Fifth Circuit Splits With Ninth on Copyright "Server Test"
A new Fifth Circuit decision rejects the Ninth Circuit's long-standing "server test" for online copyright infringement, creating a circuit split over liability for displaying embedded or framed third-party content.
The US Court of Appeals for the Fifth Circuit has created a circuit split by rejecting the Ninth Circuit’s long-standing “server test” for copyright infringement liability. In Emmerich Newspapers v. Particle Media, the court declined to follow the rule that online display requires storing a copy of the work on the defendant’s own server. Instead, the Fifth Circuit adopted a new test focused on who “transmits” the work to the user. While the court still found the defendant’s news aggregation app did not infringe by framing the plaintiff's content, the new standard creates significant legal uncertainty for any online platform that embeds or links to third-party material. The decision increases litigation risk outside of the Ninth Circuit. The court also revived the plaintiff’s claim under the Digital Millennium Copyright Act (DMCA), ruling that a URL can, as a factual matter, constitute protectable “copyright management information” (CMI). This part of the case was remanded. Counsel for online publishers and platforms should monitor for other circuits to weigh in, potentially setting up a Supreme Court petition to resolve the split.