# The Counter-Notice You Should Not Send: When the Copy Is Actually Yours to Lose

Source: https://copyguardhq.com/blog/2026-11-10-counter-notice-not-to-send-512f-risk/

CopyGuardHQ blog · 2026-11-08


Published 2026-11-10

A photographer found her photo on a marketplace listing, filed a takedown, and watched the listing come down. Two weeks later she got a counter-notice. The seller claimed the photo was theirs, demanded the listing be restored, and the platform told her she had ten to fourteen business days before the listing came back unless she sued. She was ready to fight. Then a lawyer asked her one question: could she prove, right now, that she took the photo, and that the seller had no license? She could not, not in a form a court would accept, and the counter-notice was the moment that gap became her problem.

A counter-notice is not a reply. It is a legal statement, made under penalty of perjury, that the material was removed by mistake or misidentification, and that the person sending it consents to the jurisdiction of a federal court. The platform restores the material ten to fourteen business days after receiving a valid counter-notice, unless the original claimant files a lawsuit. That is the whole mechanism, and it is the reason a counter-notice should never be sent casually, in either direction.

## What the counter-notice actually does

When a platform receives a counter-notice, it forwards a copy to the person who filed the takedown, and it tells them the material will be restored in ten to fourteen business days unless they file a court action. The clock is the point. The counter-notice does not decide who owns the work. It forces the claimant to decide whether to sue, and it puts the material back up while they decide. A seller who files a counter-notice is betting that the claimant will not sue, and most of the time, the seller is right.

The Revision Legal guide to DMCA counter-notices puts the risk plainly: the counter-notice is a sworn statement, and a person who files one without a good faith belief that the material was removed by mistake is making a false statement under penalty of perjury. The guide also notes the practical risk that the claimant will sue, and that the suit will be in federal court, where the costs are real even for a case that is won. The counter-notice is a bet, and the stakes are a lawsuit.

## The 512(f) trap, in both directions

Section 512(f) of the DMCA makes a person liable for damages if they knowingly misrepresent that material is infringing, or knowingly misrepresent that material was removed by mistake. The Zala IP Law guide to false DMCA claims explains the symmetry: a takedown filed in bad faith can draw a 512(f) claim, and so can a counter-notice filed in bad faith. The person who files a counter-notice claiming ownership they do not have, or a license they do not hold, is exposed to the same liability as the person who filed the false takedown.

The trap is that both sides feel certain. The photographer is certain the photo is hers. The seller is certain the photo is theirs, or that they bought a license, or that the photo is a stock image anyone can use. One of them is wrong, and the counter-notice is the moment the wrong one has to prove it in court. The photographer who cannot prove ownership right now, with the raw file, the metadata, and the date, is the one who loses that bet, even if the photo really is hers.

## When not to send it, and what to do instead

Do not send a counter-notice if the ownership is unclear, if the work is a stock image with a license you cannot produce, if the material is a copy of someone else's work that you modified, or if you cannot prove the facts you are swearing to. Do not send one to buy time, to annoy the claimant, or to see what happens. The counter-notice is not a negotiation. It is a sworn statement that starts a clock toward a lawsuit.

The alternative is to gather the proof first. Find the raw file, the metadata, the date the work was created, and the license or the assignment that gives you the right. If the proof is solid, the counter-notice is safe to send, and the claimant will usually back down rather than sue. If the proof is not solid, the right move is to let the takedown stand and fix the underlying problem, whether that is a missing license, a missing assignment, or a work that was never yours to use. The counter-notice you do not send is the one that never becomes a lawsuit.

Keep reading: [how to fight back with a counter-notice](https://copyguardhq.com/blog/2026-11-07-dmca-counter-notice-fight-back/), [the counter-notice clock, day by day](https://copyguardhq.com/blog/2026-11-05-dmca-counter-notice-clock/), and [the counter-notice for creators](https://copyguardhq.com/blog/2026-11-03-dmca-counter-notice-creators/) cover the nearby cases in this series.

## Frequently asked questions

### What is a DMCA counter-notice?

It is a legal statement, made under penalty of perjury, that material was removed by mistake or misidentification, and that the person sending it consents to the jurisdiction of a federal court. The platform restores the material ten to fourteen business days after receiving a valid counter-notice, unless the original claimant files a lawsuit.

### What happens after I file a counter-notice?

The platform forwards a copy to the person who filed the takedown, and tells them the material will be restored in ten to fourteen business days unless they file a court action. The counter-notice does not decide who owns the work. It forces the claimant to decide whether to sue, and it puts the material back up while they decide.

### Can I be sued for filing a counter-notice?

Yes. Section 512(f) of the DMCA makes a person liable for damages if they knowingly misrepresent that material was removed by mistake. A counter-notice filed in bad faith, claiming ownership or a license that does not exist, carries the same liability as a takedown filed in bad faith.

### When should I not send a counter-notice?

If the ownership is unclear, if the work is a stock image with a license you cannot produce, if the material is a copy of someone else's work that you modified, or if you cannot prove the facts you are swearing to. Do not send one to buy time or to see what happens. It is a sworn statement that starts a clock toward a lawsuit.

### What should I do instead of filing a counter-notice?

Gather the proof first. Find the raw file, the metadata, the date the work was created, and the license or assignment that gives you the right. If the proof is solid, the counter-notice is safe to send. If it is not solid, let the takedown stand and fix the underlying problem, whether that is a missing license or a work that was never yours to use.