Opinion

Emmerich Nwspr v. Particle Media

Court: Court of Appeals for the Fifth Circuit
Filed: Aug 27, 2026
Status: Published
Cited by: 0 cases

The opinion

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United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 25-60550 August 27, 2026

____________

Lyle W. Cayce

Clerk

Emmerich Newspapers, Incorporated,

Plaintiff—Appellant,

versus

Particle Media, Incorporated, doing business as Newsbreak,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:23-CV-26

______________________________

Before King, Higginson, and Duncan, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

As we understand the operation of the internet exoterically, it consists

of websites and links that are, in the truest sense, embedded in our everyday

life. But this appeal turns on the esoteric. We must understand the

innerworkings of this technology to comprehend how another framework—

that of copyright law—can be superimposed on it.

Emmerich Newspapers, Inc. (“Emmerich”), a publisher of various

local news publications, sued Particle Media, Inc. (“Particle”), asserting

claims of copyright infringement. Particle operates NewsBreak, a news

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aggregator website and application, in which it links to news from various

publications, including those Emmerich owns and publishes.

This appeal ultimately concerns technical aspects of the internet that

enable NewsBreak to operate. Emmerich claimed that Particle “frames”

Emmerich articles in a way that infringes upon Emmerich’s exclusive right

to the public display of its own content, as provided under the Copyright Act

of 1976. Additionally, Emmerich claimed that its URLs, or uniform resource

locators, that identify the location of its website on the internet, constitute

“copyright management information” (“CMI”), which is protected from

unauthorized alteration or removal under the Digital Millenium Copyright

Act (“DMCA”). Accordingly, Emmerich claimed that when Particle

displayed Emmerich’s content under Particle’s own URLs, it removed

Emmerich’s CMI in violation of the DMCA.

The district court denied these claims. Applying the Ninth Circuit’s

“server test,” the district court determined that because Particle did not

have a copy of the content stored on its server and only linked to Emmerich’s

server, Particle did not infringe on Emmerich’s display rights. See Perfect 10,

Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). Moreover, the district

court found that URLs serve primarily as a functional reference to locate

addresses on the internet and, therefore, do not contain the markers

necessary to constitute CMI.

On interlocutory appeal, Emmerich presents two questions of law:

(1) whether the server test is the proper standard to apply to copyright

infringement claims, in accordance with the text and meaning of the

safeguards of the DMCA.

Given the ubiquity of linking on the internet, we recognize the great

practical effects that could follow our answers to these questions. We are

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careful to only answer the questions of law before us, minimally. From careful

analysis of the statutory texts, we conclude, first, that Particle’s manner of

linking does not run afoul of the Copyright Act, although we anchor on

different language than that of the server test. Second, we find that the

DMCA does not foreclose URLs from constituting CMI, but given the

functional purpose of URLs, for a URL to be CMI, it would need to clearly

convey the characteristics required by the statute. For the reasons discussed

below, we remand for proceedings consistent with this opinion—

incorporating the fullness of facts related to these technologies.

I. Background

Emmerich owns and publishes over 26 publications both in print and

online, serving communities in Mississippi, Arkansas, and Louisiana.

Emmerich asserts copyright infringement claims against Particle, a news

aggregator based in Mountain View, California. Particle developed a

specialized search engine called NewsBreak, which connects users to news

from an array of publications on both its free website and its app. In

particular, NewsBreak collects local and national news content into a single

newsfeed for users.

Although the questions presented in this interlocutory appeal are ones

of law, we must first provide a backdrop of the underlying technology at issue,

as well as the pertinent provisions of the Copyright Act and the DMCA.

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A. Server and Linking Technology

This appeal relates to two core functions that undergird the operation

of the internet as we know it: servers and linking. We briefly contextualize

the role of these functions in the broader internet ecosystem.1

The internet is, in essence, a network of connections. Starting with

the very place a reader is likely seeing this opinion, a webpage (or its

component text and images) is stored on a server. Servers, in effect, are the

locus centers of the internet. They not only store content, such as webpages

or various components of webpages, but also provide this content to

computers that request it. Simply, servers function “to serve data to some

other computer that has requested it.” Stephan S. Dalal, The Basic Operations

of a Webpage, 1 Geo. L. Tech. Rev. 234, 237 (2017). The software behind

servers “has three core features: the ability to handle requests by other

computers; to store and organize files in a certain way; and to make those

files accessible . . . through the internet.” Id. The first of these features is

central to this case.

To see any webpage, our computers are engaging in a series of steps

behind the scenes. Servers that store, also understood as “host,” webpages

can be accessed by visiting their specific addresses, or their URLs as we

commonly understand them. Thus, when a user wants to visit a certain

webpage, she provides the URL to her internet browser, which consequently

instructs the browser on where to access the webpage—that is, where to

locate the server that hosts that page. See Leader’s Inst., LLC v. Jackson, 2017

WL 5629514, at *10 (N.D. Tex. Nov. 22, 2017).

_____________________

This section describes the technology at issue as we understand it, principally

from the parties’ and amici’s descriptions, relevant caselaw, and scholarly commentary.

