IP Law Daily, COPYRIGHT—5th Cir.: A circuit split opens up over the server test—but not over the legality of embedding, (Aug 28, 2026)

By Matthew Hersh, J.D.

Framing another webpage does not constitute an infringing public transmission.

A different appellate court had it wrong when it held that the common process of embedding one webpage so that it is viewable within another was lawful as long as the copy never resided on the server actually accessed by the user, the U.S. Court of Appeals for the Fifth Circuit has held. But the court, in rejecting the Ninth Circuit’s longstanding so-called “server test,” nonetheless held that embedding did not infringe upon the exclusive rights of copyright holders for another reason—namely that it did not constitute the public display of the work through transmission by the embedder (Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026)).

The opinion arises out of a long-running dispute between Emmerich Newspapers, the owner of roughly two dozen newspapers in Mississippi, Arkansas, and Louisiana, and a news aggregator named NewsBreak. Emmerich sued NewsBreak in 2023 under both the Copyright Act and the Digital Millennium Copyright Act. It alleged, in short, that NewsBreak violated the Copyright Act by reproducing Emmerich’s articles and displaying them on its own webpage. It also alleged that NewsBreak violated the DMCA by using web-crawling technology to harvest Emmerich’s paywalled content.

Critical to this appeal, several of Emmerich’s allegations revolved around the particular manner in which NewsBreak displayed Emmerich content to its viewers. NewsBreak allegedly posted some Emmerich content directly on its own servers. But for other Emmerich content, NewsBreak “framed” (or as it is more commonly referred to, “embedded”) articles hosted on Emmerich’s website—making the articles directly visible to NewsBreak visitors without ever hosting them on NewsBreak servers. Emmerich alleged that the embedding constituted a violation of Emmerich’s exclusive right to display its content. Separately, Emmerich alleged that when NewsBreak displayed full-text copies of Emmerich articles hosted on NewsBreak’s own servers under NewsBreak URLs, it removed Emmerich’s URLs in violation of the DMCA’s protections for copyright management information.

The parties, after discovery, brought cross-motions for summary judgment. While the court allowed the case to move forward, it narrowed the claims substantially. As to the copyright claim, the court found (applying Ninth Circuit doctrine), NewsBreak’s framing of Emmerich’s website content to viewers of its own website did not constitute an infringing display because NewsBreak never hosted the article on its own servers. As to the DMCA claim, the court found, obscuring another website’s URL could not constitute a violation because a URL could not qualify as copyright management information. (The district court also narrowed the claims in other ways that are not relevant here.) (see The Ninth Circuit’s server test reaches the Deep South, (Aug. 1, 2025)).

Emmerich sought interlocutory rulings on both issues, leading to this opinion.

Server test. The court of appeals found that NewsBreak’s manner of embedding Emmerich articles on its website “did not run afoul of the Copyright Act.” Under that Act, a copyright owner holds the exclusive right to display the copyrighted work publicly. To “display” a work, the Act provides, means to show a “copy” of that work. To display the work “publicly,” the Act provides, means (among other things not relevant here) to “transmit or otherwise communicate” the work to the public. Embedding the work could constitute a “display” of the work, the court of appeals found, but NewsBreak did not “publicly” display it because NewsBreak did not transmit the copy to its users.

In addressing whether embedding constituted a “display” of the underlying work, the court had to address the “server test” developed by the Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). To display a work, as noted above, requires showing a “copy” of a work. But in order to constitute a “copy” of a work, as the Copyright Act defines the term, that copy must be “fixed” within some material object. In the case of embedding, the Ninth Circuit reasoned, the copy of the work at issue was “fixed” only in the server for the underlying webpage—not in the server that did the embedding. Thus, the Ninth Circuit concluded, framing or embedding another person’s webpage could never constitute an infringing “display” of the work.

But the Ninth Circuit had it wrong, the Fifth Circuit concluded. The problem revolved around yet another definition in the Copyright Act—the definition of the term “fixed.” The Ninth Circuit assumed that a copy of a work could never be fixed within a server if it was not actually permanently saved there. But “the difficulty in accepting this approach is that the statutory definition contains a lower bar for considering content to be fixed than the Ninth Circuit’s interpretation,” the Fifth Circuit pointed out. Indeed, under the Copyright Act, a work is “fixed” in a server as long as it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” And even though embedded links show live content by way of “interpreting instructions from the content host,” the court of appeals noted, “the embedder’s webpage is not necessarily so fleeting that it could not meet the definition of ‘fixed,’ meaning embodied for more than a transitory duration.” Thus, to the extent the “server test” requires the infringer to possess the copyrighted content on its own server, the court of appeals concluded, “we find that stretches the Copyright Act’s definition of a ‘fixed’ copy beyond what the plain language can support.”

