Got hit with a bogus DMCA takedown - how to fight back?

I run a YouTube channel reviewing tech products. Last week I got a DMCA takedown notice from a company claiming I used their copyrighted footage in my review of their product.

The problem: I didn't use ANY of their footage. All the video in my review was shot by me, with the product I personally purchased. The company is clearly just trying to silence negative reviews.

YouTube took down my video immediately. I've lost a week of ad revenue and my channel took a strike. What are my options here? Can I sue them for this?

This is unfortunately common - companies abusing DMCA to suppress criticism. The good news is there's a process to fight back AND potential penalties for false claims.

First step: file a DMCA counter-notice with YouTube. This is your formal statement that the takedown was wrongful. YouTube must provide you a counter-notice form.

The counter-notice must include:

• Your physical signature (electronic is fine)
• Identification of the material that was removed
• A statement under penalty of perjury that you have a good faith belief the material was removed by mistake or misidentification
• Your name, address, phone number
• Consent to jurisdiction of federal court in your district

What happens after I file the counter-notice? Does YouTube put the video back up immediately?

Not immediately. Here's the timeline under 17 USC 512(g):

1. You file counter-notice
2. YouTube forwards it to the company that filed the DMCA claim
3. Company has 10-14 business days to file a lawsuit against you in federal court
4. If they DON'T file suit within that window, YouTube must restore your content
5. If they DO file suit, the content stays down until the lawsuit is resolved

Most bogus DMCA claimants won't actually sue because they know they'd lose and face penalties. They're counting on you not knowing about counter-notices.

Had this exact situation last year with a different company. Filed counter-notice, they didn't sue, video was restored after 14 days. They never apologized or acknowledged they were wrong.

The strike on my channel stayed for 90 days though, which sucked. Couldn't upload videos longer than 15 minutes during that time.

You mentioned penalties for false claims. Can I sue them for damages? I've lost about $2,000 in ad revenue so far and the video was getting great traction before they killed it.

Yes, Section 512(f) of the DMCA specifically addresses this. Anyone who "knowingly materially misrepresents" that material is infringing is liable for damages, including:

• Actual damages (your lost ad revenue)
• Costs and attorney's fees
• Any other damages the court finds appropriate

The key word is "knowingly." You need to prove they KNEW their claim was false when they filed it, or that they had serious doubts about it but filed anyway. This is easier than it sounds if they claimed you used their footage when all your footage is original.

There's actually a good case on this: Lenz v. Universal Music Corp (the "dancing baby" case). Mother posted a 29-second video of her toddler dancing to a Prince song. Universal filed DMCA takedown. Court held that copyright holders must consider fair use BEFORE filing DMCA notices, and failing to do so could be a 512(f) violation.

In your case, even if they owned copyright in some footage (which they're claiming), they should have verified that YOU actually used that footage before filing. Filing a takedown without even checking is likely a misrepresentation.

Question for the attorneys: what if the company claims they made an "honest mistake" and thought it was their footage? Does that get them off the hook for 512(f)?

Good question. Courts have interpreted "knowingly materially misrepresents" to include both actual knowledge AND reckless disregard for the truth.

If a company files a DMCA notice without doing ANY investigation to verify their claim, that's likely reckless disregard. They can't just spray DMCA notices around and claim "oops, honest mistake" when they get caught.

In Rossi v. Motion Picture Association of America, the court held that DMCA claimants must have a subjective good faith belief that the use is not authorized. If they never even looked at the content, they can't possibly have that belief.

Update: I filed the counter-notice yesterday. YouTube says they'll wait the required period and restore the video if the company doesn't file suit.

I'm also documenting all my damages - screenshots of analytics showing the video's performance before takedown, lost revenue estimates, etc. If they don't sue me and the video gets restored, I'm considering filing a 512(f) claim against them.

Is it worth it for $2,000-3,000 in damages? Or will attorney fees eat up any recovery?

The beauty of 512(f) is that if you win, the defendant has to pay your attorney fees. So your lawyer can potentially take it on contingency or with a fee-shifting arrangement.

That said, you should send them a demand letter first. Explain that their DMCA claim was false, cite Section 512(f), itemize your damages, and give them a chance to settle. Many companies will pay to make it go away rather than face the publicity of a lawsuit.

Also consider the strategic value: if you win (or they settle), you establish that they can't just DMCA your future reviews. That might be worth more than the immediate damages.

Final update: The company didn't file suit. My video was restored this morning after the waiting period expired. The strike on my channel is still there but will fall off in 90 days.

I'm drafting a demand letter with help from an attorney. Going to ask for $5,000 ($3K actual damages, $2K for the hassle and reputational harm). If they don't settle, we'll file in federal court.

Thanks everyone for the advice. The DMCA system is frustrating but at least there are consequences for abuse.