DMCA counter notice: what it must contain, the 10 to 14 business day clock, and your options

What is a DMCA counter-notice?

It's the seller's formal reply to a copyright takedown, asking the platform to put the material back because, the seller says under penalty of perjury, it was removed by mistake or misidentification. A valid one doesn't mean the seller is right. It moves the dispute from the platform to you and, if you choose, a court.

It usually reaches you as a copy the platform forwards, with the seller's name, address and phone number in it (17 U.S.C. 512(g)(2)(B) and (g)(3)(D)). It can be a few lines long. The statute doesn't ask for much more.

The Copyright Office gives two examples of a genuine mistake or misidentification: the seller has a valid license to use the work, or the material doesn't include the work you said was copied. Both can happen to a careful brand. A reseller may have bought your supplier's photo pack, and a long afternoon of reporting can catch a listing that only looked like yours.

Don't expect the platform to referee. Etsy says it's unable to make legal determinations on infringement allegations or take sides, and suggests working it out with the other party or speaking with an attorney (Etsy Help).

What must a DMCA counter-notice contain?

Four things, in substance, under 17 U.S.C. 512(g)(3): the seller's signature; the removed material and where it appeared; a statement under penalty of perjury of a good-faith belief it was removed by mistake or misidentification; and their name, address and phone number, with consent to a US federal court's jurisdiction.

The law describes an effective counter-notice as one that includes substantially all four. If one is missing, write to the platform's IP team, name the missing element, and keep a copy. Etsy says it must process a counter-notice that contains all the information the DMCA requires and complies with its policies (Etsy Help), which cuts both ways.

Element (D) is the serious one: a seller who sends it consents to a US federal court's jurisdiction and agrees to accept your court papers.

How long do you have after a counter-notice?

A counter-notice starts a clock: unless you tell the platform you've filed a court action, the listing goes back up 10 to 14 business days after the platform received it. Before that, the platform promptly sends you a copy and says it'll restore the material in 10 business days.

Count from the day the platform received it, not the day you opened the email. Ten business days is two working weeks, which is very little time to brief a lawyer and file a case. The Copyright Office's Section 512 FAQ says that if you tell the platform in time that you've filed, it won't repost the work.

Etsy states the rule from the seller's side: unless the complaining party notifies Etsy of legal action seeking a court order, the seller may relist 10 business days after Etsy processes the counter-notice (Etsy Help). The full sequence, from notice to removal, is in how a DMCA takedown works.

What are your options when a counter-notice arrives?

You can let the listing go back up, challenge a counter-notice that's missing an element, talk to the seller, report under trademark if your registered mark is on the listing, or file a court action and tell the platform before it restores the listing.

Two caveats on the last row. The Copyright Claims Board can't order anyone to stop infringing unless they agree to, respondents can opt out, and it can't hear claims against anyone residing outside the US (17 U.S.C. 1504(d)(4)). Section 512(g) speaks of an action seeking a court order to restrain the seller, so ask a lawyer before relying on a CCB claim to keep a listing down.

What we'd do with a single listing from a seller abroad: read the counter-notice for missing elements, check whether a trademark complaint fits, and save the lawyer's time for the seller who keeps coming back. Each marketplace's trademark route is in the Takedown Routes Index.

Do you need a registered copyright to keep the listing down?

For a US work, in practice yes. Under 17 U.S.C. 411(a), you can't start an infringement suit until registration has been made, or refused, and a court action is what stops the restoration. You don't need a registration to send the original notice.

If you haven't registered when a counter-notice lands, the Copyright Office offers special handling for pending or prospective litigation (Circular 10). It costs $800 per claim on the Office's fee schedule, and the Office says it will make every effort to finish examining within five working days, without a guarantee. The suit itself still waits for that registration decision (17 U.S.C. 411(a)).

The cheaper move is to register before you need to. On the same fee schedule, a group of published photographs costs $55 to register, against $45 or $65 for one work, depending on the application. Timing also affects what you can win: under 17 U.S.C. 412, statutory damages and attorney's fees generally aren't available for infringement that began before the registration took effect, unless a published work was registered within three months of first publication.

The 411(a) rule applies to a "United States work", a term the statute defines. If your photos were first published outside the US, ask a lawyer how it applies to you.

What if a copycat takes down your own listing?

A copycat can report your listing as theirs. If the removal was a mistake or misidentification, you can send a counter-notice yourself. The Copyright Office says a takedown notice doesn't mean you're being sued, and that your options are to do nothing or to counter-notice.

The Copyright Office publishes a sample counter-notice with each element laid out. Send it to the platform's designated agent, or follow the instructions the platform sends you: Etsy puts them in the email about the alleged infringement.

Know what you're signing. It's a statement under penalty of perjury and a consent to a federal court's jurisdiction. Knowingly and materially misrepresenting that material was removed by mistake makes you liable for damages, including costs and attorneys' fees (17 U.S.C. 512(f)). If the report against you was knowingly false, the same section works in your favor, and a lawyer can tell you whether it's worth pursuing.

Meanwhile, don't relist the same content. Etsy tells sellers not to create more listings for reported content until the issue is resolved, and warns that repeat reports may cost account privileges (Etsy Help).

When should you call a lawyer?

The day a counter-notice arrives on a listing you want kept down, because a court action has to be filed, and the platform told, before it restores the listing 10 to 14 business days later. Call one before you send a counter-notice yourself, too, or if you think a notice or counter-notice was knowingly false.

• You want to file suit before the listing is restored, and need to know whether your registration is in place.
• You want the seller's identity: a 512(h) subpoena is requested from a federal court clerk.
• You suspect a knowingly false counter-notice and want to weigh a 512(f) claim, in court or at the Copyright Claims Board (1504(c)(3)).
• You're the seller, and the consent to a US court worries you.

Keeping the dates straight is the part software can do. Brand Protection Tools logs a counter-notice as its own status with the date it arrived, so the 10 to 14 business day window is in front of you, and keeps the evidence from the original filing. Whether to sue is a call for you and your lawyer. Our DMCA takedown service page shows what's included.