement
Repeat Infringers
§512(i) requires OSPs to have and implement policies for terminating repeat infringers. If the same user repeatedly infringes:
- Document all takedown notices you’ve filed against this user
- Demand that OSP terminate user’s account pursuant to repeat infringer policy
- If OSP fails to terminate known repeat infringers, they may lose safe harbor entirely
Counter-Notice Filed – Your Options
If infringer files counter-notice, you have ~10–14 business days to act:
| Option | When to Use |
|---|---|
| File federal lawsuit | Strong infringement case; damages justify litigation costs; infringer has resources |
| Let content restore | Weak case, fair use defense is strong, or litigation not worth costs |
| Negotiate settlement | Middle ground – contact infringer directly and offer license or payment to avoid both lawsuit and restoration |
⚠️ Litigation Commitment: Filing suit just to keep content down (then dismissing) can lead to abuse-of-process claims and fee-shifting. Only file if you intend to pursue the case.
Direct Enforcement Against Infringer
DMCA takedown removes content but doesn’t compensate you. For damages:
- Send direct copyright demand letter to infringer (separate from DMCA notice)
- Negotiate retroactive license for the period content was live
- File federal lawsuit if settlement fails
- Subpoena OSP for infringer’s identity/contact info if they’re anonymous
Abuse of DMCA Process
Both sides can abuse the system:
- False takedown notices: Competitors filing baseless notices to suppress lawful content (§512(f) liability, potential tortious interference, defamation claims)
- False counter-notices: Infringers lying under oath about ownership or fair use (§512(f) liability, perjury)
If you’re a victim of DMCA abuse, document everything and consult counsel about §512(f) claims for damages, costs, and fees.
Attorney Services for DMCA & Copyright Enforcement
Need DMCA or Copyright Help?
I assist copyright owners with DMCA takedowns, follow-up enforcement, and federal litigation. I also defend against wrongful takedown notices and advise on fair use and counter-notice strategy.
For Copyright Owners
- Draft and file DMCA takedown notices across multiple platforms
- Monitor and pursue repeat infringers
- Send follow-up demand letters to infringers for damages
- File federal lawsuits when infringers file counter-notices
- Pursue OSPs that ignore valid takedown notices or harbor repeat infringers
- Handle mass infringement campaigns (automated monitoring + takedowns)
For Users Facing Takedowns
- Evaluate strength of fair use and other defenses
- Draft DMCA counter-notices to restore content
- Defend against federal copyright lawsuits after counter-notice
- Pursue §512(f) claims against parties filing false takedown notices
- Negotiate with copyright owners to license content or settle disputes
Why Legal Guidance Matters
High-Stakes Sworn Statements: Both DMCA takedown notices and counter-notices are made under penalty of perjury. Mistakes or false statements create §512(f) liability, perjury exposure, and potential six-figure damages. Attorney review ensures compliance and protects against legal exposure.
Common DMCA Scenarios I Handle
- YouTube video takedowns and Content ID disputes
- Social media post and story infringement (Instagram, TikTok, Facebook)
- E-commerce product photo theft (Amazon, Etsy, eBay)
- Website content scraping and republication
- Software and GitHub repository takedowns
- Responding to takedown notices for fair use content (commentary, parody, review)
Schedule a Call
Book a call to discuss your DMCA or copyright enforcement matter. I’ll review the infringement or takedown notice, assess your legal options, and guide you through the most effective strategy.
Contact Information
Email: owner@terms.law
Frequently Asked Questions
A DMCA takedown notice is sent to the platform/OSP under §512 to remove infringing content and protect the platform from liability. It’s a relatively quick, low-cost way to get content removed. A copyright demand letter is sent directly to the infringer demanding payment, licensing fees, or other remedies for infringement that already occurred. You can (and often should) do both: DMCA notice to platform to stop ongoing infringement, and direct demand to infringer for damages.
Yes. DMCA notices don’t require registration. However, if the infringer files a counter-notice and you need to file a federal lawsuit to keep content down, you’ll need registration (or refusal) for U.S. works. Best practice: file for registration when you discover infringement, then send DMCA notice. Expedited registration takes ~1 week.
This usually means the infringer filed a valid counter-notice. You then have 10–14 business days from when the platform notifies you to file a federal lawsuit and notify the platform, or the platform must restore the content. Evaluate whether litigation is worth it based on strength of your claim, potential damages, and infringer’s resources. You can also contact the infringer directly to negotiate settlement in exchange for withdrawing the counter-notice.
Yes, under §512(f) if you knowingly materially misrepresent that content is infringing. This creates liability for damages, costs, and attorney’s fees. Courts interpret “knowingly” and “materially” narrowly – honest mistakes generally aren’t actionable, but bad-faith takedowns (e.g., competitor trying to silence lawful speech) can result in substantial damages. Only send takedown notices for content you genuinely believe infringes your copyright, and avoid targeting obvious fair uses like commentary or parody.