A New Test, the Same Result
On August 27, 2026, the Fifth Circuit Court of Appeals handed down Emmerich Newspapers, Inc. v. Particle Media, Inc. (No. 25-60550), and in doing so answered a question that has quietly hung over the entire architecture of the web: does linking to or embedding someone else's content — an article, an image, a video — make you a copyright infringer? The court's answer was no, but the reasoning it used to get there is new, and that matters more than the outcome.
Emmerich Newspapers, which publishes local news across Mississippi, Arkansas and Louisiana, sued Particle Media, operator of the NewsBreak aggregator, arguing that NewsBreak's practice of framing Emmerich's articles inside its own app amounted to an unauthorized public display. For two decades, courts answered questions like this with the "server test," set by the Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007): whoever's server actually stores and serves the copyrighted file is the one who can be liable for display, not the site that merely points to it.
The Fifth Circuit declined to adopt that test — but landed in nearly the same place through a different route. Rather than asking where the file is stored, the court asked who transmits it, holding that Particle Media's app builds an "empty frame" that only populates with Emmerich's content when a user's browser reaches out to Emmerich's own server. NewsBreak never possesses the article, so it cannot be said to transmit it. As the court put it: "Simply, one cannot transmit content it does not have."
The Case for Emmerich's Position
Before dismissing Emmerich's theory, it's worth taking it seriously. Local newspapers operate on thin, shrinking margins, and Emmerich's core complaint — that aggregators like NewsBreak repackage its reporting inside their own branded experience, capturing attention and ad revenue that would otherwise flow to the newsroom that did the actual work — describes a real and well-documented problem in the news industry. Treating the display right as running through the entity that presents content to a user, not just the one that stores the bits, isn't a frivolous reading of the Copyright Act's transmission clause; it's an attempt to make copyright law track where the economic value is actually captured, rather than where a server happens to sit. If courts fixate on server location, sophisticated aggregators could structure around liability trivially, by design.
Why the Transmit Requirement Is the Better Rule
But the Fifth Circuit was right to resist that theory, because the actual mechanism of the modern web — hyperlinks, embeds, RSS feeds, social media cards, even basic <img> tags — depends on directing a browser to content the linking site never possesses. As EFF argued in an amicus brief joined by the American Library Association, collapsing that distinction would make "the common act of embedding links a legally fraught activity, discouraging its use except by the well-resourced, the reckless, and the ignorant," and would "significantly diminish the internet's utility as a tool for the creation and dissemination of knowledge." A rule that turns ordinary linking into a case-by-case infringement inquiry doesn't just burden aggregators — it chills the basic connective tissue that makes the web a web, including for the small publishers such a rule is supposed to protect.
Crucially, the ruling doesn't leave publishers defenseless. Emmerich and papers like it retain paywalls, robots.txt directives, hotlink protection, and direct licensing negotiations — all technical and contractual tools that operate on consent rather than litigation risk. Copyright law shouldn't be the backstop for what is, at root, a business-model dispute between newsrooms and platforms over how attention is monetized; that's a fight better fought through licensing deals, antitrust scrutiny of platform dominance, or legislation specifically calibrated to news compensation, not by rewriting what "transmit" means for every website on the internet.
URLs as Copyright Management Information
The court also rejected Emmerich's fallback theory that URLs themselves function as Copyright Management Information (CMI) under the DMCA, whose removal or alteration carries statutory damages up to $25,000 per violation. The court held URLs are not categorically excluded from CMI status but set a high bar, since URLs function primarily as locational tools rather than identifying metadata. Had Emmerich won that argument, EFF warned, "unsuspecting internet users could face ruinous legal risk for doing something as simple as using a link shortener." Keeping that exposure narrow matters as much as the display-right holding itself.
A Circuit Split Heading Toward the Supreme Court
By formally rejecting the Ninth Circuit's server test rather than just distinguishing it, the Fifth Circuit created a genuine circuit split on the legal reasoning governing embedded content, even though the practical outcome in this case matched what the server test would have produced. Legal analysts tracking the decision expect other circuits to reach different conclusions under the new transmission framework, which increases the odds the Supreme Court eventually takes up the underlying question of whether embedding constitutes an infringing display. Until then, publishers, platforms, and ordinary users get a second, doctrinally distinct route to the same conclusion: linking to content you don't host is not, by itself, copyright infringement.