On August 27, 2026, the Fifth Circuit became the first court of appeals to reject the Ninth Circuit’s “server test” for copyright’s public display right, scrapping that test in favor of a new “transmit requirement” that “likely provides similar results as the server test in many ways.” Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, 2026 WL 2530247, at *6 (5th Cir. Aug. 27, 2026). Under the Fifth Circuit’s new transmit requirement, liability under Section 106(5) turns on who transmits the work to the public and whether that transmission was permitted, not on whose server stores the copy. Id. at *6, *14. The Fifth Circuit also separately held that URLs may constitute “copyright management information” (“CMI”) under the Digital Millennium Copyright Act (“DMCA”), though few will ultimately qualify. Id. at *18–23.
Emmerich publishes more than two dozen local newspapers in Mississippi, Arkansas, and Louisiana. Particle Media operates NewsBreak, an aggregator that licenses content from partner publishers and hosts their articles on its own servers. Emmerich was not one of Particle Media’s partner publishers. In NewsBreak’s “Framed View,” a user who tapped an Emmerich headline would see the live Emmerich page loaded from Emmerich’s server through an in-app browser. In NewsBreak’s “Full-Text View,” by contrast, a user who tapped an Emmerich headline would see an Emmerich article reproduced and self-hosted on NewsBreak’s server, which Particle Media blamed on an Android glitch that ran from 2019 to 2021. Id. at *2–4.
Applying the Ninth Circuit’s “server test” as promulgated in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), the district court held that Framed View did not display within the meaning of the Copyright Act and that URLs are not CMI as a matter of law. The court then certified both rulings for interlocutory appeal under 28 U.S.C. § 1292(b). Id. at *5.
The Server Test Rests on the Wrong Word
On appeal, the Fifth Circuit held that stripped to its conceptual core, Section 106(5) of the Copyright Act—the public display right—grants a copyright holder the right “[t]o show a [worked fixed in a tangible medium of expression] by transmitting it to the public.” Id. at *7. The server test, as adopted by the Ninth Circuit in Perfect 10, hangs on one word in the first half of that definition: “fixed.” Id. at *8.
That is where the Fifth Circuit panel changed tack, noting that fixation requires only embodiment in a medium and persistence beyond a transitory duration; nothing in the definition asks who possesses the copy. Id. at *11. Yet as the panel read it, Perfect 10 transformed “fixed” into a requirement that an infringer possess its own copy on its own server, a construction that “stretches the Copyright Act’s definition of a ‘fixed’ copy beyond what the plain language can support.” Id. As a result, the Court concluded, the server test sits on “weak statutory footing.” Id. at *6.
