Got a DMCA counter notice? What to do

You reported a copied listing, Etsy took it down, and now there’s an email saying the seller has filed a counter notice. This is a formal, legal step, and it starts a clock. Here’s what it means and what you can realistically do.

What a counter notice is

A counter notice is the seller’s formal dispute of a copyright takedown. Under the DMCA (17 U.S.C. § 512(g)(3)), the seller must include, among other things:

• A statement under penalty of perjury that they believe in good faith the listing was removed by mistake or misidentification.
• Their name, address and phone number.
• Consent to the jurisdiction of a US federal district court, and agreement to accept service of legal papers from you.

Etsy’s counter notice requirements mirror this. Etsy accepts counter notices for copyright takedowns only, not trademark or patent claims (Etsy Help).

The 10-business-day clock

Once Etsy confirms the counter notice is complete, it emails both parties and gives you a copy (Etsy counter notice policy). Then:

• If, within 10 business days of Etsy receiving the counter notice, you don’t tell Etsy you’ve filed a court action seeking an order against the seller, the listing may be reactivated.
• The statute gives platforms a window of 10 to 14 business days to restore material if no court action is reported (§ 512(g)(2)(C)).

Business days exclude weekends and public holidays, so put the deadline in your calendar the day the email arrives.

Your options

1. Let it go back up

This is a legitimate choice, especially if the copying was minor or ambiguous. The listing returns, and you keep your evidence in case the seller copies again.

2. Contact the seller

The counter notice includes their contact details, and Etsy notes that direct communication is an option. A clear message with your evidence sometimes resolves things, for example a photo swap or a license. Keep it factual, and don’t threaten anything you won’t follow through on.

3. File a court action

To keep the listing down, you need to file an action seeking a court order and tell Etsy within the window. In practice this means a US federal copyright lawsuit, which requires an attorney and has a key prerequisite:

• Registration. For US works, you generally can’t sue until the US Copyright Office has registered or refused your claim. An application alone isn’t enough (17 U.S.C. § 411; see the Copyright Office’s note on the Fourth Estate decision).
• Damages. Statutory damages and attorneys’ fees are generally unavailable for infringement that began before registration, unless you registered within three months of first publication (§ 412).

If you aren’t registered, it’s very hard to file in time. Talk to an attorney promptly if the copying is serious. If you want to register for future protection, start at the US Copyright Office.

4. Consider the Copyright Claims Board

The Copyright Claims Board is a voluntary small-claims tribunal run by the US Copyright Office for lower-value disputes. Ask an attorney whether it fits your situation and whether it satisfies Etsy’s requirement in your case. Don’t assume it stops reinstatement.

The timeline at a glance

A calm message to the seller

If you decide to reach out, keep it short and factual:

“Hi, I received your counter notice for listing [URL]. The main photo is my original image from [your listing URL], taken on [date]. I can share the original camera file. Would you be willing to replace the photo with your own? If so, I won’t take this further.”

It costs nothing, and it gives the seller an easy way out that doesn’t involve a court.

Was the counter notice made in bad faith?

Counter notices carry a perjury statement, and § 512(f) makes anyone who knowingly misrepresents that material was removed by mistake liable for damages. If the seller clearly used your photo and countered anyway, keep everything: your originals, their listing screenshots and the counter notice itself. Your attorney will want them.

It’s also worth an honest second look. Did they shoot a similar photo themselves? Was it a stock or supplier image you both licensed? If the counter has merit, letting it go protects your credibility for the next report.

How to be ready next time

• Keep originals with metadata for every product photo.
• Register your best-selling work if copying keeps happening. It changes your options completely.
• Report early and completely. The process is in how to report a copycat on Etsy, and the wording is in our DMCA template.
• Watch for relisting. Sellers who counter sometimes relist elsewhere. Here’s how to find copies.

CopyCatch keeps a dated record of each match it finds, including when it first saw the listing, so your evidence is ready if a dispute escalates. Try the free check or monitor 7 listings free.