What happens after a seller files a DMCA counter notice?

What is a DMCA counter notice?

A counter notice is the seller's formal response to a copyright takedown. When a platform removes material after a notice under the Digital Millennium Copyright Act, the person who posted it can claim the removal was a mistake. The rules are in 17 U.S.C. § 512(g), and the U.S. Copyright Office summarizes them on its Section 512 resources page.

The counter notice exists because platforms that remove content on request get a safe harbor from liability to the poster, but only if they follow the restoration procedure. That is why a platform will put a listing back even when you are confident it infringes. The platform is not judging the merits. It is following the statute.

One limit matters right away. The 512(g) process is a copyright procedure. eBay's intellectual property resources for sellers say "Counter notices can only be submitted for US-based copyright reports." If your takedown was a trademark, counterfeit or patent complaint, the seller's dispute runs through the platform's own appeal process instead. Our post on trademark versus copyright complaints explains why that choice matters before you file.

What must a valid counter notice include?

Under 17 U.S.C. § 512(g)(3), a counter notice must be a written communication to the platform's designated agent that includes substantially the following:

1. A physical or electronic signature of the seller.
2. Identification of the removed material and where it appeared before removal.
3. A statement under penalty of perjury that the seller has a good faith belief the material was removed "as a result of mistake or misidentification."
4. The seller's name, address and telephone number, plus consent to the jurisdiction of the federal district court for the seller's address (or, for an address outside the United States, any district where the platform may be found), and agreement to accept service of process from you or your agent.

The Copyright Office publishes a sample counter notice that follows these elements. When a counter notice arrives, compare it against this list. A notice missing a required element may not trigger the restoration clock at all, and you can raise that with the platform.

What happens step by step after the counter notice is filed?

Section 512(g)(2) sets the sequence:

1. The platform notifies you. It must promptly send you a copy of the counter notice and tell you it will replace the removed material or stop disabling access in 10 business days.
2. The clock runs. The platform restores the material "not less than 10, nor more than 14, business days following receipt of the counter notice."
3. The exception. The listing stays down only if the platform's designated agent first receives notice from you that you have filed an action seeking a court order to restrain the seller from the infringing activity.

The Copyright Office puts it plainly: if you believe the counter notice is wrong, "you may file a case in federal court seeking a court order to prevent the poster from continuing to infringe your work," and if you notify the platform within the window, it will not repost the work.

Platforms describe this in their own terms. eBay says that once it receives a valid counter notice, it will give a copy to the VeRO participant and reinstate the listing "after 10 business days" unless told that a court action has been filed. TikTok's intellectual property policy says it forwards the entire appeal to the original reporter, including contact information, and may reinstate content if it does not receive notice that the claimant has filed an action seeking a court order. If the counter notice concerns an eBay takedown, see our eBay VeRO guide for how that program handles reports.

What are my realistic options during the 10 to 14 business days?

The window is short, so decide on purpose rather than by default. In practice a rights owner has a few paths:

• Check the counter notice for completeness. Confirm every 512(g)(3) element is present and that it identifies the same material you reported.
• Recheck your own claim. Was the material really your copyrighted work, such as your photos, video or written copy? Could the seller have a license, or own the image themselves? A counter notice is sometimes a signal that the original notice was too broad.
• Contact the seller. The counter notice gives you their name and address. Some disputes resolve once the seller understands which images are yours and that they can replace them. eBay notes that sellers can contact the rights owner to request a retraction, which tells you a direct conversation is expected.
• Look for a different, valid claim. If the seller also uses your registered trademark in a way the platform treats as infringing, that is a separate complaint with its own rules. File it only if it is accurate, and never as a workaround for a weak copyright claim.
• Talk to independent licensed IP counsel about a court action. This is the only route in the statute that keeps the material down past the window. It is a real lawsuit with real cost, so the decision belongs with counsel who can assess the merits.
• Let it go back up. For a low value listing or a close call, letting the restoration happen and monitoring the seller can be the sensible choice.

A hypothetical: a candle brand reports a listing that uses three of its studio photos. The seller counter notices, claiming the photos came from a supplier. The brand checks its records and confirms the images came from its own shoot, with dated raw files. It sends the seller a short message identifying the three images and asking for their removal, while its counsel reviews whether a court filing is warranted. The seller swaps the photos before the window closes, and the brand retracts nothing because the listing is now clean.

Can a seller abuse the counter notice process?

They can try, but it carries risk for them. The counter notice is made under penalty of perjury, and the seller consents to federal court jurisdiction and agrees to accept service of process. 17 U.S.C. § 512(f) also makes any person who knowingly materially misrepresents that material "was removed or disabled by mistake or misidentification" liable for resulting damages, including costs and fees.

The same subsection applies to rights owners. Knowingly misrepresenting that material is infringing creates liability too. That is the strongest reason to file accurate, narrow notices in the first place. A clean original notice makes a bad faith counter notice easier to spot and harder to sustain.

This article is general information, not legal advice. Whether to sue, and whether a counter notice was made in bad faith, are questions for independent licensed IP counsel.

How do I avoid counter notices in the first place?

You cannot stop a seller from responding, but you can make your notice hard to dispute:

• Report only material you can prove you own, such as photos from your own shoots with original files.
• Identify each copied image or video specifically instead of the entire listing.
• Use the right claim type. Copied photos are copyright. A fake carrying your logo is usually trademark.
• Keep side by side evidence and dates for every report.
• Track repeat sellers, because a seller who counter notices once tends to do it again.

Sources

• 17 U.S.C. § 512, Limitations on liability relating to material online
• U.S. Copyright Office: Section 512 resources
• U.S. Copyright Office: Sample counter notice (PDF)
• eBay Seller Center: Intellectual property
• TikTok: Intellectual property policy