Fifth Circuit Adopts a “Transmit Requirement” for Public Display Claims and Holds URLs May Qualify as DMCA CMI Only When They Clearly Convey Statutory Identifiers

Introduction

In Emmerich Newspapers, Incorporated v. Particle Media, Incorporated (5th Cir. Aug. 27, 2026), local-news publisher Emmerich Newspapers, Inc. sued Particle Media, Inc., operator of the NewsBreak news-aggregator app and website, alleging (i) copyright infringement of Emmerich’s exclusive public display right under the Copyright Act based on NewsBreak’s “framed” in-line linking, and (ii) violations of the DMCA’s copyright management information (CMI) provisions based on alleged removal/replacement of Emmerich URLs during a period when NewsBreak allegedly “glitched” into full-text reproduction.

The district court rejected Emmerich’s framed-view display claim by applying the Ninth Circuit’s “server test” (from Perfect 10, Inc. v. Amazon.com, Inc.) and held, as a matter of law, that URLs cannot be CMI. On interlocutory appeal under 28 U.S.C. § 1292(b), the Fifth Circuit addressed two certified questions of law:

  1. Whether the “server test” is the proper standard for evaluating infringement of the public display right under 17 U.S.C. § 106(5); and
  2. Whether a URL can be CMI under 17 U.S.C. § 1202, and if so, whether intentional removal can violate § 1202(b)(1).

Summary of the Opinion

  • Display right: The court rejected the “server test” as the governing standard in this circuit, concluding it rests on “weak statutory footing” when it treats fixation/location-of-storage as the dispositive limitation. Instead, the court anchored analysis in the statutory requirement that a public display occurs when a copy is “transmit[ted]” to the public. The Fifth Circuit announced a cabined rule it called the “transmit requirement”: a linking/framing site does not “publicly display” the work when it merely directs a user’s browser to retrieve the copy from the copyright owner (or other authorized source) that controls the transmission—because the linker cannot “transmit content it does not have.”
  • DMCA CMI: The court held the DMCA does not categorically foreclose URLs from being CMI. But given URLs’ “primarily functional” role as locators, a URL would have to clearly convey one of the statutory CMI categories (e.g., title/identifying info, copyright owner info, or a qualifying link) and satisfy the “conveyed in connection with” requirement—an inquiry the court described as fact-specific.
  • Disposition: The court remanded for further proceedings consistent with its opinion, emphasizing the interlocutory posture and leaving ultimate merits determinations to fact development below.

Analysis

1. Precedents Cited

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)

Perfect 10 supplied the district court’s framework: the “server test,” under which a party “displays” a work only if it stores and serves the fixed copy from its own server. The Fifth Circuit treated Perfect 10 as influential but ultimately non-persuasive on the key interpretive move: the Fifth Circuit agreed that ordinary embedding/framing should often avoid display-right liability, yet criticized Perfect 10’s statutory anchoring on “fixed” as effectively importing a possession-on-your-server requirement not found in 17 U.S.C. § 101’s definition of fixation. The court replaced that anchor with “transmit.”

Hunley v. Instagram, LLC, 73 F.4th 1062 (9th Cir. 2023)

The opinion used Hunley to show the Ninth Circuit’s continued commitment to the server test across contexts (not just search engines) and to highlight that the Ninth Circuit itself describes the server test as “crafted” from fixation. That characterization helped the Fifth Circuit frame its critique: fixation alone is an unstable limiter for modern internet display disputes.

McGucken v. Valnet, Inc., 2024 WL 5166624 (9th Cir. Dec. 19, 2024), cert. denied, 145 S. Ct. 1965 (2025)

Cited to demonstrate the server test’s durability in the Ninth Circuit, underscoring the inter-circuit stakes and the Fifth Circuit’s deliberate choice to chart a different doctrinal path while preserving similar practical outcomes.

Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012)

Although addressing the public performance right and contributory liability, Flava Works provided the Fifth Circuit with a functional, transmission-centered analogy: a linker can be like a “telephone exchange” that connects a user to a host server but does not itself “transmit” the protected performance/display. The Fifth Circuit leveraged this reasoning to support its “connecting is not transmitting” principle.

Society of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29 (1st Cir. 2012)

The First Circuit case was used to illustrate how other circuits have treated “fixed” in the online context (finding fixation where works were loaded on a defendant’s server and continuously displayed). This served as a contrast: where the defendant itself hosts/serves the content, transmission/fixation concerns align differently.

Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)

The Fifth Circuit drew on Cartoon Network’s articulation that fixation entails embodiment and more-than-transitory duration. That understanding supported the Fifth Circuit’s critique that fixation is not synonymous with “stored on the defendant’s server,” and therefore is a shaky single lever on which to hang the entire display-right inquiry for embedding.

Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018)

The court cited Goldman as a prominent district-court rejection of the server test’s statutory grounding, with emphasis on user interaction and context. The Fifth Circuit did not adopt Goldman’s fact distinctions as the governing line; instead, it used the controversy to motivate a text-based re-centering on “transmit.”