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But the process is not yet complete. Even after locating the right

server, the user’s computer must now request access to the relevant

information—here, the webpage—from the server, which occurs through

back-end code. Once the user’s computer receives instructions from the

server, it must read and interpret them in order for the user to see the

webpage. These instructions are often written in a language called

HyperText Markup Language (“HTML”). Thus, when the user sees an

article, for example, she is only seeing it by way of her computer interpreting

the HTML instructions it received from the server that hosts the article.

The above depicts a single process that may occur for a user to see a

webpage. But the World Wide Web is, in fact, a web, wherein this process

occurs constantly to connect users, computers, webpages, and servers alike.

These connections occur through hyperlinks, the second function we are

concerned with in this appeal. As we commonly recognize, links are often

denoted by the blue, underlined URL, but the link itself provides the

information needed for one computer to engage with another, in the process

described above. Links can be integrated in a number of ways. There is simple

hyperlinking, wherein a user clicks the blue, underlined link and is brought to

that new webpage, as occurs when selecting a search result from Google.

There is also “in-line linking,” which is at issue in this case. In-line linking,

also known as embedding, is the “process by which the webpage directs a

user’s browser to incorporate content from different computers into a single

window.” Perfect 10, 508 F.3d at 1161. As far as its visual appearance, content

from in-line links may look different depending on how a webpage is coded

on the back-end. For one, it can appear to be framed, where the linked page

appears in a pop-up frame from the existing page (“Framed View”). Links

can also appear to be incorporated directly into the existing webpage. One

form of this type of in-line linking is the “full-text reproduction” of content,

whereby the linked webpage is reproduced entirely on the linking webpage

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(“Full-Text View”). Emmerich Newspapers, Inc. v. Particle Media, Inc., No.

3:21-CV-32-KHJ-MTP, 2022 WL 3222892, at *1 (S.D. Miss. Aug. 9, 2022)

(hereinafter “Emmerich I”).

Having described this backdrop, we turn to Particle’s use of Framed

View and Full-Text View, alongside the statutes and context at issue in this

appeal.

B. Framed Linking and the Copyright Act Claim

The Copyright Act provides copyright owners with certain

“monopoly privileges,” granting them various rights over the use of their

works. See Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417, 429

(1984); 17 U.S.C. § 106. This appeal pertains to Section 106(5)’s provision

of the right “to display the copyrighted work publicly.” 17 U.S.C. § 106(5).

Emmerich claims that Particle infringed its display rights by showing

Emmerich articles on the NewsBreak App.

Similar to other news apps, the NewsBreak App links, and shows

users content, through Framed View. See Emmerich I, 2022 WL 3222892, at

*1. Building on the description above with respect to how linking works

between a user’s computer and the webpage she would like to see, framing

essentially changes the appearance of how the linked content is shown to the

requesting user. From the NewsBreak newsfeed, users see a thumbnail image

of an article and can click it to link to that article. Id. Then, as the embedding

webpage, NewsBreak creates an empty frame within its own page and fills the

frame according to the instructions it receives from the link; that is, the link

connects to the address of the server for the relevant article webpage and

receives instructions from that server. The frame typically populates with the

linked webpage in its entirety. See Leader’s Inst., 2017 WL 5629514, at *10

(describing framing as “the user [] see[ing] the website she has visited

framing the content the website instructed the web browser to retrieve from

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the other computer”). Users therefore see a live view of the linked webpage

from the other site, but it is viewed from within the frame of the embedder,

NewsBreak. Id. (explaining that the linked information is seen by users “at

the same time as information retrieved from the first computer”). According

to Particle, that means “what the user sees when clicking on the link in

NewsBreak will change if the publisher changes the content.”

Although Particle partners with certain publishers, Emmerich is an

example of a non-partner publisher. For partners, Particle is permitted to

host the partners’ articles on its server, with the partners receiving benefits

such as shared ad revenue. But for non-partner publishers, Particle describes

the NewsBreak App as showing their articles through an “industry-standard

web browser directly from the publisher’s own server.” “The built-in

browser . . . opens the link to the publisher’s website and the user then views

the content that the publisher’s website and server publicly display.” Particle

characterizes this action as “retriev[ing]” a webpage, “just as with other

browsers like Chrome or Safari.” In other words, from the NewsBreak App,

users could see the live page of an Emmerich article on an Emmerich site.

Emmerich’s central issue with Framed View is that users “would not

be aware” they were still on NewsBreak’s website without looking to the

URL or noticing that NewsBreak ads are still shown. Particle disputes this

and argues, for example, that the only NewsBreak elements a user would see

in the frame are “a small Newsbreak ‘N’ at the top left of the screen to direct

the user back to the NewsBreak news feed or search result list, as well as like,

comment, and share buttons and potential ads from the App itself,” which

appear outside the in-app browser component but “not to the exclusion of

the publisher’s buttons and ads on its webpage.”

Such factual disputes, although not before us on appeal, help color the

contours of the central Copyright Act issue on interlocutory appeal. Namely,

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when turning to the statutory text in Part IV—as relevant to the first legal

question before us—we consider how this functionality influences whether a

framed view of third-party content constitutes an infringement of said third-

party’s copyrights.

C. URLs and the DMCA Claim

In response to the “expansion of the speed and capacity of the

Internet,” the DMCA was enacted to reinforce certain protections provided

in the Copyright Act. S. Rep. No. 105-190, at 8 (1998). Congress passed the

DMCA, in part, to “make it unlawful to intentionally provide false

information, or to deliberately alter or delete information provided by a

terms and conditions for its use.” H.R. Rep. No. 105-551, Part 1, 105th Cong.,

2d Sess. (1998).

