Understanding Counter-Notice Response Obligations
Critical Deadline: When an alleged infringer files a DMCA counter-notice, you have only 10-14 business days to file a federal court action seeking to restrain the infringement. Miss this window, and the platform must restore the content regardless of whether it actually infringes your copyright.

The DMCA counter-notice procedure under 17 U.S.C. 512(g) creates a "put up or shut up" mechanism. It balances copyright owners' need to protect their works against users' right to have legitimate content restored. Understanding this process is critical for effective copyright enforcement.

The Counter-Notice Timeline

Day 0: Counter-Notice Filed

Alleged infringer submits counter-notice to platform under penalty of perjury, claiming content was removed by mistake or misidentification.

Days 1-3: Platform Notification

Platform "promptly" forwards counter-notice to you (the original complainant). Your clock starts when you receive this notification.

Days 4-10: Decision Window

Evaluate the counter-notice, assess litigation viability, consult counsel, and prepare federal complaint if proceeding.

Days 10-14: Filing Deadline

If not proceeding with litigation, notify platform you will not be filing suit. If proceeding, file federal complaint and notify platform.

Day 14+: Restoration or Litigation

If no lawsuit filed and platform notified, content is restored within 10-14 business days. If lawsuit filed, content stays down pending resolution.

Statutory Framework: 17 U.S.C. 512(g)
Provision Requirement Practical Impact
512(g)(2)(A) Platform must promptly notify subscriber of takedown Infringer learns of takedown and can respond
512(g)(2)(B) Platform forwards counter-notice to complainant You receive notice and counter-notice details
512(g)(2)(C) 10-14 business day window for federal court action You must file suit OR content gets restored
512(g)(3) Counter-notice requirements (signature, perjury statement, consent to jurisdiction) Counter-notice filer is identifiable and can be sued
512(f) Liability for knowing material misrepresentation Bad faith counter-notices create damages liability
Evaluating the Counter-Notice

Before deciding whether to file suit, analyze the counter-notice and underlying dispute:

Litigation Commitment: Filing a federal lawsuit just to keep content down, then dismissing, can constitute abuse of process. Courts may sanction bad-faith litigation tactics. Only file if you intend to pursue the case to judgment or reasonable settlement.
Bad Faith Counter-Notices

Section 512(f) creates liability for knowing material misrepresentation in counter-notices. Common bad faith scenarios:

Bad Faith Scenario Why It Is Actionable
Claiming ownership of clearly copied content Misrepresenting that removal was "by mistake" when filer knows they copied
False fair use claim with no transformative use Wholesale copying for same purpose is not fair use; claiming otherwise is knowing misrepresentation
Claiming license that was revoked or never existed Misrepresenting authorization status
Serial infringer filing multiple counter-notices Pattern shows knowledge of infringement despite repeated claims of mistake
Counter-notice to buy time, then reuploading elsewhere Gaming the system demonstrates bad faith intent
Perjury Implications: Counter-notices are made under penalty of perjury. While criminal prosecution for DMCA perjury is rare, the perjury statement creates significant civil exposure. A knowingly false counter-notice can support damages claims, fee-shifting, and punitive damages in appropriate cases.
Filing the Federal Court Action

If you decide to proceed with litigation to prevent content restoration:

