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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