Fifth Circuit Declines to Adopt Ninth Circuit's 'Server Test' in Copyright Infringement Case
The Fifth Circuit Court of Appeals has rejected the Ninth Circuit's 'server test' as the standard for determining copyright infringement in cases involving online linking and embedding. This decision stems from a lawsuit filed by Emmerich Newspapers, Inc. against Particle Media, Inc., operator of the NewsBreak news aggregator app. Emmerich alleged that Particle infringed its exclusive display rights under the Copyright Act by 'framing' Emmerich's articles within the NewsBreak app. The Fifth Circuit focused on the statutory term 'transmit,' concluding that the critical question is whether the defendant actually transmitted the copyrighted content, not whether it possessed or stored a copy. The court reasoned that Particle merely directed users' browsers to request content from Emmerich's servers, while Emmerich, as the host, performed the actual transmission. The court also addressed a Digital Millennium Copyright Act (DMCA) claim, reversing a lower court's categorical ruling that URLs cannot constitute cop...
