Emmerich Newspapers, Inc. v. Particle Media, Inc.: Fifth Circuit Rejects the Copyright Server Test and Adopts a “Transmit Requirement” (2026)

In Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026), the Fifth Circuit became the first federal appellate court to squarely reject the Ninth Circuit’s “server test” from Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), as the governing framework for analyzing the Copyright Act’s public display right under 17 U.S.C. § 106(5).

Emmerich, a regional newspaper publisher, sued Particle Media, operator of NewsBreak, over the mobile app’s practice of framing Emmerich articles. The district court applied the server test and granted Particle summary judgment because the content remained stored and served from Emmerich’s servers.

On interlocutory appeal, the Fifth Circuit concluded that the server test’s focus on where a work is fixed lacks sufficient grounding in the statutory text. Instead, it adopted a “transmit requirement” — courts must determine where transmission of the copyrighted work originates and whether that transmission was permitted.

An embedding webpage that merely directs a user’s browser to request content from the copyright owner’s server does not itself transmit the work. The court analogized Particle’s role to a switchboard operator: it connects the user to the source, while Emmerich’s server performs the transmission. The court grounded this analysis in the statutory text and its volitional-conduct precedent, BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436 (5th Cir. 2017). But the Fifth Circuit warned that embedding is not categorically permissible — the transmit analysis may depend on authorization and the particular facts.

The court also addressed whether URLs can constitute copyright management information (“CMI”) under 17 U.S.C. § 1202(c). It rejected a categorical rule that URLs can never be CMI, drawing on Energy Intelligence Group, Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261 (5th Cir. 2020). But it did not hold that Emmerich’s URLs were CMI. Whether a particular URL qualifies remains fact-specific, as does whether altering or removing qualifying CMI violates § 1202(b)(1).

The case was remanded to the Southern District of Mississippi.

For publishers and other copyright owners, Emmerich is significant. It rejects the Ninth Circuit’s server test as the governing textual framework in the Fifth Circuit and shifts the focus in embedding cases toward who actually transmits the copyrighted work and whether that transmission was authorized. Fair use and other DMCA provisions remain important, while the opinion leaves room for further disputes over unauthorized transmissions, access controls, secondary liability, and CMI.