Leader's Inst., LLC v. Jackson, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017)

Leader's Inst. illustrated intra-circuit district-court discomfort with reading Perfect 10 to require possession of a copy for display liability. The Fifth Circuit cited commentary criticizing that approach and used the case to highlight that “transmit,” not “fixed,” better captures what matters when content is fetched from an origin server.

BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436 (5th Cir. 2017)

BWP Media USA provided a doctrinal bridge: the Fifth Circuit’s volitional-conduct requirement in direct infringement. The court used it to reinforce that operating a system that facilitates internet functionality should not, without more, create direct infringement liability—consistent with the “transmit requirement,” which treats the origin server’s authorized transmission as the legally relevant act.

Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995)

Cited through BWP Media USA for the policy concern that expansive direct liability risks sweeping in “countless parties” whose role is merely to run the infrastructure by which online communications occur.

American Broadcasting Companies, Inc. v. Aereo, Inc., 573 U.S. 431 (2014)

The Fifth Circuit distinguished Aereo, emphasizing that Aereo’s own technology captured and retransmitted content, whereas embedding/framing in this case involved requesting content from the publisher’s server. The court thus treated Aereo as a caution against overgeneralizing from a service that itself “initiated” transmissions.

Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021) and Bell v. Eagle Mt. Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022)

These cases supported the court’s point that even where a display-right theory is narrowed, fair use remains an important statutory “limiting principle” in internet-related copyright litigation.

MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc., 622 F.3d 361 (5th Cir. 2010) and Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001)

These informed the court’s discussion of DMCA § 1201 anti-circumvention as a separate statutory tool focused on bypassing access controls, distinct from infringement analyses tied to how works are displayed or used after access.

Energy Intel. Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261 (5th Cir. 2020)

This was the Fifth Circuit’s key internal precedent on CMI breadth. It held that a digital filename can be CMI if it fits a statutory CMI category and is conveyed in connection with the work. The court used that logic to reject categorical exclusions for URLs while still requiring a close statutory fit.

Fischer v. Forrest, 968 F.3d 216 (2d Cir. 2020)

Cited regarding the elements of a § 1202(b)(1) claim (existence of CMI, removal/alteration, and intentionality), framing the remand issues once the Fifth Circuit declined to categorically exclude URLs as CMI.

Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:21-CV-32-KHJ-MTP, 2022 WL 3222892 (S.D. Miss. Aug. 9, 2022) (“Emmerich I”)

Emmerich I provided factual and procedural context for “Framed View” versus “Full-Text View” and mattered in the background because Full-Text reproduction had already been treated as infringing in prior litigation, underscoring that the key legal fight on appeal concerned framed linking rather than wholesale copying.

2. Legal Reasoning

A. The Fifth Circuit’s Textual Re-centering: from “Fixed” to “Transmit”

The court began by unpacking nested statutory definitions in 17 U.S.C. § 101 to interpret the right “to display the copyrighted work publicly” in 17 U.S.C. § 106(5). It distilled the display right into a composite: to show a fixed work by transmitting it to the public.

The court’s central critique of the server test was methodological: it treats “fixed” as the operative constraint and effectively transforms fixation into a “possession on defendant’s server” requirement. But the statutory definition of “fixed” turns on embodiment and duration, not on where the embodiment sits or who owns the hardware. The court therefore considered the server test “on weak statutory footing” insofar as it implies that fixation necessarily means “stored on the alleged infringer’s server.”

The Fifth Circuit instead emphasized that the public display right is narrowed by “publicly,” which the statute defines using the concept of transmit. Under the court’s approach, the legally salient question becomes: who is the source of the transmission that makes the images/text appear on the user’s device? If the embedder merely sends directions (HTML) and the publisher’s (authorized) server responds by transmitting the work, then the embedder has not “transmitted” the display.

B. The “Transmit Requirement” (as Announced)

The court labeled its rule the “transmit requirement” and described it in functional terms: a website cannot transmit a work that it does not have. When a framing/embedding service only points the user’s browser to the copyright owner’s server (or another authorized source) that controls whether and what to send, the service is not the party “transmitting” the work to the public.

The court reinforced this reading with two supporting pillars:

  • Volitional conduct (direct liability): Drawing from BWP Media USA, Inc. v. T & S Software Assocs., Inc., the court aligned its interpretation with the principle that direct infringement requires meaningful causal volition, not merely providing a system that facilitates online interactions.
  • Internet “opt-out” reality and permissions: The court explained that the internet is generally “open” (content is accessible unless blocked), while copyright is structured around exclusive rights and authorization. The opinion suggested that technological tools (paywalls, crawler blocks, embed restrictions, etc.) and licensing concepts (including implied license) help reconcile the two. The court also noted DMCA § 1201 anti-circumvention as an additional statutory backstop where access controls are bypassed.

C. DMCA § 1202: URLs Are Not Categorically Excluded, But Must “Clearly Convey” CMI

On CMI, the court applied a similar interpretive discipline: it refused a categorical rule (“URLs can never be CMI”), relying on the DMCA’s broad definition of CMI and its own prior holding in Energy Intel. Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P. that digital filenames can qualify if they fit within § 1202(c)’s enumerated categories.