The DMCA protects a category of data known as “copyright

management information” (“CMI”), which cannot be removed or altered by

any third party. 17 U.S.C. § 1202. The statute defines what types of

information qualifies as CMI, such that it can be deemed information

“conveyed in connection with” the copyrighted work. Id.

Emmerich asserts that its URLs qualify as CMI because they include

“both the title of the work and the name of the copyright owner (i.e., the

publisher).” The parties’ URL dispute derives from another scenario in

which Particle displayed Emmerich articles in Full-Text View, different from

the Framed View described above. In Full-Text view, Emmerich argues that

Particle removed Emmerich URLs, displaying them under Particle’s own

URLs. According to Emmerich, this removal of URLs is an unauthorized

removal of CMI.

For reference again, Full-Text View involved the full reproduction of

articles. Emmerich I, 2022 WL 3222892, at *1. This occurred only on Android

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devices and during a period from 2019 to 2021 in which the NewsBreak App

purportedly glitched. Id. Particle asserts the glitch was fixed once it was made

aware.2

Emmerich describes Full-Text View as showing its article “under

NewsBreak’s URL, with all Emmerich’s identifying information removed

apart from the article’s headline, accompanying photograph, and full-text

news article.” Particle emphasizes that this was a glitch, wherein the articles

were “self-hosted” on NewsBreak as articles are when the publication is a

NewsBreak partner, and the glitch was promptly fixed. But we need not

explore this factual issue further and only remain concerned with the nature

of URLs as CMI—the second certified legal question before us.

II. Procedural History

Emmerich first filed suit against Particle in January 2023 and then

filed another suit in June of 2023. The two actions were consolidated.

Emmerich’s claims were based on infringements regarding over 33,000 of its

articles, but it later dismissed its claims as to 27,100 of the articles. Emmerich

continued with its claims regarding unlawful displays of its articles in both

Framed View and Full-Text View, as well as unlawful removal of its URLs.

The parties proceeded to discovery, after which Emmerich moved for

summary judgment. The district court initially denied its motion for

summary judgment in June 2024. The parties then cross-moved for summary

judgment on various claims. A year later, the district court granted in part

and denied in part Emmerich’s second motion for summary judgment and

_____________________

Moreover, Particle clarified that, starting in 2021, it no longer linked to any

articles from Emmerich’s publishers in general.

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granted in part and denied in part Particle’s motion for partial summary

judgment.

The district court granted Emmerich’s motion on its claim that

articles displayed in Full-Text View violated the Copyright Act, which rested

on the previous litigation between the parties in 2022 in another court in the

same district. See Emmerich I, 2022 WL 3222892, at *5. It denied

Emmerich’s motion and granted Particle’s motion on Framed View: the

district court held that Particle’s display of Emmerich’s articles in Framed

View did not amount to a display under 17 U.S.C. § 106(5) and therefore did

not constitute infringement of Emmerich’s display rights. Separately, the

district court held that “URLs are not conveyed in connection with a

copyrighted work and therefore, do not constitute CMI,” denying

Emmerich’s motion as to this claim and granting Particle’s motion.

A few weeks later, Emmerich moved for an interlocutory appeal.

Pursuant to 28 U.S.C. § 1292(b) and Rico v. Flores, 481 F.3d 234, 238 (5th

Cir. 2007), the district court certified the following two legal questions for

appeal:

1. Whether the “server test” is the proper standard for

evaluating infringement on the copyright holder’s exclusive

display right under 17 U.S.C. § 106(5); and

2. Whether under § 1202 a URL can be considered Copyright

Management Information, and, if so, whether a URLs

intentional removal constitutes a violation of § 1202(b)(1).

The district court stayed proceedings pending resolution of this appeal.

Emmerich timely appealed, and another panel of our court granted

interlocutory review. Jurisdiction is proper, and no party argues otherwise.

The district court had jurisdiction under, inter alia, 28 U.S.C. § 1331, and we

have jurisdiction under 28 U.S.C. § 1292(b).

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III. Standard of Review

We review a district court’s grant of summary judgment de novo.

BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436, 438 (5th

Cir. 2017). Because this case presents an interlocutory appeal from a partial

grant of summary judgment, our review is limited to issues of law. See Garcia

v. Orta, 47 F.4th 343, 348 (5th Cir. 2022). Here, the central legal issues are

interpretation of the Copyright Act and the DMCA. We interpret such

statutes de novo. See BWP Media USA, 852 F.3d at 438.

In light of the interlocutory posture of this appeal, we review only the

two questions that were certified. First, whether the server test comports

with the plain language of the Copyright Act and is the proper standard for

reviewing display right infringement claims. And, second, whether URLs can

constitute CMI, subject to the safeguards of the DMCA.

IV. Display Right

The Copyright Act grants the owner of a copyright the exclusive right,

“[i]n the case of literary, musical, dramatic, and choreographic works,

pantomimes, and pictorial, graphic, or sculptural works, including the

individual images of a motion picture or other audiovisual work, to display the

copyrighted work publicly.” 17 U.S.C. § 106(5) (emphasis added). Violating

this right is an infringement of the copyright, redressable through damages

and injunctive relief against the infringer. 17 U.S.C. §§ 501(a), 502(a), 504.

