Copyright update: The Fifth Circuit says “no” to the Ninth Circuit server test and “maybe” to URLs as copyright management information (CMI)
The Internet is, at its core, a system of knowledge consisting of files stored on computers that are linked and made accessible to the public by URLs. The Fifth Circuit recently addressed the balance of making knowledge accessible and protecting the rights of copyright owners.
In Emmerich Newspapers, Inc. v. Particle Media, Inc. (d/b/a Newsbreak) (5th Cir., Aug. 27, 2026), copyright owner Emmerich sued Particle for copyright infringement based on Particle’s Newsbreak news aggregator website which links to news from Emmerich’s publications and others. Emmerich claimed that (1) Particle infringed Emmerich’s public display rights under the Copyright Act; and (2) Particle’s uniform resource locators (URLs) removed copyright management information (CMI) from Emmerich’s URLs which Emmerich contends were protected from unauthorized alteration or removal under the Digital Millennium Copyright Act (DMCA).
The district court denied Emmerich’s display rights claim applying the Ninth Circuit’s “server test” because Particle only linked to a copy of Emmerich’s content stored on Emmerich’s server without ever possessing the content itself. The district court also denied Emmerich’s CMI removal claim finding that URLs serve primarily as a functional reference to locate addresses on the Internet and do not contain the markers necessary to constitute CMI.
On August 27, 2026, the Fifth Circuit addressed two questions of law presented in the ensuing interlocutory appeal: (1) whether the server test is the correct standard for copyright infringement claims; and (2) whether URLs can constitute CMI, subject to the safeguards of the DMCA.
1. The server test is dead, long live the server transmit test.
Under the Ninth Circuit’s 20-year-old “server test,” the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if the owner links to or frames the electronic information. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). The Ninth Circuit held that a third-party site does not have any “material objects” in which a work is fixed and from which the work can be perceived, reproduced, or otherwise communicated and therefore does not constitute displaying a protected work because it is not “communicating a copy.” Applying the Ninth Circuit’s server test, the district court rejected Emmerich’s claims because Particle did not possess any content owned by Emmerich and only linked to that content, which resided on Emmerich’s servers.
On appeal, the Fifth Circuit held that the server test incorrectly focuses on the definition of “display,” which requires showing a fixed work and rests on the idea that a work is always fixed on a server. Instead, the Fifth Circuit focused on the definition of displaying a work “publicly,” which requires transmitting the work. Reviewing and interpreting the statutory language and definitions, the Fifth Circuit concluded that displaying a copyrighted work publicly requires showing a fixed work by transmitting it to the public.
The Fifth Circuit explained its new transmit test as being two-fold: “first, locating where the transmission originates and, second, determining whether the transmission was permitted.” The Fifth Circuit admitted that,“[a]lthough we take different routes to get there, both the server test and the [transmit] test we announce end up in a similar place: a website cannot transmit a work that it does not have.”
2. URLs as potentially constituting CMI
With respect to the second issue on appeal, Emmerich asserted that its URL constituted CMI and Particle’s removal of Emmerich’s URL violated the DMCA. The Fifth Circuit characterized the issue as (1) whether URLs may be considered CMI under the DMCA, and (2) if so, whether the intentional removal of that URL constitutes a violation of the DMCA.
The district court had rejected Emmerich’s DMCA claim and held that, as a matter of law, URLs are not CMI because they are a functional tool that directs a computer to a certain location.
The Fifth Circuit also noted that, in its appeal, Emmerich had identified no decisions finding URLs as constituting CMI.
However, the Fifth Circuit had previously held that PDF filenames may constitute CMI if they qualify under any of the delineated types of CMI as provided by the DMCA. See Energy Intel. Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261, 277 (5th Cir. 2020).
In Emmerich, applying the reasoning from Energy Intel, the Fifth Circuit concluded that URLs may constitute CMI, but to do so, the URLs must be able to convey notice of the protected information to which it is connected.
First, the Fifth Circuit rejected Emmerich’s argument that the domain name itself provides a standalone basis for a URL to be CMI because the domain name may not be traceable to the copyright owner as required by the DMCA. For example, although the copyrights to the articles at issue were collectively owned by Emmerich, the articles may have been published on news websites with domain names that did not identify Emmerich as the source or owner.
Second, the Fifth Circuit held that when URLs serve a locational purpose only, it is insufficient to cross the threshold from a functional use to one that identifies a copyrighted work. However, the Fifth Circuit also noted that a future court could conceivably discern that the URL website descriptor as-applied meets the CMI requirements, similar to PDF filenames.
Third, while most URLs change when the linked object is located on a different server or a different folder, the Fifth Circuit held that if a link were stable and connected to a qualifying page that provided notice of the CMI it is linked to, the DMCA could provide a basis for URLs to constitute CMI.
Having laid out these requirements for a URL to constitute CMI, the Fifth Circuit remanded the case to the district court to conduct a fact-specific inquiry as to whether Emmerich’s URLs contain any of the CMI hallmarks and whether the alteration or removal of them by Particle was done in such a way as to violate the DMCA.
3. Key takeaways
The Ninth Circuit’s server test now has a rival in the Fifth Circuit’s transmit test. While the Fifth Circuit admits that its new test may be a close sibling of the old one, the fact that a second circuit court has now delineated a different test may signal that the US Supreme Court may have to step in to identify the correct standard.
Finally, following the Fifth Circuit’s application of the filename CMI analysis from Energy Intel to URLs, we may find that content owners may increasingly adopt stable and descriptive URLs to strengthen arguments that such URLs constitute CMI protected under the DMCA.
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