Written by Harrison Newman

On August 27, 2026, the Fifth Circuit became the first court of appeals to reject the Ninth Circuit’s “server test” for copyright’s public display right, scrapping that test in favor of a new “transmit requirement” that “likely provides similar results as the server test in many ways.”  Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, 2026 WL 2530247, at *6 (5th Cir. Aug. 27, 2026).  Under the Fifth Circuit’s new transmit requirement, liability under Section 106(5) turns on who transmits the work to the public and whether that transmission was permitted, not on whose server stores the copy.  Id. at *6, *14.  The Fifth Circuit also separately held that URLs may constitute “copyright management information” (“CMI”) under the Digital Millennium Copyright Act (“DMCA”), though few will ultimately qualify.  Id. at *18–23.

Emmerich publishes more than two dozen local newspapers in Mississippi, Arkansas, and Louisiana.  Particle Media operates NewsBreak, an aggregator that licenses content from partner publishers and hosts their articles on its own servers.  Emmerich was not one of Particle Media’s partner publishers.  In NewsBreak’s “Framed View,” a user who tapped an Emmerich headline would see the live Emmerich page loaded from Emmerich’s server through an in-app browser.  In NewsBreak’s “Full-Text View,” by contrast, a user who tapped an Emmerich headline would see an Emmerich article reproduced and self-hosted on NewsBreak’s server, which Particle Media blamed on an Android glitch that ran from 2019 to 2021.  Id. at *2–4.

Applying the Ninth Circuit’s “server test” as promulgated in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), the district court held that Framed View did not display within the meaning of the Copyright Act and that URLs are not CMI as a matter of law. The court then certified both rulings for interlocutory appeal under 28 U.S.C. § 1292(b).  Id. at *5.

The Server Test Rests on the Wrong Word

On appeal, the Fifth Circuit held that stripped to its conceptual core, Section 106(5) of the Copyright Act—the public display right—grants a copyright holder the right “[t]o show a [worked fixed in a tangible medium of expression] by transmitting it to the public.”  Id. at *7.  The server test, as adopted by the Ninth Circuit in Perfect 10, hangs on one word in the first half of that definition: “fixed.”  Id. at *8.

That is where the Fifth Circuit panel changed tack, noting that fixation requires only embodiment in a medium and persistence beyond a transitory duration; nothing in the definition asks who possesses the copy.  Id. at *11.  Yet as the panel read it, Perfect 10 transformed “fixed” into a requirement that an infringer possess its own copy on its own server, a construction that “stretches the Copyright Act’s definition of a ‘fixed’ copy beyond what the plain language can support.”  Id.  As a result, the Court concluded, the server test sits on “weak statutory footing.”  Id. at *6.

The Two-Fold “Transmit Requirement” Test

The Fifth Circuit’s new “‘transmit requirement’ is two-fold: first, locating where the transmission originates and, second, determining whether the transmission was permitted.  Id. at *14.

Under the first step, the transmission must come from the party whose server actually sends the content, not from the site that directs a browser to ask for it.  Id. at *12.  The panel shifted the limiting principle from “display” to “publicly,” since Section 106(5) protects only the right to “display the copyrighted work publicly.”  Id. at *6 (quoting 17 U.S.C. § 106(5)) (emphasis added).  Displaying a work “publicly” means transmitting it, and to “transmit” is to communicate a display so that images are received beyond the place they are sent.  Id. at *7 (citing 17 U.S.C. § 101).  When NewsBreak frames an Emmerich article, it sends nothing.  It tells the user’s browser to ask Emmerich’s server, and Emmerich’s server decides whether to answer.  According to the Fifth Circuit, Particle Media is like a switchboard operator who cannot complete a call unless the other party picks up.  Id. at *12.  One cannot transmit content one does not have.  Id.

The panel also rejected Emmerich’s causation theory: that Particle Media “caused” the articles to be seen and so displayed them.  Id. at *13.  Carried far enough, that reading would render every hyperlink a display. But as the panel noted, “[c]onnecting does not equate to displaying.”  Id. at *13.

The second step is where the Fifth Circuit parts company with the Ninth, because the server test asks nothing about permission.  Here the panel rested on two principles: the transmission must come from an authorized source, and that source must have been able to reject the request.  Id. at *17.  This permission requirement builds on the observation that the internet runs on an opt-out model, while copyright runs on an opt-in one.  Id. at *15.  Paywalls, crawler directives, and HTML that block framing are how an owner refuses a request; the concept of implied license governs what follows when it does not.  Id. at *15–16.

Much remains unresolved.  The panel did not hold that a server’s response establishes permission, reserved the case of an owner with no technical ability to refuse, and never said who bears the burden.  Id. at *17.  Nor is clearing the transmit requirement the end of it: fair use, claims under Section 1201 of the DMCA, and secondary liability all survive.  Id. at *17–18.

URLs Can Be CMI, But the Bar Is High

The Fifth Circuit panel also rejected a categorical rule that URLs are not CMI as a matter of law, while making clear that most URLs will not meet the definition.  Id. at *20. 

Section 1202(c) of the DMCA protects information “conveyed in connection with” a work.  And because conveying is external-facing, the court required that a recipient would understand the information as identifying the work or its owner.  Id. at *19–20.  A domain name cannot carry a URL across that line on its own, since the entity named is often not the copyright owner; here, for example, The Press Register had assigned its rights to Emmerich.  Id. at *20–21.  The website descriptor is closer, as a PDF filename may be CMI.  Id. at *21.  But descriptors are constrained by URL syntax and often diverge from the title of the work.  And in this case, Emmerich registered its copyrights as group registrations covering newspapers monthly but not specific articles, which weakened the tie between any URL and any registered work.  Id. at *20.  A URL is also not a “link” to CMI under Section 1202(c)(7) simply because it is a link; to qualify, it must point to a page that itself displays CMI.  Id. at *22–23.

In assessing whether URLs are CMI, the Fifth Circuit ruled that a court must ask “whether the domain name corresponds with the copyright owner; whether the copyright is over the website as a whole or specific pages; whether the URL is sufficiently stable and not subject to change; and, above all, whether the URLs are clearly being conveyed for the purpose of communicating a copyrighted work.”  Id. at *23.  Whether altering or removing a qualifying URL violates Section 1202(b)(1) is left for another day.  Id. at *23–24.  The panel remanded for the district court to apply both holdings on a full record and expressed no opinion on the ultimate resolution of Emmerich’s claims.  Id. at *24.

The Bottom Line Has Not Changed Much

For platforms and aggregators, the bottom line has not changed: live embedding of a page served from the rights holder’s own server is not a direct infringement of the display right.  But the proof has changed.  A defendant should be ready to show how it retrieved the content, that the source server answered a public request, and that nothing was circumvented.  Caching or self-hosting, as in NewsBreak’s Full-Text View, still forfeits the defense.

For publishers, technical self-help now carries evidentiary weight.  Anti-framing headers, crawler directives, embed permissions, and paywall settings bear directly on whether a transmission was permitted.  So does registration practice: registering a periodical as a monthly collective work makes it hard to tie any URL to any registered work.

Emmerich may not be the circuit split some observers have waited for.  The Fifth and Ninth Circuits now disagree about which words in the Copyright Act do the work, with the Ninth Circuit anchored on “fixed” and the Fifth on “transmit,” but agree on the result in the ordinary case.  Id. at *13.

Now, embedding cases in the Fifth Circuit will be won on the facts: where the transmission started, whether it was permitted, and whether anything was circumvented.