Counternotice Basics – Responding to Youtube DMCA Takedowns
Getting a copyright takedown notice on YouTube can be scary and frustrating. Many users panic and immediately take down their videos when they receive a notice, even if they believe their video falls under fair use. However, you have options if you feel your video was wrongly targeted.
Submitting a DMCA counter notification is the process to formally contest a takedown notice. When done properly, this forces the claimant to take further legal action or otherwise restore the video. Properly submitting a counter notification requires following some specific steps.
What is a DMCA Counter Notification?
A DMCA counter notification is the process laid out in the Digital Millennium Copyright Act (DMCA) to formally contest a copyright takedown notice.
When you submit a valid counter notification, YouTube is compelled to restore your removed video within 10-14 business days unless the copyright claimant files a lawsuit against you. This forces the claimant to take further legal action if they want the video to stay down.
So in short, a counter notification asserts that your video does not infringe copyright and requires the claimant to sue you if they still believe it does. This pushes legal responsibility back onto the claimant while conditionally restoring your video.
When Should You File a Counter Notification?
You should file a DMCA counter notice when:
- You have received a copyright takedown notice from YouTube, and
- You believe your video falls under fair use or is otherwise non-infringing.
If your video clearly uses copyrighted content excessively beyond fair use, you should not abuse the counter notification process. However, if your video only uses small portions of copyrighted content for purposes like commentary, criticism, news reporting, etc., then a counter notification is appropriate.
YouTube provides excellent fair use overview resources to judge if your video qualifies. Spend time researching fair use standards around commentary, criticism, news reporting, parody, education, etc. When in doubt, consult an intellectual property lawyer.
Pros & Cons of Submitting a Counter Notification
Pros:
- Conditionally restores your video within 10-14 days
- Shifts legal responsibility back to claimant
- Free process with potential for quick resolution
Cons:
- Claimant can still sue you for damages
- Your channel may face increased scrutiny
- Repeat counter notices can lead to channel penalties
Assess the pros and cons before moving forward with a counter notification. While the process helps level the playing field, it also pokes the hornet’s nest. The claimant may follow through with legal action if you call their bluff.
How to Write an Effective DMCA Counter Notice
Crafting a polished, professional counter notice is critical for success. Follow these steps when drafting your counter notification:
1. Include All Required Elements
Counter notifications must include these required elements as per Section 512(g) of the DMCA:
- Your full legal name
- Your physical address, email, and phone number
- Identification of the material removed and its former location
- A statement under penalty of perjury that you believe material was removed by mistake
- Your consent to local federal court jurisdiction
- Your physical or electronic signature
Notices lacking required elements will be rejected automatically. YouTube provides a counter notification form with fields for each requirement.
2. Be Clear, Concise, & Professional
Write your counter notice with care and respect. Be clear, concise, factual, and take the formal legal tone seriously. Avoid aggressive language accusing the claimant of acting in bad faith, even if you believe that’s the case. YouTube is more likely to side with polite, professional counter notices that stick to facts. Focus on explaining how your content qualifies as fair use, not attacking the claimant’s motives. Quote fair use standards around commentary, criticism, parody, etc. and explain exactly how your video meets the criteria.
3. Double Check Fair Use Qualification
As explained above, carefully assess if your video reasonably falls under fair use protections. This analysis requires weighing the four fair use factors:
- Purpose & character of the use
- Nature of the copyrighted material
- Amount used relative to the full work
- Economic impact on the copyright holder
Be honest with yourself assessing these factors. If your video uses lengthy portions of songs or video just to entertain, it likely doesn’t qualify as fair use.
“But commentary, criticism, parody, and news reporting often only require small samples to strengthen their transformative nature. Carefully review case law for your particular situation.
4. Proofread Before Sending
Finally, proofread your counter notification carefully before submitting. Check for typos, grammar errors, and legal terminology mistakes. These errors undermine your credibility.
Also verify the accuracy of your contact information. Invalid addresses or phone numbers may spoil the entire notice. Triple check your submission before hitting send.
What to Expect After Sending a Counter Notice
After submitting a valid, complete counter notification, here is the typical sequence of events:
1. Video Restoration Within 10-14 Days
YouTube is required by law to restore the video within 10-14 business days after receiving a valid counter notification unless the claimant files a lawsuit.
YouTube will notify you once the video is restored. Note that YouTube specifically promises reinstatement within 10-14 business days. Weekends and holidays do not count towards the deadline.
2. Claimant Response Window
At the same time, YouTube alerts the claimant that they must file a lawsuit within 10-14 days if they still want the video kept down. This begins the formal legal dispute process between you and the claimant.
If the time window lapses without the claimant filing a lawsuit against you, the dispute ends there with your video restored.
3. Potential Lawsuit
If the claimant feels very strongly your video is infringing, they may follow through with a lawsuit against you in local federal court. Lawsuits are still relatively rare, but certainly possible.
If you do get sued, immediately consult a lawyer specializing in intellectual property. Listen and respond promptly to all documents received from the claimant or court. Ignoring a lawsuit because it seems frivolous can lead to court judgments against you.
4. Three Strike Policy
Receiving three copyright strikes from counter notification lawsuits can result in your entire YouTube channel being terminated. These strikes accumulate across your channel history, so be very careful about submitting invalid counter notices.
DMCA Counter Notification Example
Study this example counter notification for reference:
Date: August 10, 2022
Dear Sir or Madam,
I am writing in response to the copyright takedown notice issued against my YouTube video “Reviewing the No Way Home Trailer”, formerly located at https://www.youtube.com/watch?v=12345. I have read and understand YouTube’s Terms of Service and Community Guidelines. I wish to formally issue a counter notification under Section 512(g) of the Digital Millennium Copyright Act. My contact details are as follows:
Full Legal Name: John Smith
Physical Address: 123 Main St, Anytown, CA 12345
Email: jsmith@email.com
Phone: 555-123-4567
I declare, under penalty of perjury, that I have a good faith belief the material removed is not infringing. This review video uses brief portions of the No Way Home trailer under fair use, for purposes of commentary and criticism which does not materially impair the value of the original work. I hereby consent to the jurisdiction of my local United States District Court for any dispute arising from this counter notification. Sincerely,
John Smith
jsmith@email.com
This example contains all required elements, takes a professional tone, and clearly explains fair use justification. Use this as a template when drafting your own counter notice.
Frequently Asked Questions
Review these FAQs about common counter notification questions:
Should I Submit Multiple Counter Notices?
No, only submit one counter notice per video removed. Sending duplicate or near-duplicate notices may annoy YouTube moderators reviewing your case. Stick to a single formal counter notice.
What If The Claimant Ignores My Counter Notice?
If the 10-14 day response window lapses without the claimant filing suit against you, YouTube legally must restore your video by the deadline. No response is essentially agreement to drop their claim.
Can Submitting Counter Notices Get My Channel Terminated?
Yes, receiving three copyright strikes from lost counter notification lawsuits results in channel termination. Strikes accumulate across your channel history, so repeated invalid disputes can ultimately endanger your account.
Should I Consult a Lawyer Before Sending?
Consulting an intellectual property lawyer before submitting is wise if you have any doubts about your fair use qualifications. However, for more clear-cut cases of commentary/parody/criticism, simply studying the fair use doctrine should suffice. Use your best judgment on when professional legal advice is prudent.
What If I Don’t Have an Address or Phone Number?
Physical addresses and phone numbers are required elements of formal counter notices. PO boxes generally qualify as physical addresses. For phone, VOIP numbers like Google Voice also qualify. If all else fails, use a close friend or family member’s contact information.