But the court also emphasized a practical-textual constraint: CMI must be “conveyed in connection with” the work. Because URLs are primarily functional locators rather than inherent identifiers, the court required that an asserted “URL-as-CMI” must clearly convey the statutory information—e.g., a title, an identifying owner name, or a qualifying link—such that it actually communicates CMI rather than merely pointing to a location where content happens to reside. The court identified multiple factual variables that could matter on remand, such as whether:

  • the domain name reliably corresponds to the copyright owner (especially where rights are assigned);
  • the “slug”/descriptor corresponds to a statutory “title” or other identifying information;
  • the URL is stable and used in a way that communicates identifiers, not merely location; and
  • the URL (if treated as a “link to such information” under § 1202(c)(7)) actually links to qualifying CMI (e.g., a page identifying ownership/terms).

Because these issues depend on implementation and context, the court remanded without deciding whether Emmerich’s specific URLs were CMI or whether their alteration/removal was “intentional” within § 1202(b)(1).

3. Impact

A. In the Fifth Circuit: A New Governing Lens for Embedding/Framing Claims

The most immediate doctrinal consequence is that Fifth Circuit courts evaluating framed/in-line linking under § 106(5) are directed away from the Ninth Circuit’s “server test” label and toward a textual inquiry centered on transmission origin and authorization. In practice, the “transmit requirement” may often converge with the server test’s outcomes for ordinary embedding (because the host server supplies the content), but it does so through a different statutory mechanism, potentially affecting edge cases where “fixation” arguments are contested.

B. Litigation Strategy: Shifting Pressure to Other Theories

By narrowing direct display-right exposure for ordinary framing, the decision is likely to shift plaintiffs’ emphasis toward:

  • Reproduction/distribution claims (where content is actually copied/hosted, as in “Full-Text View” scenarios);
  • Secondary liability theories where third parties upload infringing copies (the court repeatedly noted secondary liability remains distinct and available);
  • DMCA § 1201 circumvention claims where access controls are bypassed; and
  • DMCA § 1202 CMI claims, but now with heightened focus on proof that a particular URL truly “conveys” CMI and that removal was intentional.

C. DMCA CMI: Opening the Door (Narrowly) to “URL-as-CMI” Arguments

The Fifth Circuit’s refusal to categorically exclude URLs as CMI creates a new potential front in DMCA litigation. But the court simultaneously signaled strong skepticism that most URLs will qualify given their functional nature and the need for clarity/notice. As a result, the likely practical effect is not a blanket expansion, but a fact-intensive screening regime in which only carefully structured, clearly communicative URLs (if any) survive.

D. Inter-circuit Dynamics

The opinion deepens a methodological divide: the Ninth Circuit continues to apply the server test, while the Fifth Circuit adopts a different textual anchor (“transmit”). Although the Fifth Circuit suggested results may often be similar, the split matters because statutory interpretation governs national internet practices, and further appellate attention (including Supreme Court review) becomes more plausible as divergent rationales mature.

Complex Concepts Simplified

Framing / in-line linking (embedding)
A site can make your browser pull content from another site’s server and show it inside the first site’s page/app. The content may look like it is on the first site, but technically your device is receiving it from the original host server.
The “server test”
A rule (from Perfect 10, Inc. v. Amazon.com, Inc.) that generally treats a site as “displaying” content only if the site stores the content on its own server. If it only links/frames content stored elsewhere, it is not a direct display-right infringer.
The Fifth Circuit’s “transmit requirement”
The Fifth Circuit’s replacement framing: the key is who transmits the work to the public. If the alleged infringer only provides directions and the authorized host server actually transmits the work, then the alleged infringer has not “publicly displayed” the work under § 106(5).
Volitional conduct
For direct infringement, courts often require that the defendant meaningfully caused the infringing act—not merely provided a tool or system that others use.
Copyright Management Information (CMI)
Ownership/attribution/terms metadata protected by DMCA § 1202—like an author name, copyright owner name, title, or identifying numbers/symbols—when it is “conveyed in connection with” the work.
Why a URL is hard to treat as CMI
A URL typically tells you where something is located, not who owns it or what the title/rights information is. The court said a URL could qualify only if it clearly communicates the statutory identifiers (a fact-specific showing).

Conclusion

This Fifth Circuit decision establishes two notable guideposts. First, it declines to adopt the Ninth Circuit’s “server test” as the controlling standard for § 106(5) display claims and instead announces a “transmit requirement” approach grounded in the statute’s public-transmission language: ordinary framing that merely directs a user to an authorized host server’s transmission generally does not amount to a direct public display by the framer. Second, it holds the DMCA does not categorically exclude URLs from being CMI, while emphasizing that URLs’ functional nature means only URLs that clearly convey statutory identifiers and are “conveyed in connection with” the work can qualify—an inquiry requiring factual development on remand.