Emmerich claimed that Particle’s framing of Emmerich articles

infringed its display right. To assess the alleged infringement, the district

court relied on the Ninth Circuit’s approach in Perfect 10, Inc. v. Amazon.com,

Inc., termed the “server test.” 508 F.3d at 1159. Under this 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 such owner in-line links to or

frames the electronic information.” Id. The Ninth Circuit clarified that when

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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’” it cannot be viewed as “communicat[ing] a

copy” and thus is not displaying a protected work. Id. at 1160–61 (quoting 17

U.S.C. § 101).

The district court concluded that the server test is the proper standard

to apply to such infringement claims. Rejecting Emmerich’s arguments in

favor of Particle’s, the district court found that the test does not contravene

the Copyright Act’s plain text or purpose. Applying the server test, the

district court held that Particle’s conduct did not infringe upon Emmerich’s

displayed by Emmerich’s servers.

No other circuit has disavowed the server test. Our court has not yet

addressed the server test, and the question certified on appeal requires us to

consider whether it is the appropriate standard for examining infringement

upon a copyright owner’s right to display its content under Section 106(5),

or whether the statute compels a different understanding.

For the reasons discussed below, we find the server test is on weak

statutory footing. Put simply, the server test focuses on the definition of

display—which requires showing a fixed work. The server test rests on the

idea that a work is always fixed on a server. But we shift the focus to the

definition of displaying a work publicly—which requires transmitting the

work. Although rooted in different statutory text, this shift likely provides

similar results as the server test in many ways.

To arrive at this statutory conclusion, we first anchor to the defined

statutory terms before considering the server test and broader display right

jurisprudence. From there, we compare the language that is most central to

understanding the display right, finding that a focus on the transmittal of the

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content, rather than on where the content is fixed, is most faithful to the plain

meaning of the text, our court’s relevant precedent, and the modern

functioning of the internet.

A. Defining the Display Right

In a matter of statutory interpretation, we “begin with the language of

the statute itself” and “follow the plain and unambiguous meaning of the

statutory language.” United States v. Orellana, 405 F.3d 360, 365 (5th Cir.

2005) (internal quotation marks and citation omitted). Emmerich argues that

the Copyright Act’s plain language “provides no support for the notion that

infringement depends on where the display copy is fixed,” rendering the

server test inconsistent with the statute’s plain language. The parties agree

that the content at issue falls within the orbit of Section 106, but that

“[w]hether it is protected depends on definitions of terms” found in Section

101. Thus, we must consider how the definitions within the statutory

language interact.

The essential language for interpretation is as follows: “to display the

copyrighted work publicly.” 17 U.S.C. § 106(5) (emphasis added). Taking

each definition—and nested definitions—in turn, we assemble a complete

view of the statute.

Display. Turning to the first defined word, to “display” a work

“means to show a copy of it, either directly or by means of a film, slide,

television image, or any other device or process or, in the case of a motion

picture or other audiovisual work, to show individual images

nonsequentially.” 17 U.S.C. § 101 (emphasis added).

As emphasized, to understand the full meaning of “display,” we must

incorporate the meaning of “show” and “copy.”

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Show. The statute provides no definition for “show,” so we consider

its ordinary meaning. See Cotropia v. Chapman, 978 F.3d 282, 289 (5th Cir.

2020); Wis. Cent. Ltd v. United States, 585 U.S. 274, 277 (2018). To “show”

can be understood as “to cause or permit to be seen.” Show, Webster’s

Third New International Dictionary (1976).

Copy. As defined in the statute, copies are “material objects, other

than phonorecords, in which a work is fixed by any method now known or

later developed, and from which the work can be perceived, reproduced, or

otherwise communicated, either directly or with the aid of a machine or

device.” 17 U.S.C. § 101 (emphasis added). Additionally, “[t]he term

‘copies’ includes the material object . . . in which the work is first fixed.” Id.

(emphasis added).

Fixed. As previewed, one of the critical terms to define and interpret

is what constitutes a “fixed” work. The statute provides:

A work is “fixed” in a tangible medium of expression when its

embodiment in a copy or phonorecord, by or under the

authority of the author, is sufficiently permanent or stable to

permit it to be perceived, reproduced, or otherwise

communicated for a period of more than transitory duration.

17 U.S.C. § 101.

Aggregating the above definitions from “display,” the Copyright Act

“defines ‘display’ in very broad terms that encompass a great many

activities.” R. Anthony Reese, The Public Display Right: The Copyright Act’s

Neglected Solution to the Controversy Over RAM “Copies,” 2001 Univ. Ill.

L. Rev. 83, 87. But our work does not end there: “the copyright owner’s

exclusive right is not a right to make all displays but only a right ‘to display

the copyrighted work publicly.’” Id. (quoting 17 U.S.C. § 106(5)). Thus,

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understanding the meaning of “publicly” serves as an essential narrowing

and clarifying mechanism.

Publicly. To display a work “publicly” means “to transmit or

otherwise communicate” it “to the public, by means of any device or

process.” 17 U.S.C. § 101. Particle, quoting the Ninth Circuit, notes that

“Congress did not define ‘otherwise communicate,’ but it must ‘at least

involve[] sending out some sort of signal via a device or process to be received

by the public at a place beyond the place from which it is sent.’” See Columbia

Pictures Indus., Inc. v. Pro. Real Est. Invs., Inc., 866 F.2d 278, 280, 282 (9th

Cir. 1989).

