Fifth Circuit Rejects Server Test for Embedded Content
In a case of first impression, the court adopted a new "transmit requirement" for direct copyright infringement claims, deepening a circuit split over the legality of embedding online content.
The U.S. Court of Appeals for the Fifth Circuit has rejected the Ninth Circuit's long-standing "server test" for determining direct copyright infringement from embedded online content. In Emmerich Newspapers, Inc. v. Particle Media, Inc., the court established a new "transmit requirement," which asks which party's server transmitted the content to the end user and whether that transmission was authorized. This holding deepens a circuit split on a critical issue for any company operating a website that displays third-party material, from news aggregators to social media platforms. While the Fifth Circuit suggested its test may often produce similar results to the server test, the different legal reasoning creates significant uncertainty and risk for platforms operating nationwide. The court also found that URLs can, in some cases, qualify as "copyright management information" under the DMCA, creating another potential cause of action. The growing disagreement among federal circuits makes it more likely that the U.S. Supreme Court will ultimately intervene to establish a national standard for infringement liability related to embedded content.