Guide to Submitting a DMCA Counter Notice

Introduction

This guide describes the information that WhatToy needs in order to process a counter notice to a DMCA takedown request. If you have more general questions about what the DMCA is or how WhatToy processes DMCA takedown requests, please review our DMCA Takedown Policy.

If you believe your content on WhatToy was mistakenly disabled by a DMCA takedown request, you have the right to contest the takedown by submitting a counter notice. If you do, we will wait 10-14 days and then re-enable your content unless the copyright owner initiates a legal action against you before then. Our counter-notice form, set forth below, is consistent with the form suggested by the DMCA statute, which can be found at the U.S. Copyright Office's official website: https://www.copyright.gov.

As with all legal matters, it is always best to consult with a professional about your specific questions or situation. We strongly encourage you to do so before taking any action that might impact your rights. This guide isn't legal advice and shouldn't be taken as such.

Before You Start

Tell the Truth. The DMCA requires that you swear to your counter notice under penalty of perjury. It is a federal crime to intentionally lie in a sworn declaration. (See U.S. Code, Title 18, Section 1621.) Submitting false information could also result in civil liability—that is, you could get sued for money damages.

Investigate. Submitting a DMCA counter notice can have real legal consequences. If the complaining party disagrees that their takedown notice was mistaken, they might decide to file a lawsuit against you to keep the content disabled. You should conduct a thorough investigation into the allegations made in the takedown notice and probably talk to a lawyer before submitting a counter notice.

You Must Have a Good Reason to Submit a Counter Notice. In order to file a counter notice, you must have "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." (U.S. Code, Title 17, Section 512(g).) Whether you decide to explain why you believe there was a mistake is up to you and your lawyer, but you do need to identify a mistake before you submit a counter notice. In the past, we have received counter notices citing mistakes in the takedown notice such as: the complaining party doesn't have the copyright; I have a license; the content has been released under an open-source license that permits my use; or the complaint doesn't account for the fact that my use is protected by the fair-use doctrine. Of course, there could be other defects with the takedown notice.

Copyright Laws Are Complicated. Since there are many nuances to the law and some unsettled questions, it is especially important to get professional advice if the infringement allegations do not seem straightforward.

A Counter Notice Is A Legal Statement. We require you to fill out all fields of a counter notice completely, because a counter notice is a legal statement — not just to us, but to the complaining party. As we mentioned above, if the complaining party wishes to keep the content disabled after receiving a counter notice, they will need to initiate a legal action seeking a court order to restrain you from engaging in infringing activity relating to the content on WhatToy. In other words, you might get sued (and you consent to that in the counter notice).

WhatToy Isn't The Judge. WhatToy exercises little discretion in this process other than determining whether the notices meet the minimum requirements of the DMCA. It is up to the parties (and their lawyers) to evaluate the merit of their claims, bearing in mind that notices must be made under penalty of perjury.

Additional Resources. If you need additional help, there are many self-help resources online. Lumen has an informative set of guides on copyright and DMCA safe harbor. And if you think you have a particularly challenging case, non-profit organizations such as the Electronic Frontier Foundation may also be willing to help directly or refer you to a lawyer.

Your Counter Notice Must...

1. Include the following statement: "I have read and understand WhatToy's Guide to Filing a DMCA Counter Notice." We won't refuse to process an otherwise complete counter notice if you don't include this statement; however, we will know that you haven't read these guidelines and may ask you to go back and do so.

2. Identify the content that was disabled and the location where it appeared. The disabled content should have been identified by URL in the takedown notice. You simply need to copy the URL(s) that you want to challenge.

3. Provide your contact information. Include your email address, name, telephone number, and physical address.

4. Include the following statement: "I swear, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled." You may also choose to communicate the reasons why you believe there was a mistake or misidentification. If you think of your counter notice as a "note" to the complaining party, this is a chance to explain why they should not take the next step and file a lawsuit in response. This is yet another reason to work with a lawyer when submitting a counter notice.

5. Include the following statement: "I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located (if in the United States, otherwise Santa Cruz de Tenerife (Spain) where WhatToy is located), and I will accept service of process from the person who provided the DMCA notification or an agent of such person."

6. Include your physical or electronic signature.

How to Submit Your Counter Notice

The fastest way to get a response is to enter your information and answer all the questions on our Contact page, selecting the DMCA option and mentioning in your claim that it is indeed a counter-claim. Please note, if your claim has more than 5000 characters, or you would like to add attachments, send us an email instead, which is the next option.

You can also send an email notification to [email protected]. You may include an attachment if you like, but please also include a plain-text version of your letter in the body of your message. Please also add in the subject that it is a counter claim.

Finishing Up

WhatToy’s DMCA policies have been influenced by those at GitHub.
This page was last updated: 01/07/2021 (dd/mm/yyyy).