Finally, to understand the definition of “publicly,” we must also

incorporate the word “transmit.”

Transmit. To “transmit” means “to communicate [a performance or

display] by any device or process whereby images or sounds are received

beyond the place from which they are sent.” 17 U.S.C. § 101.

* * *

From the definitions above, the statutory language in

Section 106(5)—“to display the copyrighted work publicly”—distills to the

following: To show a fixed work by transmitting it to the public. With the

comprehensive text in mind, we consider whether the server test comports

with Section 106(5) or whether the statute compels a different approach.

B. The Server Test

Following its inception in Perfect 10, the server test has been applied

in the Ninth Circuit for nearly two decades. To date, however, other courts—

district and circuit alike—have ranged in whether to embrace, distinguish, or

criticize the test. Before we analyze the statutory basis for the test, we first

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discuss the Ninth Circuit’s approach, followed by how it has been treated in

subsequent jurisprudence in other federal courts.

1. Perfect 10

In the foundational “server test” case, the publisher of an adult

subscription website, Perfect 10, sued Google and Amazon. Perfect 10, 508

F.3d at 1157. Perfect 10 owned the copyright to the images it published, and

certain ones were located in a subscriber-only, password-protected area of its

website. Id. Although Google did not directly include these protected images

in its image search results, “[s]ome website publishers republish[ed] Perfect

10’s images on the Internet without authorization.” Id. The challenge was

that Google’s search engine included in its index “the webpages containing

these images,” and, by way of that, provided thumbnails of the images in

response to user inquiries. Id. If the user clicked on the thumbnail, the user’s

browser would “access[] the third-party webpage and in-line link[] to the full-

sized infringing image stored” on the third-party’s computer. Id. Thus the

user saw the image in Framed View from Google’s webpage, and Perfect 10

sued Google, asserting copyright infringement for this alleged display. Id.

The central issue the Ninth Circuit resolved in this case was whether

Google can be liable for its linking practices. As developed in Perfect 10, the

court fastened to a particular interpretation of “fixed” in the Copyright Act.

Id. at 1160. The court held that content is “fixed in a tangible medium of

expression” when it is “embodied (i.e., stored) in a computer’s server (or

hard disk, or other storage device).” Id. In other words, “the owner of a

computer that does not store and serve the electronic information to a user is

not displaying that information, even if such owner inline links to or frames

the electronic information.” Id. Terming it the “server test,” the court

clarified that linking to content is not an infringement because the content is

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not fixed through that method—it must be stored on the server in order to be

fixed.

As applied, the Ninth Circuit found that Google “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 thus cannot

communicate a copy.” Id. at 1160–61 (quoting 17 U.S.C. § 101). Google only

“provide[d] HTML instructions that direct[ed] a user’s browser to a website

publisher’s computer that stores the . . . image,” and “HTML instructions

[are] not equivalent to showing a copy.” Id. at 1161. In turn, there was no

infringement of the display right because Google merely provided coded

HTML instructions to request the content from the server hosting it.

The Ninth Circuit has reaffirmed the server test since Perfect 10 was

decided nearly two decades ago. See, e.g., McGucken v. Valnet, Inc., 2024 WL

5166624, at *1–2 (9th Cir. Dec. 19, 2024), cert. denied, 145 S. Ct. 1965 (2025).

That court has applied the server test outside of the search engine context as

well. In Hunley v. Instagram, LLC, plaintiffs alleged that Instagram violated

their exclusive display right by permitting third-party sites to embed the

photographers’ Instagram content. 73 F.4th 1062 (9th Cir. 2023). The court

held that “[t]he application of the Server Test depends on the method used for

displaying a photo—not the context in which the photo is displayed.” Id. at

1071. The process used in Hunley is the “same process used by Google to

show users third-party images: embedding.” Id. Embedding, as described in

Section I.A, is the type of linking where the embedding website will follow

the HTML instructions it receives from the host website the content is stored

on, after which “the browser will retrieve the image, caption, and formatting

from the host website and display all these elements alongside content from

the embedding website.” Id. at 1064. As the Hunley court described, “[t]he

final product will show the external image ‘embedded’ seamlessly into a

third-party website.” Id. There, the Ninth Circuit again applied the server

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test to find that embedding, with no content stored on the alleged infringer’s

computer, is not copyright infringement. Id.

2. Subsequent Jurisprudence

No circuit has yet adopted the server test outright, but other courts’

internet–copyright jurisprudence provides informative reasoning

nonetheless.3 Starting with the First Circuit, in Society of Holy Transfiguration

Monastery, Inc. v. Gregory, the court considered, in part, whether an

Archbishop violated the Monastery’s display rights to certain translated

works by posting “verbatim or near-identical versions” to his own website.

