For nearly two decades, the Ninth Circuit’s “server test” stood as the only appellate standard for judging whether embedded online content infringes copyright.
That changed when the Fifth Circuit weighed in on the matter, rejecting the server test while arriving at substantially the same practical result for websites that embed third-party content.
The case, Emmerich Newspapers, Inc. v. Particle Media, Inc., pitted a news publisher against a news aggregator over how copyrighted articles were displayed within an app interface.
Particle Media operates NewsBreak, a news aggregation website and app that, for non-partner publishers like Emmerich, displayed stories and links within an in-app “Framed View.”
When users selected an Emmerich article, the live webpage appeared within the NewsBreak interface but was retrieved directly from Emmerich’s own server, alongside NewsBreak’s ads and other elements.
Emmerich argued that Particle’s practices “hijacked Emmerich’s user engagement” and infringed its exclusive public display right under the Copyright Act.
The Fifth Circuit found the server test rests on “weak statutory footing” and instead focused on the statutory concept of transmission, asking where the transmission of copyrighted content originated and whether that transmission was authorised.
Applying what it called a “transmit requirement,” the court concluded that “one cannot transmit content it does not have,” comparing NewsBreak to a telephone switchboard operator connecting parties without itself carrying the call.
The court stated plainly that “connecting does not equate to displaying,” affirming that Particle’s Framed View did not itself transmit Emmerich’s articles because Emmerich’s server retained, controlled, and delivered the content.
The Fifth Circuit acknowledged the analytical difference from the Ninth Circuit’s approach but noted the results largely converge, writing that “both the server test and the test we announce end up in a similar place.”
The decision is significant as the first circuit-level ruling to expressly reject the server test, even though a New York district court declined to adopt it as far back as 2018 and Judge Rakoff later held it “contrary to the text and legislative history of the Copyright Act” in the Nicklen case.
The server test itself remains binding law in the Ninth Circuit, having been reaffirmed as recently as the 2023 Hunley decision, meaning publishers operating across jurisdictions face a patchwork of standards.
Practical differences between the two tests may emerge at the margins, particularly in cases involving API delivery followed by republication, unauthorised third-party hosts, or circumvention of paywalls and technical blocking measures.
The court was careful to limit its holding, noting that embedding may not always be permissible, particularly where content is not transmitted from an authorised source or where the host site imposes technical restrictions that embedders bypass.
For content publishers, the ruling reinforces the value of deploying server-side controls such as anti-framing measures, paywalls, and anti-hotlinking tools, while also preserving server logs that document those controls and any circumvention attempts.
Aggregators and embedding sites should confirm that users’ browsers retrieve content directly from the original authorised source, rather than from a cached or retransmitted copy held by the aggregator itself.
The Fifth Circuit cautioned in dicta that “if the content was not transmitted from a source authorized to display it, then secondary liability may be implicated,” a warning that aggregators should treat seriously when sourcing embedded material.
Because the appeal was interlocutory and limited to certified questions, the court remanded the case and expressed no opinion on the ultimate outcome of Emmerich’s broader claims against Particle Media.