Emmerich Newspapers v. Particle Media — Fifth Circuit Rejects the Server Test but Shields Framed Links

Background

Emmerich Newspapers publishes more than two dozen local newspapers in Mississippi, Arkansas, and Louisiana. It sued Particle Media, operator of the NewsBreak news-aggregation website and app, over two ways NewsBreak presented Emmerich articles. In “Framed View,” NewsBreak placed Emmerich-hosted material inside its own interface by directing the user’s browser to retrieve the article from Emmerich’s server. A separate “Full-Text View,” which the parties described as the result of a technical glitch, reproduced article text under a NewsBreak address.

Emmerich argued that Framed View violated its exclusive right to display copyrighted works publicly. It also asserted that Emmerich’s web addresses were copyright management information, or CMI, protected by section 1202 of the Digital Millennium Copyright Act, and that showing articles under NewsBreak addresses unlawfully removed or altered that information. The district court applied the Ninth Circuit’s “server test,” under which a site generally does not directly infringe the display right when the challenged content remains stored on someone else’s server. It also ruled that URLs could not qualify as CMI.

The district court certified those two legal questions for an immediate appeal before final judgment. The Fifth Circuit therefore addressed the governing rules, not every factual question or the ultimate result of Emmerich’s suit.

The Court’s Holding

The Fifth Circuit declined to adopt the server test, reasoning that its focus on where a copy is stored does not fit the Copyright Act’s definitions as well as the Ninth Circuit assumed. Whether a work is “fixed” concerns embodiment for more than a transitory duration, the court explained, and does not necessarily turn on whether the alleged infringer possesses the work on its own server.

Even so, Particle’s framed links did not infringe the public-display right on the facts described. The court focused instead on transmission: embedding instructions caused the user’s browser to request the article from Emmerich’s server, and Emmerich’s server controlled whether and what content was sent. Merely pointing the browser to the copyright owner’s copy was not itself a transmission of that content by Particle. The court emphasized that this “transmit requirement” does not make all embedding lawful; different technology or evidence about who initiated and controlled a transmission could produce a different result.

On the DMCA question, the court rejected a categorical rule that URLs can never be CMI. A URL may qualify only when, in connection with the work, it clearly conveys one of the statutory identifiers—such as the work’s title, author, copyright owner, or terms of use. Because URLs usually function as internet addresses, their CMI status requires a close examination of what a particular URL communicates. The court remanded for the district court to decide whether Emmerich’s URLs met that standard and, if so, whether Particle intentionally removed or altered them in the manner section 1202 forbids.

Key Takeaways

• The Fifth Circuit rejected the server test’s storage-centered rationale, creating a materially different analytical path from the Ninth Circuit.
• A site that only directs a browser to content transmitted and controlled by the copyright owner does not itself make the public transmission on that basis alone.
• Embedding is not automatically immune from infringement; liability remains sensitive to the actual technical flow and control of the transmission.
• A URL can potentially be protected CMI, but only if it clearly communicates information listed in the DMCA rather than merely serving as a functional address.

Why It Matters

The ruling matters to publishers, news aggregators, social platforms, and any service that displays remotely hosted material inside its own interface. Although Particle prevailed on the framed-link display theory, the Fifth Circuit expressly refused to rest that result on the familiar server test. Businesses operating nationally may now face different doctrinal language—and potentially different outcomes—depending on the circuit and on how their systems actually retrieve and transmit content.

The URL holding also keeps alive a developing route for DMCA claims. Publishers cannot assume that every address is protected CMI, while aggregators cannot assume that URLs are legally irrelevant. Product teams and litigants will need evidence showing both what a URL communicates to a user and what the platform did to it.

Surfaced via Eric Goldman’s Technology & Marketing Law Blog.