689 F.3d 29, 36–38 (1st Cir. 2012). Deeming the posted translations to be

sufficiently similar to the Monastery’s, the court also considered whether the

Archbishop’s works were “fixed” and applied an interpretation similar to the

Ninth Circuit. Id. at 55. The court recognized that the copies at issue “were

embodied or ‘fixed in a tangible medium of expression,’ as they were loaded

on the [defendant’s] computer server and posted to his Website.” Id. (first

quoting 17 U.S.C. § 101; then citing Cartoon Network LP, LLLP v. CSC

Holdings, Inc., 536 F.3d 121, 129 (2d Cir. 2008); and then citing Perfect 10,

508 F.3d at 1160). The court also found the copies met the “transitory

duration” requirement under the statutory definitions “as they were

_____________________

In addition to the First and Seventh Circuit cases discussed in this section, the

D.C. Circuit has considered an analogous case. See IMAPizza, LLC v. At Pizza Ltd., 965

F.3d 871, 877 (D.C. Cir. 2020) (reasoning, in the context of the reproduction right, that the

“ephemeral transmission of a picture across the internet” does not constitute a “copy”).

The Second Circuit also recently commented on the server test but, because the defendant

did not take a position on whether “publication via embedding constitutes the making of a

copy under the Copyright Act and thus whether it can give rise to a claim for

infringement,” and instead assumed, arguendo that its embedding was actionable, the court

did not decide whether to adopt the server test. Richardson v. Townsquare Media, Inc., No.

25-291-CV, 2026 WL 1097502, at *2 n.2 (2d Cir. Apr. 23, 2026).

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continuously displayed on the Archbishop’s Website.” Id. Accordingly, this

constituted a violation of the display right. Id.

The Seventh Circuit, in a case that parallels the present appeal in key

ways, reached a similar outcome, although its decision turned on the process

of transmitting. In Flava Works, Inc. v. Gunter, copyright owner Flava Works

produces and distributes adult content to websites that are behind paywalls.

689 F.3d 754, 755–56 (7th Cir. 2012). The alleged infringer was “myVidster,

an online service engaged in what is called social bookmarking,” where its

users can point others to content of interest, after which myVidster requests

the “‘embed code’ from the server that hosts . . . the video,” and then

“creates a web page that makes the video appear to be on [its] site.” Id. at

756. The issue specific to Flava Works was that a myVidster user had

uploaded a copy of a Flava Works video, which was bookmarked and then

myVidster linked to that copy. Id. Flava Works thus sued myVidster for

violating, in part, its exclusive public performance right. Specifically, Flava

Works asserted that myVidster was responsible for contributory

infringement (sometimes referred to as secondary liability), which is

“personal conduct that encourages or assists the infringement.” Id. at 757.

This is different from direct infringement or liability, as Perfect 10 involved.

The Seventh Circuit found no such infringement occurred. Although

different than the display right, we find the Flava Works court’s reasoning

apt. In particular, the court determined that providing users with links to

content “is not transmitting or communicating.” Id. at 761 (cleaned up); see

also id. at 757 (“Like a telephone exchange connecting two telephones,

[myVidster] is providing a connection between the server that hosts the video

and the computer of myVidster’s visitor.”). Put simply, the court

determined that “giving web surfers addresses where they can find

entertainment” on websites through “embed[ded] code” is no more

infringement than the New Yorker’s “listing plays and giving the name and

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address of the theaters where they are being performed.” Id. (citing Perfect

10, 508 F.3d at 1159–61). Thus, the court found that myVidster is not liable

for infringement. Id. at 1160–61 (“The direct infringers in this case are the

uploaders; myVidster is neither a direct nor a contributory infringer—at least

of Flava’s exclusive right to copy and distribute copies of its copyrighted

videos.”).

To date, our court has cited Perfect 10 but has not yet opined on the

server test directly. See, e.g., UMG Recordings, Inc. v. Grande Commc’ns

Networks, LLC, 118 F.4th 697, 715–16 (5th Cir. 2024), vacated on other

grounds, 146 S. Ct. 2152 (2026); BWP Media USA, 852 F.3d at 439. Most

relevant to the present case, in BWP Media USA, our court considered a

question of whether a forum website, where infringing content was posted,

was liable for the copyright infringement. 852 F.3d at 442. We recognized

that “it does not make sense to adopt a rule that could lead to the liability of

countless parties whose role in the infringement is nothing more than setting

up and operating a system that is necessary for the functioning of the

Internet.” Id. (quoting Religious Tech. Ctr. v. Netcom On-Line Commc’n

Servs., Inc., 907 F. Supp. 1361, 1372 (N.D. Cal. 1995)). Our court focused on

the elements needed for direct infringement liability, id. at 444, which

similarly was the focus of the Ninth Circuit in crafting the server test, Perfect

10, 508 F.3d at 1159. We found that the forum website was not the direct

infringer because it did not post the infringing content itself. Id. at 444. We

did not consider secondary liability, as it was not on appeal before us,

however we clarified that our decision does not diminish its scope. Id. Citing

Perfect 10, we recognized that secondary liability still provides an

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“incentive[]” for parties, such as forum websites, to avoid infringement from

occurring on their site.4 Id. (citing Perfect 10, 508 F.3d at 1175).

Thus, the above circuits, including our own, have discussed these

issues in ways that parallel the server test either in reasoning or in outcome,

even if not directly adopting it. Yet, a number of district courts have

addressed the propriety of the server test—some of which have expressly

declined to adopt it. Even in those cases, the district courts draw distinctions

between their cases and Perfect 10 but do not themselves necessarily advance

a competing test, reflecting the complexity of identifying the right standard

for this statute.

