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'Take It Down!':
a guide to assessing & responding to DMCA § 512 Takedown Notices

Step 3. Learn the potential consequences.

After assessing the facts and legal issues, someone targeted by a takedown notice needs to understand the potential consequences.

By the time a user finds out about it, the takedown notice may have already caused the ISP to remove the targeted material — though sometimes, the ISP will give the user the chance to remove the material herself. Either way, it is now the job of the user to do something to get her material back online. If she does nothing, her content stays offline. If she is able to take advantage of the counternotice procedure, it is likely that her material will be put back online. While restoring the material in response to a counternotice is not mandatory, many ISPs will respond favorably to a counternotice or letter explaining the situation.

By submitting a counternotice, the target signals that she is willing to stand up for her rights. After 10-14 days, the ISP will likely replace the material. Unless the sender of the original takedown notice decides to file suit, this should be the end of the matter. On the other hand, if the complainant was serious, this could be the first of several new actions — including repeat actions about the same content.

A complainant might file new takedown notices with other ISPs — for instance, companies that provide Internet access to the subscriber's webhost. And of course, the complainant may still file a lawsuit, seeking an injunction or damages.

The counternotice provision of § 512 requires the user to agree that she consents to be sued in the federal court jurisdiction where is located, or if outside the U.S., for "any judicial district in which the service provider may be found". For U.S. residents, this doesn't mean much: anybody can be sued at any time, for any reason.

But for non-U.S. residents, this requirement could be significant. A non-U.S. resident, who learns of a takedown notice from her U.S. ISP, should probably consult an attorney with expertise in international law as well as intellectual property issues.

Learn more:

• Copyright infringement penalties.

Next Step: Assessing the options and taking action

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