Fifth Circuit Says Websites Don’t ‘Transmit’ Content They Direct Users to Fetch, Narrowing Direct‑display Liability

A federal appeals court has ruled that websites do not directly “display” copyrighted material when they merely direct a user’s browser to fetch that material from the copyright owner’s own server, adopting a new Fifth Circuit standard it called “the transmit requirement.”

The decision is a significant one for publishers, aggregators and ordinary web linking because it protects many common embedding and linking practices from being treated as direct copyright infringement. But the court did not declare that all embedding is lawful in every circumstance, and it sent the case back to a lower court to sort out unresolved facts.

The ruling came Aug. 27 from the U.S. Court of Appeals for the Fifth Circuit in Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550. The case pits Emmerich Newspapers, a regional news publisher, against Particle Media, which operates the NewsBreak news app and website. The panel consisted of Judges Carolyn Dineen King, Stephen A. Higginson and Stuart Kyle Duncan, with Higginson writing the opinion.

The core legal question was whether a site that embeds or links to a publisher’s content can be directly liable for violating the copyright owner’s display right when the publisher’s own server is the one actually supplying the content to the user. For years, courts often looked to the Ninth Circuit’s 2007 Perfect 10 v. Amazon decision, commonly known as the “server test,” when analyzing that issue.

The Fifth Circuit declined to adopt that server test as the statutory basis for deciding the claim. Instead, it focused on the Copyright Act’s definition of “transmit” in 17 U.S.C. Section 101. In the court’s words, “Although we take different routes to get there, both the server test and the test we announce end up in a similar place: a website cannot transmit a work that it does not have.”

The panel then stated the rule this way: “Therefore, we conclude that pointing or directing a user’s browser to request and receive the copyright owner’s own copy does not involve transmitting, or communicating, the content ... We call this ‘the transmit requirement.’” In practical terms, that means a website in the Fifth Circuit generally cannot be directly liable for displaying a copyrighted work it does not itself possess and transmit.

The opinion also addressed a separate claim under the Digital Millennium Copyright Act involving copyright management information, or CMI, which can include identifying information tied to a work. The court said URLs are not automatically excluded from qualifying as CMI. But because URLs primarily function as locational tools, the threshold is high: A URL would need to clearly convey one of the statutory categories of copyright management information. Under the DMCA, civil statutory damages for CMI violations can reach up to $25,000 per violation, though the court was not awarding such damages here.

The Fifth Circuit did not end the dispute between Emmerich and Particle. It answered legal questions and remanded the case to the district court for further proceedings, saying it expressed no view on the ultimate outcome of the remaining factual issues. Among those unresolved issues are different ways NewsBreak displayed content, including a “Framed View” that pulled material from the publisher’s server and a separate “Full-Text View” tied to a glitch, mainly on Android from 2019 to 2021, in which articles appeared under NewsBreak’s URL.