Sample Response Letters
Sample 1: Notice of Intent to File Federal Action
[Your Name / Law Firm] [Address] [Email / Phone] [Date] VIA EMAIL AND CERTIFIED MAIL [Counter-Notice Filer Name] [Address from Counter-Notice] Re: DMCA Counter-Notice Response - Notice of Federal Court Action Dear [Counter-Notice Filer]: I represent [Copyright Owner], who filed a DMCA takedown notice with [Platform] on [Date] regarding your unauthorized reproduction of [Description of Copyrighted Work] (U.S. Copyright Registration No. [Number]). We have received the counter-notice you filed on [Date], in which you claim under penalty of perjury that the material was removed "as a result of mistake or misidentification." REJECTION OF COUNTER-NOTICE CLAIMS Your counter-notice is without merit. [Choose applicable:] [For copied content:] The content at issue is a verbatim copy of my client's original work, which was created on [Date] and registered with the U.S. Copyright Office on [Date]. You have no ownership interest in this work and no authorization to reproduce it. Your claim that removal was "by mistake" is knowingly false. [For false fair use claim:] Your assertion of fair use is unsupportable. Your use was [commercial/non-transformative/used the entire work/serves the same market as the original]. This does not qualify as fair use under 17 U.S.C. 107. NOTICE OF LITIGATION Pursuant to 17 U.S.C. 512(g)(2)(C), we hereby notify you that [Copyright Owner] will file a federal court action for copyright infringement in the [U.S. District Court for the _____ District of _____] within the statutory period. We will notify [Platform] of the filing to prevent restoration of the infringing content. Additionally, because your counter-notice contains knowing material misrepresentations made under penalty of perjury, we will assert claims under 17 U.S.C. 512(f) for damages, costs, and attorney fees arising from your false counter-notice. SETTLEMENT OPPORTUNITY Before incurring substantial litigation costs, we offer you a final opportunity to resolve this matter: 1. Withdraw your counter-notice and consent to permanent removal; 2. Provide written assurance you will not reupload or redistribute the infringing content; 3. Pay [$ Amount] representing damages for past infringement. If we receive your acceptance by [Date - within 5 days], we will forego litigation. Otherwise, we will proceed with filing the federal complaint without further notice. Your counter-notice included your consent to federal court jurisdiction and service of process. We will serve you at the address provided in your counter-notice. Sincerely, [Attorney Name] Counsel for [Copyright Owner] cc: [Platform] DMCA Agent
Sample 2: Notification to Platform of Federal Filing
[Your Name / Law Firm] [Address] [Email / Phone] [Date] VIA PLATFORM PORTAL AND EMAIL [Platform Name] - DMCA Agent [DMCA Agent Address/Email] Re: Notification of Federal Court Action Pursuant to 17 U.S.C. 512(g)(2)(C) Original Takedown Notice: [Reference Number/Date] Counter-Notice Filed By: [Counter-Notice Filer Name] Account/URL: [Infringing Account or Content URL] Dear DMCA Agent: I represent [Copyright Owner], the party who submitted the original DMCA takedown notice referenced above on [Date]. On [Date], you forwarded to us a counter-notice filed by [Counter-Notice Filer Name]. NOTICE OF FEDERAL COURT ACTION Pursuant to 17 U.S.C. 512(g)(2)(C), I hereby notify [Platform] that [Copyright Owner] has filed a federal court action seeking an order to restrain [Counter-Notice Filer] from engaging in infringing activity relating to the material that was the subject of the takedown notice. Case Information: Court: United States District Court for the [District] Case Number: [Case Number] Case Caption: [Copyright Owner] v. [Counter-Notice Filer] Filing Date: [Date] Claims: Copyright Infringement (17 U.S.C. 501); Misrepresentation (17 U.S.C. 512(f)) REQUEST TO MAINTAIN REMOVAL Based on this filing, we request that [Platform] NOT restore the content identified in the original takedown notice. Under 512(g)(2)(C), because a federal court action has been timely filed and this notification provided, the material should remain removed pending resolution of the court action. Please confirm receipt of this notification and that the content will remain disabled. Enclosed: File-stamped copy of federal complaint Sincerely, [Attorney Name] Counsel for [Copyright Owner] Enclosure: Federal Complaint (file-stamped)
Sample 3: 512(f) Demand for Bad Faith Counter-Notice
