Fifth Circuit Rejects 'Server Test' for Embedding Copyright Liability
In a case with broad implications for online publishers, the Fifth Circuit adopted a new test for infringement claims based on embedded content and held that URLs can sometimes qualify as protected copyright management information.
The U.S. Court of Appeals for the Fifth Circuit, in 'Emmerich v. Particle Media,' declined to follow the Ninth Circuit's influential 'server test' for copyright infringement. That test generally shields websites from liability for embedding content hosted on other servers. The court introduced a new 'Transmit Requirement,' which focuses on whether the embedded content originates from an authorized source and whether the transmission itself was authorized.
While the court acknowledged this new standard is unlikely to produce results that are meaningfully different from the server test in most cases, the creation of a new test increases legal uncertainty for any website that embeds third-party content, such as news aggregators or social media platforms. The decision creates a potential circuit split that could lead to Supreme Court review. The court also held that a URL can, under certain circumstances, constitute 'copyright management information' (CMI) protected by the DMCA and remanded the case for further factual development on that issue. Online publishers should monitor how other circuits address the embedding issue.