For example, in Leader’s Institute, LLC, a district court in the

Northern District of Texas considered an infringement stemming from

linking by framing. The court distinguished Perfect 10, finding there is a

difference between websites that act as browsers (such as Google Images),

which only display content once a user clicks into it, and websites (such as

the one at issue in the case) that display that content outright with no user

interaction. Leader’s Inst., 2017 WL 5629514, at *11. Additionally, the court

rejected the proposition that a public display necessarily requires the

infringer to possess a copy of the infringed work, “to the extent” Perfect 10

must be read to require that possession. Id.

Further, a district court in the Southern District of New York also

declined to apply the server test on similar grounds. In Goldman v. Breitbart

_____________________

As the amici Copyright Scholars, in support of Particle, note: our court’s

reasoning on this point is “the same point the Ninth Circuit made for the server test,”

which is that even the non-directly liable parties could still be held accountable for

secondary liability, but it is a different inquiry entirely. Br. of Copyright Scholars as Amici

Curiae Supporting Appellee, at 20 (No. 25-60550) (hereinafter “Amicus Br. of Copyright

Scholars”) (citing Perfect 10, 508 F.3d at 1161).

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News Network, LLC, the court recognized that “Perfect 10 was heavily

informed by two factors—the fact that the defendant operated a search

engine, and the fact that the user made an active choice to click on an image

before it was displayed.” 302 F. Supp. 3d 585, 595 (S.D.N.Y. 2018). Finding

that those factors were not present in its case, the district court held that

applying the server test was “neither appropriate to the specific facts of th[e]

case, nor . . . adequately grounded in the text of the Copyright Act.” Id. at

596.

Importantly, in differentiating Perfect 10, the Goldman district court

found that “the role of the user was paramount.” Id. at 596. Although Perfect

10 involved a search engine that “provided a service whereby the user

navigated from webpage to webpage, with Google’s assistance,” the same

was not true in Goldman. Id. There, the facts involved a photo, taken by the

plaintiff who holds the copyright; after the photo went viral on Twitter, now

known as X, news outlets then published articles “featur[ing] the Photo by

‘embedding’ the Tweet into articles.” Id. at 587. The court highlighted that

the user’s direct involvement in seeing content in the search engine context

“is manifestly not the same as opening up a favorite [] website to find a full

color image awaiting the user, whether he or she asked for it, looked for it,

clicked on it, or not.” Id. at 596.

In sum, much has been said with respect to the server test by other

courts. And our circuit is faced with a question in this appeal of determining

where, across that spectrum, we fall on the basis of our interpretation of the

statute.

C. The Display Right: Transmitting Fixed Works

Returning to the statutory text, we must consider whether the server

test—as informed by subsequent jurisprudence—comports with the

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aggregated, defined language of the display right: To show a fixed work by

transmitting it to the public.

As described in the preceding section, the server test centers around

the constraining role that the term “fixed” plays in the statute. We conclude

that the statutory basis for grounding the server test in that term alone is

lacking. Instead, we find that the operative word for analysis is “transmit.”

Although we take different routes to get there, both the server test and the

test we announce end up in a similar place: a website cannot transmit a work

that it does not have.

1. Fixed

The server test was “crafted . . . out of the Copyright Act’s fixation

requirement” and, in turn, found fixed content lies in a server. Hunley, 73

F.4th at 1076. Under the server test, the statutory term “fixed” is

transformed into a requirement that an infringer must possess its own copy

on its own server. Technologically, this premise makes sense. As Particle

explains, for example, the function of linking only means that back-end code

receives instructions for displaying the content from another site. Particle

“does not itself display” a fixed work because only Emmerich’s server has

the fixed copy. Emmerich admits as much but argues that this possession

requirement is not found in the statute.5

The difficulty in accepting this approach is that the statutory

definition contains a lower bar for considering content to be fixed than the

Ninth Circuit’s interpretation, as used in the server test. That is, the

definition of “fixed” does not require permanency or possession. As the

_____________________

Emmerich also argues that, statutorily, copies “include the original works fixed

in the websites,” so Particle violated the statute by “connect[ing] its customers to the

original works fixed within Emmerich’s websites.”

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Second Circuit found, the definition only imposes two requirements:

embodiment and duration. Cartoon Network LP, LLLP, 536 F.3d at 129. As to

the embodiment requirement, “the work must be embodied in a medium,

i.e., placed in a medium such that it can be perceived, reproduced, etc., from

that medium.” Id. And, as to the duration requirement, “it must remain thus

embodied ‘for a period of more than transitory duration.’” Id. at 127 (citing

2 Melville B. Nimmer & David Nimmer, Nimmer on

embodied for sufficient duration, it is not “fixed” and thus not a proper

“copy” of the original work. Id.

Accordingly, we do not find statutory support to construe “fixed” as

requiring possession. The challenge is this: even though embedded links

show live content by way of interpreting HTML instructions from the

content host, the embedder’s webpage is not necessarily so fleeting that it

could not meet the definition of “fixed,” meaning embodied for more than a

transitory duration. Using the Goldman case as an example: the news outlets

embedded the copyrighted photo by linking to tweets that included the

photo. 302 F. Supp. 3d at 587. While not directly addressed in the district

court’s opinion, the server test would falter, in our view, for a simple reason:

it is possible for another third-party website to embed the photo by way of

linking to one of the news outlets, thereby demonstrating that the news

outlet’s showing of the work was sufficiently permanent or stable such that it

would be considered fixed for purposes of the statute. Although this raises

other questions, such as direct versus secondary liability, we remain focused

on what the statutory text compels. Thus, to the extent the server test

requires the infringer to possess the copyrighted content on its own server,

we find that stretches the Copyright Act’s definition of a “fixed” copy

beyond what the plain language can support.