[Your Name / Law Firm] [Address] [Email / Phone] [Date] VIA CERTIFIED MAIL AND EMAIL [Counter-Notice Filer Name] [Address] Re: Demand for Damages Under 17 U.S.C. 512(f) - False Counter-Notice Dear [Counter-Notice Filer]: This firm represents [Copyright Owner] regarding the false DMCA counter-notice you filed with [Platform] on [Date]. YOUR KNOWING MISREPRESENTATION In your counter-notice, you stated under penalty of perjury that [Copyright Owner]'s copyrighted work was removed "as a result of mistake or misidentification of the material." This statement was knowingly false. The facts demonstrate your knowledge: 1. [Copyright Owner]'s work "[Title]" was created on [Date] and registered with the U.S. Copyright Office (Reg. No. [Number]) on [Date] - years before your upload on [Date]. 2. Your uploaded content is a [verbatim copy / nearly identical reproduction] of [Copyright Owner]'s work, with [no changes / only minor modifications such as cropping/watermark removal]. 3. You [have been previously notified of this infringement / have a history of uploading infringing content / removed attribution that was present on the original]. 4. [Any other evidence of knowledge - e.g., prior correspondence, pattern of conduct, admission, etc.] There was no "mistake or misidentification." You knowingly copied [Copyright Owner]'s work and filed a false counter-notice to continue profiting from that infringement. 512(f) LIABILITY Section 512(f) of the DMCA provides: "Any person who knowingly materially misrepresents under this section... that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by... the copyright owner or its licensee..." Your counter-notice constitutes a knowing material misrepresentation. [Copyright Owner] has incurred the following damages as a direct result: - Attorney fees for analyzing counter-notice and preparing this demand: $[Amount] - Fees for preparing and filing federal court action: $[Amount] - Ongoing harm from continued infringement during delay: $[Amount] - [Additional damages as applicable] DEMAND To resolve this matter, we demand: 1. Payment of $[Total Amount] within fourteen (14) days representing 512(f) damages; 2. Permanent withdrawal of your counter-notice; 3. Written agreement never to upload, distribute, or use [Copyright Owner]'s works. If we do not receive satisfactory response by [Date], we will amend our federal complaint to add 512(f) claims and seek enhanced damages, costs, and fees resulting from your perjured counter-notice. This is not a matter we take lightly. Filing false statements under penalty of perjury has consequences. Very truly yours, [Attorney Name] Counsel for [Copyright Owner]
Frequently Asked Questions
Under 17 U.S.C. 512(g)(2)(C), you have 10-14 business days from when the platform notifies you of the counter-notice to file a federal court action and notify the platform. The statute says the platform must restore content "not less than 10, nor more than 14, business days" after receiving the counter-notice, unless you file suit and notify them first. In practice, this means you should file within 10 business days to be safe, as platforms may restore at the 10-day mark.
A bad faith counter-notice is one where the filer knowingly misrepresents that the material was removed by mistake or misidentification when they know they are actually infringing. Under 512(f), this creates liability for damages, costs, and attorney fees. Common examples include: claiming fair use when there is no transformative use, claiming ownership of content clearly created by another, claiming a license that never existed or was revoked, and serial infringers filing counter-notices despite knowing they are copying protected works.
Yes. Section 512(f) applies to counter-notices just as it applies to takedown notices. If someone knowingly materially misrepresents in a counter-notice that material was removed by mistake or misidentification, they are liable for damages including costs and attorney fees incurred by the copyright owner. The key is proving "knowing" misrepresentation - an honest but incorrect belief in fair use may not be actionable, but demonstrably false claims of ownership or authorization typically are.
You can file against John Doe defendants and immediately subpoena the platform for the counter-notice filer's identity. The counter-notice must include the filer's name, address, and phone number, and they consented to jurisdiction when they filed it. Platforms must provide this information pursuant to valid subpoena. Once identified, you amend the complaint to name the actual defendant and serve them. The counter-notice's consent to jurisdiction and service of process provisions make this process smoother than typical anonymous defendant cases.
Not necessarily. Evaluate several factors: (1) strength of your copyright claim vs. their fair use or other defense - if fair use is strong, you may lose; (2) potential damages vs. litigation costs - federal copyright litigation costs $50,000-$500,000+; (3) whether you can identify and serve the infringer; (4) whether content restoration would cause ongoing harm to your business or reputation; (5) whether the infringer has assets to satisfy a judgment. Sometimes the threat of litigation leads to settlement; other times, letting content restore is the pragmatic choice.
If the platform restores content before the 10-business-day minimum, they may have violated the DMCA procedures and lost some safe harbor protection. More practically, you can still file suit for copyright infringement against the actual infringer - the DMCA process is separate from your underlying copyright claims. File suit, seek a preliminary injunction ordering the content removed, and pursue damages. The content restoration does not immunize the infringer from liability.