That did not end the inquiry, however. In order for an embedding website to have infringed upon the exclusive display rights in the underlying work, it must also have “transmitted” a copy of the work to its public visitors. No doubt the work was transmitted to website visitors over the internet, the court of appeals noted—but by whom? The court concluded it was the underlying website, not the embedding one, that did the transmitting. Under the Copyright Act, the court noted, to “transmit” a display is “to communicate [the display] by any device or process whereby images or sounds are received beyond the place from which they are sent.” But “embedding does not itself transmit or host the displayed copy,” the court noted; it only “directs a user’s device to retrieve content from a third-party server that controls the transmission.” In the same way a telephone switchboard operator cannot connect a caller without the intended recipient picking up the phone and agreeing to be patched through, the court noted, NewsBreak “cannot connect a user to Emmerich’s content without Emmerich’s transmittal of the content.” NewsBreak therefore may have displayed a copy of the work, the court reasoned—but it did not transmit that work to its users. It could not have trod on Emmerich’s exclusive right to display as a result.

DMCA. The court of appeals offered a more nuanced ruling on whether URLs can constitute copyright management information under the DMCA. Under the DMCA, as relevant here, copyright management information, or CMI, consists of any of eight different categories of information that are “conveyed in connection with... displays of a work.” Those categories include, among others, the title and other identifying information about the work, the name of the author of the work, the name of the copyright owner of the work, and the like. Could a URL ever constitute CMI as that term was defined in the DMCA? And could removal of a URL, as NewsBreak did when it displayed full-text copies of Emmerich articles hosted on NewsBreak’s own servers, ever constitute the “removal” of that protected CMI as defined in the DMCA? The court of appeals concluded, in effect, that “it depends.”

Whether a URL could ever constitute CMI, the court of appeals found, depended closely on the facts of the case. The domain name itself, the court held, could not provide a standalone basis for treating a URL as CMI because it does not necessarily identify the copyright owner. As for the rest of the URL, the court noted, it would just depend on the specificity of the link. A key inquiry, the court emphasized, is “whether the website descriptor in the URL is akin to a filename or not.” To be sure, the court noted, website descriptors are generally just part of the larger URL that computers use to find locations on the internet and “do not necessarily match the title of the copyrighted work syntactically.” That was the case with the example Emmerich put before the court: https://www.pressregister.com/jonestown-studies-speedbumps-safety-concerns—it constituted a descriptor of the article, not the precise title. That said, “a future court could conceivably discern that the URL website descriptor as-applied meets the CMI requirements,” the court emphasized. This question would have to remain “a fact-specific inquiry for district courts to conduct in the first instance.”

Having determined that URLs may constitute CMI, the court concluded, it would leave open the analysis of “whether the alteration or removal of a URL that is CMI would violate the DMCA.” On the one hand, the court acknowledged, such a rule would cause widespread challenges because “proxies are used for URLs all the time—either to shorten them, or to share them with others.” Thus, under one possible application of the proposed rule, the court noted, “shortening a URL would be a DMCA violation, even though the URL is just meant to take a user to the location of the copyrighted work.” On the other hand, the court noted, URL shorteners might not create an issue because “the proxy never takes the reader to a different website where the work appears under a different URL,” as occurred in this case. “Future cases will need to decide where the line is with respect to such commonplace practices,” the court concluded.

The court concluded by pithily summing up its opinion with the following: “This interlocutory appeal asked two questions: (1) Is the server test the correct standard for a display infringement claim under the Copyright Act, and (2) Can a URL ever be CMI? We answer the former in the negative, and in the latter, we do not foreclose the affirmative. But we do so while seeking to strike a delicate balance and giving considerable statutory context to adjudicate that balance. Without the benefit of a completed, postjudgment appeal, with full factual development before us, our holdings are necessarily cabined by our interlocutory posture. We express no opinion on the ultimate resolution of Emmerich’s claims, and we leave open future challenges to come in this space. Nonetheless, these comprehensive answers should guide the district court in its next steps and provide a framework for courts in our circuit confronting these questions.”

The Case is No. 25-60550.

Judge: Higginson, S.

Attorneys: Wilson Holmes Carroll (Wilson Carroll, P.L.L.C.) for Emmerich Newspapers, Inc. Stephen James Carmody (Grower & Hewes, P.L.L.C.) for Particle Media, Inc.

Companies: Emmerich Newspapers, Inc.; Particle Media, Inc.

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