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Background
On August 27, 2026, the Fifth Circuit issued a landmark decision in Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, becoming the first federal appellate court to formally reject the Ninth Circuit’s widely adopted “server test.” While the case involved a news aggregator app, the ruling carries broad implications for the entertainment and media industry, affecting how content is embedded, shared, and displayed across digital platforms.
The case arose when Emmerich Newspapers sued Particle Media, the operator of the NewsBreak app, alleging copyright infringement through “framed” in-line links that displayed articles within the NewsBreak interface, even though the content remained on Emmerich’s servers. The district court applied the server test to find no infringement, and the Fifth Circuit affirmed the result but rejected the test’s statutory foundation.
The server test: A nearly two-decade-old framework
Since the Ninth Circuit’s 2007 decision in Perfect 10, Inc. v. Amazon.com, Inc., the “server test” has been the dominant framework for assessing display right claims involving embedded content. Under this test, a website that does not store content on its own server is not “displaying” that content, even if it frames or embeds it. This test has provided significant protection for platforms embedding social media posts, images, video clips, and news articles without hosting them directly.
The Fifth Circuit’s new “transmit requirement” standard
While reaching a similar result favorable to the embedding platform, the Fifth Circuit rejected the server test’s statutory foundation. The court held that the Copyright Act’s definition of “fixed” does not require permanent server possession. Instead, courts should focus on the statutory term “transmit” and, specifically, whether the defendant actually transmitted the copyrighted content to the public.
Under the new “transmit requirement,” courts must determine: (1) where the transmission originates, and (2) whether the transmission was permitted by the copyright owner. The court analogized embedding websites to telephone switchboard operators; they cannot connect users to content without the copyright owner’s transmittal. Simply put: “one cannot transmit content it does not have.”
Implications for entertainment and media companies
The court recognized that the “practical effects of this ruling may be consequential in a number of ways.”
Social media platforms and content sharing: The ruling directly affects how platforms enable embedding of third-party content. The court cited Hunley v. Instagram, in which the Ninth Circuit applied the server test to Instagram’s embedding feature. Under the Fifth Circuit’s framework, platforms that enable embedding may still be protected, but the analysis now focuses on whether the content owner permitted the transmission, not merely where the content is stored.
Streaming services: The court discussed the Supreme Court’s Aereo decision involving streaming broadcast television but noted that Aereo addressed the public performance right, not the display right at issue here. This suggests that the transmit requirement may apply differently depending on the exclusive right at issue and the level involvement in the transmission, important distinctions for streaming platforms to monitor. The court emphasized that “Aereo was intricately involved in the transmission process”.
User-generated content platforms: The court’s discussion of Flava Works v. Gunter provides guidance for platforms hosting user-generated content. In that case, a social bookmarking site was not liable for embedding videos because it only provided links, which the court characterized as analogous to “a telephone exchange connecting two telephones.” This reasoning supports platforms that connect users to content rather than hosting or transmitting it themselves.
News organizations: Publishers face dual considerations. As content creators, they can argue the server test’s statutory basis is flawed, though the transmit requirement may produce similar results in many cases. As content aggregators embedding tweets or social media posts, news outlets should note the court’s distinction between search engines where users click to see content and websites where content “await[s] the user, whether he or she asked for it, looked for it, clicked on it, or not.”
Content owners and studios: The transmit requirement places greater emphasis on technical self-help measures. The court noted that copyright owners can control embedding through paywalls, meta tags that block web crawlers, or HTML code that prevents framing. Content owners who leave material publicly accessible without such protections may be seen as implicitly permitting transmission. The court, however, noted that “there is a lurking question of how this approach would need to transform if a copyright owner had no technological capability to reject the transmission request.”
Ongoing legal considerations
Circuit split and Supreme Court review: The Fifth Circuit’s explicit rejection of the server test creates a direct conflict with Ninth Circuit precedent. This split may invite Supreme Court review to resolve the proper standard, creating uncertainty for entertainment companies operating across jurisdictions in the interim.
Secondary liability: Even where direct infringement is not found, secondary liability theories remain available. The court cited MGM v. Grokster, noting that parties can be held liable for “intentionally inducing or encouraging direct infringement” or “profiting from direct infringement while declining to exercise a right to stop or limit it.” Fair use remains a potential defense, while DMCA anti-circumvention claims remain a viable pathway for content owners.
Conclusion
While Emmerich Newspapers ultimately reached a result favorable to the embedding platform, its rejection of the server test signals a significant doctrinal shift. Entertainment and media companies, whether operating streaming services, social media platforms, news aggregation services, or content studios, should monitor this developing area closely. For content owners, the decision underscores the importance of implementing technical measures to control how content is accessed and displayed across the internet.
Client Alert 2026-175
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