How to Submit a DMCA Counter Notice

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Guide to Submitting a DMCA Counter Notice

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This guide describes the information that GitHub 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 GitHub processes DMCA takedown requests, please review our DMCA Takedown Policy.

If you believe your content on GitHub 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 code 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. Sometimes a takedown notice might allege infringement in a way that seems odd or indirect. Copyright laws are complicated and can lead to some unexpected results. In some cases a takedown notice might allege that your source code infringes because of what it can do after it is compiled and run. For example:

• The notice may claim that your software is used to circumvent access controls to copyrighted works.

• Sometimes distributing software can be copyright infringement, if you induce end users to use the software to infringe copyrighted works.

• A copyright complaint might also be based on non-literal copying of design elements in the software, rather than the source code itself — in other words, someone has sent a notice saying they think your design looks too similar to theirs.