If you are a New Yorker facing a DMCA takedown that has disabled your online content, you want to fight back, but you may not know whether you have legal options. The good news is that you generally can fight back against DMCA takedowns and protect your intellectual property.
Understanding DMCA takedowns
DMCA refers to the Digital Millennium Copyright Act. This act outlines the process where copyright holders can request online platforms remove content they believe infringes on their rights. Once a valid takedown notice is submitted to an online or internet service provider, the host must remove or disable access to the flagged material. The problem is that sometimes, these takedown notices are from people that do not actually own the copyrighted materials, including malicious actors.
Just as someone can file a takedown notice with the online platform, if you believe your content was removed in error or due to misidentification, you have the right to file a counternotice or counterclaim. When you draft your counternotice, include your contact information, details identifying the removed content and a statement under penalty of perjury explaining why you believe the removal was unjustified.
Send your counternotice to the service provider that took down your content. The provider must then forward it to the reported copyright holder. The copyright owner has 10–14 days to file a legal claim. If they do not pursue court action, the provider is typically required to restore your content.
Maybe. While the online platforms are protected, wrongful takedown notice filers can face legal consequences under Section 512 of the DMCA. For example, under Section 512(f), if someone makes a fraudulent misrepresentation in the takedown notice, you can sue them directly for all damages that you incurred because of your lost content, including the legal fees associated with fighting back.
Additional protections for New Yorkers
While New York’s consumer protection and privacy laws do not directly govern the DMCA process or provide an alternative pathway, they can support online content creators in other ways. For example, state regulations mandate timely notifications in the event of a data breach, which could help you if unauthorized access led to any disputed content. New York’s enhanced privacy laws also offer extra layers of security for online activities.
A DMCA takedown can feel overwhelming, but remember that you do have legal options. Filing a counternotice or counterclaim is the primary way to challenge a removal and potentially restore your content, but you can also go to court to fight back.