DMCA Takedown Notices and Counter-Notices

Finding the designated agent

To keep the safe harbor, a service provider must designate an agent to receive notices, post the agent's contact details on its service, and register the agent with the Copyright Office, which keeps a public, searchable DMCA Designated Agent Directory. Designations expire three years after registration unless renewed. Large marketplaces and social platforms also offer their own web forms, which route to the same process.

Consider fair use before you send

In Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016), the Ninth Circuit held that a copyright holder must consider fair use before sending a takedown notice; a notice sent without that consideration can support a misrepresentation claim. We apply the Lenz standard to every notice we send, whatever the forum. Reviews, commentary, comparative advertising, and genuine resale photos can raise fair-use questions.

False notices have consequences

Under § 512(f), anyone who knowingly materially misrepresents that material is infringing is liable for the damages, including costs and attorney's fees, suffered by the person targeted, the copyright owner, or the platform. The Copyright Claims Board, the Copyright Office's small-claims tribunal, can also hear DMCA misrepresentation claims, with total damages capped at $30,000.

The last element is the one that matters most. A seller in Colombia, Spain, or China who files a counter-notice agrees to be sued in a U.S. federal court where the platform can be found, and to accept service from the complaining party. Without the counter-notice, the complaining party might have struggled to establish jurisdiction or serve process abroad.

A counter-notice is right when the removal was a genuine mistake: the content is yours, it is licensed, it is a fair use, or the notice was really a trademark or competitive complaint dressed up as copyright. It is a poor choice when the content was in fact copied, because it puts a sworn statement on the record and invites suit.

Knowingly false counter-notices carry the same § 512(f) liability as false notices. If a competitor's notice was knowingly false, a counter-notice can be paired with a demand for withdrawal and, where the harm justifies it, a misrepresentation claim.

For a "United States work," no civil action for infringement can be filed until the copyright is registered or preregistered, or the Copyright Office has refused registration (17 U.S.C. § 411(a)). In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC (2019), a case that came up from the Eleventh Circuit, the Supreme Court held unanimously that registration "has been made" only when the Copyright Office registers the work, not when the application is filed. Once registered, the owner can recover for infringement that occurred before and after registration.

Timing also controls the remedies. Under 17 U.S.C. § 412, statutory damages and attorney's fees are not available for infringement of a published work that began before the effective date of registration, unless the work was registered within three months after first publication. Section 412 applies to foreign works too, even where § 411(a) does not require registration before suit.

Statutory damages under 17 U.S.C. § 504(c) range from $750 to $30,000 per work, up to $150,000 per work for willful infringement, and down to $200 for innocent infringement. For a brand whose photos are copied across dozens of listings, timely registration is often what makes enforcement worth the cost.