The Fifth Circuit Reframes The Copyright "Server Test" With A "Transmit Requirement"

In Emmerich Newspapers, Inc. v. Particle Media, Inc. (No. 25-60550, Aug. 27, 2026), the Fifth Circuit answered two certified questions out of the Southern District of Mississippi and, in doing so, changed how copyright display-right defenses should be briefed in this circuit.

When a website embeds or in-line links to someone else's article or photo, the content appears seamlessly on that site. But the file itself never leaves the original owner's server. The visitor's browser is simply following instructions to go fetch it from the source. For nearly two decades, the Ninth Circuit's answer to whether that counts as copyright infringement has been the "server test," announced in Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007): a website that does not store a copy of the work on its own server is not “displaying” it, no matter how the page looks to the user. Put simply, whoever hosts the file is on the hook, and the linker is not. Copyright owners have long argued that this elevates back-end plumbing over what the audience actually sees, and several district courts, including Goldman v. Breitbart in the Southern District of New York, have declined to follow it. Before Emmerich, no other circuit had squarely adopted or rejected it.

The Fifth Circuit declined to adopt Perfect 10's server test, finding it "on weak statutory footing." According to the panel, the server test hangs everything on "fixed," reading the statute to require the alleged infringer to possess a copy on its own server. The panel further found no textual support for a possession gloss on fixation, reasoning that § 101 of the Copyright Act requires only embodiment plus more-than-transitory duration. The limiting principle instead comes from "publicly," and specifically from "transmit." Pointing a user's browser to the owner's own copy is not communicating the work "beyond the place from which [it is] sent." And, borrowing from the panel's analogy to telephone switchboards of a previous era, simply connecting is not displaying:

To understand the technological feature that is determinative here, we provide an analogy—albeit one that is far more rudimentary than the technology at issue. Think of Particle as a switchboard operator: In the same way a switchboard operator cannot connect a caller without the intended recipient picking up the phone and agreeing to be patched through, Particle cannot connect a user to Emmerich’s content without Emmerich’s transmittal of the content. Just as the critical act in having a telephone conversation is someone picking up the other end, we find that the critical act in the linking process is the transmittal of content, which requires courts to evaluate the party responsible for “communicat[ing]” the copy.

The Fifth Circuit's new test therefore asks two questions. First, where did the transmission originate? The second question asks whether the transmission was permitted. More specifically, this factor rests on the copyright owner's technological ability to refuse the request (paywalls, crawler exclusions, embedding blocks), and the court expressly reserved whether liability attaches when an owner has no such ability.

Regarding the DMCA: the district court's categorical holding that URLs can never be copyright management information (CMI) is gone. Following the Fifth Circuit's treatment of PDF filenames in Energy Intel. Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P.,948 F.3d 261, 277 (5th Cir. 2020), the panel declined to foreclose URL-as-CMI, while setting a high notice bar and holding that a domain name doesn't provide a standalone basis for a URL to be CMI. Whether removing such a URL violates § 1202(b) was left for remand.

Practice note: For defendants, a Perfect 10 cite no longer disposes of an infringement count predicated on linking or embedding copyrighted articles or images. The same argument still wins on these facts, but it must be borne out of § 101's definitions of "display," "publicly," and “transmit.” And the permission prong invites factual development that may not resolve on the pleadings. The CMI ruling is notable for plaintiffs: a § 1202 claim premised on URLs is no longer dead-on-arrival in the Fifth Circuit. But the panel was careful to note that fair use and § 1201 anti-circumvention remain intact as independent limits, as the earlier Emmerich litigation itself showed, where full-text reproduction of content failed fair use despite passing the server test.

"Simply, one cannot transmit content it does not have. We call this 'the transmit requirement.'"