Fifth Circuit Rejects 'Server Test' for Embedded Content Liability
Departing from the Ninth Circuit, the Fifth Circuit created a new 'Transmit Requirement' for copyright infringement from embedded content and held that URLs can sometimes be protected 'copyright management information' under the DMCA.
The U.S. Court of Appeals for the Fifth Circuit, in 'Emmerich v. Particle Media,' rejected the Ninth Circuit's long-standing 'server test' for assessing copyright infringement from embedding online content. The court established a new 'Transmit Requirement,' holding that liability attaches only if a defendant transmits content from an unauthorized source (like its own servers) or obtains and transmits the content without authorization (e.g., by circumventing security measures). Merely providing HTML code that instructs a user's browser to fetch content from the copyright holder's server does not constitute an infringing 'display.'
This decision creates a significant, if nuanced, circuit split on a foundational issue of internet law, making Supreme Court review more likely. While the court acknowledged its test may often produce the same outcome as the server test, the different legal reasoning provides a new framework for online publishers and content aggregators. The ruling also established that URLs can, in certain circumstances, constitute 'copyright management information' (CMI) protected by the DMCA, creating a new potential claim for rights holders. Counsel for online media and tech platforms should re-evaluate their risk profile for embedding third-party content in light of this developing law.