Fifth Circuit Splits With Ninth on Copyright 'Server Test'
In a direct split with the Ninth Circuit, the Fifth Circuit has rejected the long-standing 'server test' for online copyright infringement, creating new uncertainty for platforms that embed or frame third-party content.
The U.S. Court of Appeals for the Fifth Circuit, in Emmerich Newspapers v. Particle Media, has rejected the Ninth Circuit’s influential 'server test' for determining copyright infringement by online platforms that embed or frame third-party content. The court disagreed with the test's premise that an infringer must store a copy of the work on its own server, focusing instead on who 'transmits' the content. While the court still found the defendant news aggregator did not infringe on these facts, its rejection of the underlying doctrine creates a significant circuit split. The court also revived a Digital Millennium Copyright Act (DMCA) claim by holding that URLs can, in certain circumstances, qualify as protected copyright management information (CMI).
The server test has provided a degree of certainty for search engines, social media platforms, and other online services for over 15 years. This conflicting precedent introduces significant legal risk for any service that displays third-party content it does not host directly, particularly within the Fifth Circuit's jurisdiction of Texas, Louisiana, and Mississippi. The ruling on URLs as CMI also opens a new potential avenue for liability. Observers will watch for any petition for Supreme Court review to resolve the split.