Digital Millennium Copyright Act/DCMA Archives

Fifth Circuit scrolls past Ninth Circuit “Server Test” for online copyright infringement

The US Court of Appeals for the Fifth Circuit rejected the Ninth Circuit’s “server test” for determining whether embedded online content infringes a copyright owner’s public display right and concluded that URLs are not categorically excluded from qualifying as copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA). Emmerich Newspapers, Inc. v. Particle Media, Inc., Case No. 23-60550 (5th Cir. Aug. 27, 2026) (King, Higginson, Duncan, JJ.)

Emmerich Newspapers publishes local news content online. Particle Media operates NewsBreak, a news aggregation website and application that links to content from various publishers, including Emmerich. One NewsBreak feature, called Framed View, allowed users to view a live version of an Emmerich webpage within a frame appearing in the NewsBreak interface.

Emmerich sued Particle for copyright infringement, alleging that Framed View violated Emmerich’s exclusive right under 17 USC § 106(5) to publicly display its copyrighted content. Emmerich also asserted a DMCA claim, contending that its URLs constituted CMI and that Particle improperly removed or altered that information when Emmerich content appeared under NewsBreak URLs.

The district court granted summary judgment to Particle. Applying the Ninth Circuit’s server test, first articulated in Perfect 10 v. Amazon.com (2007), the district court concluded that Particle did not infringe Emmerich’s display right because Particle did not store copies of Emmerich’s content on its own servers and instead linked to content transmitted from Emmerich’s servers. The district court also concluded that URLs could not constitute CMI because they primarily function as internet addresses. The Fifth Circuit accepted an interlocutory appeal addressing whether the server test provides the proper standard for display-right infringement and whether URLs may constitute CMI.

The Fifth Circuit declined to adopt the server test. Under that test, an entity that does not store a copy of a work on its own server generally does not “display” the work even if the entity embeds or frames content stored elsewhere. The Court concluded that this approach improperly transforms the Copyright Act’s requirement that a work be “fixed” into a requirement that the alleged infringer possess a copy of the work. The statutory definition of “fixed,” the Court explained, does not impose such a possession requirement.

Instead, the Fifth Circuit focused on the statutory requirement that a public display involve transmitting the work. The Court explained that determining whether this “transmit requirement” is satisfied requires identifying where the transmission originates and whether the transmission was permitted.

Applying that framework to Framed View, the Fifth Circuit concluded that Particle did not itself transmit Emmerich’s content. The transmission originated from Emmerich’s server, while NewsBreak merely sent a request for that content. The Court also emphasized that Emmerich’s server could have rejected the request. Thus, although the Court rejected the server test’s doctrinal basis, it concluded that Particle’s use of Framed View did not violate Emmerich’s public display right.

The Fifth Circuit cautioned that its finding was limited to the circumstances before it, suggesting that the analysis might differ where a copyright owner lacks the technological ability to reject [...]

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DMCA safe harbor is deep: Plaintiffs need to get specific

The US Court of Appeals for the Eleventh Circuit affirmed summary judgment for YouTube, finding that the company was protected by Section 512(c) of the Digital Millennium Copyright Act (DMCA). In doing so, the Court joined the Second and Ninth Circuits in requiring knowledge of specific infringing material, not generalized awareness of infringement on a platform, to defeat safe-harbor protection. Athos Overseas Ltd. Corp. v. YouTube, Inc., et al., Case No. 23-13156 (11th Cir. Jan. 7, 2026) (Pryor, Jordan, Marcus, JJ.)

Athos owns copyrights in classic Mexican and Latin American films and sued YouTube for hosting unauthorized uploads of its works. YouTube invoked the DMCA Section 512(c) safe harbor, which shields service providers from liability for infringing material stored at the direction of users if certain statutory conditions are met. Athos did not dispute that YouTube expeditiously removed content identified in valid takedown notices. Instead, Athos argued that YouTube’s internal technologies provided it with actual or “red flag” knowledge of additional infringing copies beyond those specifically identified, and that YouTube’s content moderation and curation tools gave it the “right and ability to control” infringing activity.”

The Eleventh Circuit rejected both arguments. Echoing Viacom Int’l v. YouTube and UMG Recordings v. Shelter Cap. Partners, the Court explained that Section 512(c) requires knowledge of specific instances of infringement. A service provider’s duty to act arises only when it knows which particular material is infringing, because expeditious removal is possible only with such specificity. Since YouTube’s tools do not automatically identify legally infringing content, and because Athos provided no evidence that YouTube knew which specific videos were infringing, there was no triable issue on knowledge.

The Court rejected Athos’ argument that YouTube’s ability to recommend videos, remove content, or set platform policies constituted the type of control that strips safe-harbor protection. The DMCA requires “something more” than ordinary content moderation, such as substantial influence over or inducement of specific infringing activity. Because Athos failed to establish such control, the Eleventh Circuit did not reach the question of whether YouTube derived a direct financial benefit from infringement.

The Eleventh Circuit affirmed summary judgment for YouTube, concluding that it remained entitled to Section 512(c) safe-harbor protection.