Background
Emmerich Newspapers, which publishes local newspapers in Mississippi, Arkansas, and Louisiana, sued Particle Media over the NewsBreak news-aggregation website and app. Emmerich alleged that NewsBreak infringed its public-display right by presenting Emmerich articles in a framed view. In that view, NewsBreak linked to content delivered from Emmerich’s servers and displayed the live Emmerich webpage inside NewsBreak’s interface.
Emmerich also challenged a full-text view that appeared on Android devices during a reported 2019-to-2021 glitch. Emmerich alleged that NewsBreak reproduced articles under NewsBreak URLs and removed Emmerich URLs containing article and publisher information. The district court held that framed linking was not infringement under the Ninth Circuit’s “server test” and that URLs could not qualify as copyright management information under the Digital Millennium Copyright Act. It certified those legal questions for interlocutory appeal.
The Court’s Holding
The Fifth Circuit rejected the server test as the proper standard under the Copyright Act. That test asks whether the accused party stored and served the copyrighted work, but the court held that the statutory inquiry should focus on whether the party transmitted the fixed work to the public. Applying that text-based approach, the court concluded that Particle’s manner of framed linking did not violate Emmerich’s public-display right because the linked content was transmitted from Emmerich’s servers rather than by Particle.
The court also held that URLs are not categorically excluded from qualifying as copyright management information. A URL may qualify when it clearly conveys statutorily protected information, such as information identifying a work or its copyright owner, or when it links to qualifying information. Because URLs ordinarily serve a functional, location-finding role, however, the inquiry is fact-specific and presents a high bar. The court remanded for the district court to determine whether Emmerich’s URLs possessed the required characteristics and, if so, whether Particle intentionally removed or altered them in violation of the DMCA.
The court emphasized that it was deciding only the certified legal questions and expressed no view on the ultimate resolution of Emmerich’s claims.
Key Takeaways
- The Fifth Circuit declined to adopt the Ninth Circuit’s server test and instead centered public-display liability on who transmits the copyrighted work to the public.
- Framed or embedded linking does not infringe the public-display right when the publisher’s server, rather than the linking service, transmits the content under the circumstances addressed here.
- A URL can potentially constitute copyright management information, but only if its particular structure and use clearly convey information protected by the DMCA; intentional removal or alteration also requires a fact-specific inquiry.
Why It Matters
The decision supplies the Fifth Circuit’s first framework for applying the Copyright Act’s public-display right to embedded online content. Although the court rejected the server test’s reasoning, its transmission-focused approach may often produce a similar result for services that merely direct a user’s browser to content supplied by a third-party server.
The ruling also prevents courts from dismissing DMCA claims solely because the asserted copyright management information appears in a URL. Publishers may pursue such claims when a URL clearly communicates protected information, but the court’s emphasis on notice, functionality, stability, ownership, and intent limits the ruling’s reach and leaves commonplace linking and URL practices for fact-specific adjudication.