Reported / Citable
Background
Emmerich Newspapers, which publishes local newspapers in Mississippi, Arkansas, and Louisiana, sued Particle Media over articles appearing through Particle’s NewsBreak website and app. NewsBreak used a “Framed View” that placed a live version of an Emmerich webpage inside the app while retrieving the article from Emmerich’s own server. During a reported Android glitch from 2019 to 2021, NewsBreak also displayed some articles in “Full-Text View” under NewsBreak URLs.
The district court held that Framed View did not infringe Emmerich’s exclusive public-display right under the Copyright Act, applying the Ninth Circuit’s “server test” because Particle did not store the framed content on its own server. It separately ruled that Emmerich’s URLs were not copyright management information under the Digital Millennium Copyright Act. On interlocutory appeal, the Fifth Circuit reviewed those two legal questions without deciding the ultimate merits of Emmerich’s claims.
The Court’s Holding
The Fifth Circuit rejected the server test as the governing standard, concluding that its focus on where a work is fixed rests on weak statutory footing. The proper inquiry under the Copyright Act is whether the defendant publicly displayed the work by transmitting it to the public. Under that text-based approach, Particle’s framed linking did not infringe Emmerich’s display right because Emmerich’s server—not Particle—transmitted the article content requested by the user’s browser. The court noted that its transmission-focused analysis will often produce the same result as the server test, although it rests on different statutory language.
The court also held that URLs are not categorically excluded from qualifying as copyright management information. Because URLs primarily function as internet addresses, however, a URL qualifies only if it clearly conveys information protected by the DMCA—for example, qualifying information about the work or copyright owner, or a qualifying link to such information. That determination, and whether Particle intentionally removed or altered any qualifying information in violation of the DMCA, requires a fact-specific inquiry.
The Fifth Circuit remanded for further proceedings under its framework. It expressly declined to decide whether Emmerich’s particular URLs constitute copyright management information or whether Emmerich will ultimately prevail on either claim.
Key Takeaways
- The Fifth Circuit rejected the Ninth Circuit’s server test and made transmission, rather than server-side storage, the central inquiry for public-display claims.
- Framing or embedding content is not direct display infringement when the copyright owner’s server transmits the content to the user and the linking service supplies only the instructions directing the request.
- A URL can potentially constitute copyright management information, but only when its content or linking function clearly conveys information covered by the DMCA; intentional removal remains a separate, fact-dependent requirement.
Why It Matters
The decision supplies the Fifth Circuit’s first framework for applying the Copyright Act’s public-display right to embedded online content. Although the court rejected the server test doctrinally, its transmission-based rule preserves substantial room for ordinary linking and framing that retrieves content directly from a publisher’s server.
The ruling also leaves publishers and online platforms with a narrower but viable path for DMCA claims involving URLs. Courts must examine what a particular URL communicates, how it relates to the copyrighted work, and whether any alteration or removal was intentionally directed at copyright management information.