In Emmerich Newspapers v. Particle Media, decided on August 27, 2026, the Fifth Circuit held that a news aggregator did not directly infringe copyright by embedding articles that stayed on the publisher's own servers. EFF, which filed an amicus brief for the defendant, reported the ruling on September 16. The court declined to adopt the Ninth Circuit's 'server test'. It announced a transmission-focused standard instead, and said that both tests 'end up in a similar place: one cannot transmit content it does not have.'
This is a US copyright case, and it does not bind India. But it states a principle that Indian intermediary law is still working out: liability should follow the party that actually did the act and had the power to stop it.
The case for the other side
Emmerich's position deserves a fair hearing. Aggregators such as NewsBreak monetise the reading experience while the publisher bears the cost of producing the journalism. A framed display can look identical to a copy, and a test that turns on server location can seem formalistic. Rights-holders argue that platforms profiting from content should carry some responsibility for it.
The Fifth Circuit's answer is narrow and sensible. Pointing a browser at a copyright owner's own server means the owner transmits the work. The owner can also remove it, or refuse the request, at any time. Responsibility sits with the party that holds the content and the control. Under the reported reasoning, the court also gave short shrift to the argument that URLs count as copyright management information, saying the bar to that conclusion is high.
What the principle means for India
India's safe harbour in Section 79 of the IT Act is built on a similar idea of matching liability to knowledge and control. In Shreya Singhal v. Union of India (2015), the Supreme Court read down Section 79(3)(b). The 'actual knowledge' that strips an intermediary's protection arises only from a court order, or from a government notification that conforms strictly to the subject matters listed in Article 19(2). The Court's reason was practical: platforms cannot be asked to judge millions of takedown requests themselves.
The IT Rules have since moved in the opposite direction on process. In October 2025, MeitY notified an amendment to Rule 3(1)(d). As MediaNama reported, intermediaries must act within 36 hours of 'actual knowledge'. That knowledge comes either from a court order or from a written, reasoned intimation issued by an officer of at least Joint Secretary rank (Deputy Inspector General for police). Each intimation must state its legal basis, the nature of the unlawful act and the exact URL, and is subject to monthly review by a Secretary-level officer. The government broadcaster's account of the notification confirms the seniority requirement and the specificity requirement. The 2025 amendment is a real improvement, and regulators who wanted accountable takedowns can fairly claim credit for it.
On the Karnataka High Court's reading, the government is also on firm legal ground. In September 2025 a single judge held that Section 79(3)(b) read with Rule 3(1)(d) sufficiently permits authorities to require intermediaries to remove unlawful content. X Corp's appeal against that ruling, together with DIGIPUB's plea, remains pending.
Where the transmission logic exposes the gap
The Fifth Circuit's test works because it asks a factual question: who did the thing? Indian takedown practice, on the evidence of one recent case, is not always that legible to the person affected.
MediaNama reported on September 30 that cartoonist Satish Acharya's Instagram account had nine restricted posts between February 28, 2026 and September 28, when the whole account was withheld in India. Two notices cited 'a notice from The Government of India / Law Enforcement under Section 79(3)(b)'. Two others cited 'an automated system implemented pursuant to legal requirements'. Acharya says he received no communication from Instagram or any government agency, and found the restrictions by checking his account-status screen. Three of the restricted cartoons date from 2023, 2024 and 2025.
These are one user's screenshots, and MediaNama could not establish which authority issued which notice. The notices do not say whether an 'automated system' means the Home Ministry's Sahyog portal integration that press reports have described, so that link remains unconfirmed. But the pattern raises the question the Fifth Circuit answered cleanly for copyright: who acted, on what authority, and with what ability to be challenged?
A Rule 3(1)(d) intimation must specify the statutory provision and URL. An account-level restriction that cites only 'legal requirements' cannot show that the requirement was met. Shreya Singhal was not written for a world of unexplained automated enforcement, and the 36-hour clock gives platforms little incentive to push back. Over-removal is the rational corporate response when the cost of being wrong falls on the platform and the cost to the speaker is invisible.
A proportionate fix
None of this requires abolishing government takedown powers. Proportionate reforms are modest:
- Every user-facing restriction should carry the intimation's issuing authority, date and provision, as the 2025 amendment's specificity requirement already implies for the platform.
- Platforms should notify the affected speaker when a restriction is imposed, not leave discovery to an account-status screen.
- The monthly Secretary-level review should produce aggregate public reporting so that courts and the public can test whether orders are 'necessary, proportionate', in the amendment's own words.
- Account-wide withholding should require a distinct, specific legal basis rather than being inferred from a chain of post-level notices.
The Fifth Circuit did not invent a new liability doctrine. It insisted that liability track actual conduct and actual control. India's framework already gestures at that in Section 79 and Rule 3(1)(d), and it needs the same discipline in practice: identifiable actors, stated legal bases, and notice to the person whose speech is removed.