DMCA – The counternotice

In this brief series on the DMCA notice and takedown procedures you’ve learned how to draft a (proper) notice and get it to the designated agent. Upon receipt of the notice by the designated agent, he web host will now review the materials and, if the notice is correct, ensure that the materials are removed from the website. It’s important to remember – the host is not checking to see if the copyright is infringed, it’s merely checking to see that all of the required statements are in the notice. If the notice is proper, in order to retain immunity the materials have to come down, even if they ultimately don’t infringe on anyone’s copyright. While that may seem unfair to customers who aren’t infringing on copyrights, it’s Congress’s compromise to ensure a (relatively) simple process.
The web host will forward the notice to the website owner, at which point the website owner can (and should) remove the allegedly infringing materials, since otherwise the host will have to do so. If the website owner wants to put the materials back online, the next step is to send a counter notice to the DMCA designated agent.

The elements of the counter notice are as follows:

(A) A physical or electronic signature of the subscriber.

As with the takedown notice, this is pretty much anything you intend to have serve as a signature.

(B) 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.

This element will be a repeat of the third element of the original notice, listing the links which lead to the allegedly infringing materials in their original location before they were removed.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

As with the notice, this is language which simply has to be in the counter notice, so this will typically read something like “I have a good faith belief that the material was removed …” and then the rest of the paragraph.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

This one is a bit of a mouthful, but it’s actually pretty simple. First, the counter notice must contain contact information for the person providing the counter notice. Interestingly, whereas the notice provisions don’t necessary require any particular contact information, as long as the information is “reasonably sufficient,” the counter notice provisions specifically require the “name, address, and telephone number” of the person providing the counter notice.

The second part is another repeat of the language in the statute, although it’s a little more tricky. For counter notices filed from an address in the US, you might see something like “I hereby consent to the jurisdiction of the Federal District Court for the judicial district for the above address, and I agree to accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” It’s not pretty, and it would read better if you replaced the generic language with the actual judicial district (e.g., Eastern District of Pennsylvania), but most non-lawyers won’t want to to figure out the specific district in which they reside. Also, if the wrong district is named, the host might deem the notice improper and ignore it.

While US residents are consenting to be sued in their own home jurisdiction, non-US-residents consent to any location in which the web host (rather than the person who provided the notice) can be sued. That statement might read something like “I hereby consent to the jurisdiction of Federal District Court for any judicial district in which the service provider may be found, and I agree to accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” Again, you could put the actual service provider name and judicial district in the counter notice, but many service providers will be amenable to service in multiple jurisdictions, so it’s probably best to leave the generic language in there.

It’s very important to note that merely sending the notice does not result in the return of the allegedly infringing materials to the website – we’ll discuss this in detail in the next post, but the materials must remain offline for a period of time before they can be returned (if at all).