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2. Transmit

With less clarity from the fixation requirement alone, we turn to the

statutory language that limits the display right to public transmissions.

As to this element, Emmerich argues that to “transmit” is to

“communicate,” per the statutory definition and, applying this, “the images

fixed on Emmerich’s computers were communicated to other places by a

process employed by Particle.” Emmerich also returns to the definition of

“show”—or, by ordinary meaning, to cause to be seen. It argues that the

statute does not require “that the alleged infringer must be the one who

communicates the copyrighted work.” Therefore, because Particle’s links

are responsible for requesting instructions from Emmerich, Particle is

ultimately responsible for “caus[ing] Emmerich’s computers ‘to

communicate’ the copyrighted works.” We disagree with both readings of

the statutory language.

The issue concerns a different understanding of what it means to

actually “transmit” content. Is Particle transmitting the content because it

ultimately provides the platform on which the content is viewed? Or is it

Emmerich that transmitted the content because it is the only party that

actually has the content (hosted on its server) that can be shared in the first

place? We find the latter approach to be the most faithful to the technical

process and the statutory text for the reasons discussed below.

We consider the technical process in light of the definition of

“transmit,” which is “to communicate [a display] by any device or process

whereby images or sounds are received beyond the place from which they are

sent.” 17 U.S.C. § 101. As amici Copyright Scholars explain, “[e]mbedding

does not itself transmit or host the displayed copy”; it only “directs a user’s

device to retrieve content from a third-party server that controls the

transmission.” Amicus Br. of Copyright Scholars at 4; see also 5 Patry on

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fact “that defendant did not transmit a display of the ‘work,’ but rather

merely sent to the user’s browser instructions for where the copy resided

(typically plaintiff’s own website), and from which the instructions for

actually displaying the work occurred”). Importantly, “the host server

retains ultimate control over whether and what content is transmitted in

response to a request.”6 Amicus Br. of Copyright Scholars at 6 (emphasis

added).

To understand the technological feature that is determinative here,

we provide an analogy—albeit one that is far more rudimentary than the

technology at issue. Think of Particle as a switchboard operator: In the same

way a switchboard operator cannot connect a caller without the intended

recipient picking up the phone and agreeing to be patched through, Particle

cannot connect a user to Emmerich’s content without Emmerich’s

transmittal of the content. Just as the critical act in having a telephone

conversation is someone picking up the other end, we find that the critical act

in the linking process is the transmittal of content, which requires courts to

evaluate the party responsible for “communicat[ing]” the copy. 17 U.S.C.

§ 101.

* * *

_____________________

The amici Copyright Scholars also draw a distinction between directly or

indirectly displaying the content. “An infringement action against the original server would

stop the display; one against the embedder would only stop one set of directions.” Amicus

Br. of Copyright Scholars at 10 (citation omitted). However, an indirect showing also

“requires a ‘device or process’ of some kind,” meaning that when a server responds to a

user’s request to see a link, it requires a process of transmitting the data that will display

that content. Id. at 9 (citing 17 U.S.C. § 101). “Thus, the entity whose server initiated the

transmission that displays the image—here, the copyright owner—is the entity engaged in

the indirect showing.” Id.

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Therefore, we conclude that pointing or directing a user’s browser to

request and receive the copyright owner’s own copy does not involve

transmitting, or communicating, the content “beyond the place from which

[it is] sent.” 17 U.S.C. § 101. If the transmission must come from the content

owner in order for a user to see any content at all, then no copyright liability

exists for the linking site. If not, we must find where the transmission

originates. Simply, one cannot transmit content it does not have. We call this

“the transmit requirement.”

Our interpretation of transmit comports with other aspects of the text,

rendering the display right language internally cohesive and strengthening its

faithfulness to the Copyright Act’s plain meaning. Namely, this

interpretation is bolstered by the statutory definition of “display,” which

means to “show” the work. 17 U.S.C. § 101. As described in the definitions

section above, to “show” means to cause to be seen. According to

Emmerich, Particle is responsible for causing the copy to be seen, because it

is responsible for sending the coded request to Emmerich’s server, which

Emmerich responds to with back-end HTML instructions for Particle to

display Emmerich’s content. In oral argument, Emmerich even described

Particle as conveying options to users, who then request the content, thus

triggering a chain of communications—including triggering Emmerich “to

display the article.”7 Amici supporting Particle argue that this interpretation

requires a “long chain [that] divorces the word ‘cause’ from the word

‘display.’” Amicus Br. of Google et al. at 19 (No. 25-60550). We agree. This

_____________________

We also recognize that, characterized this way, the technology behind the

NewsBreak newsfeed is akin to Google Images showing users a thumbnail that they can

click. See, e.g., Goldman, 302 F. Supp. 3d at 596 (“In Perfect 10, Google’s search engine

provided a service whereby the user navigated from webpage to webpage, with Google’s

assistance. This is manifestly not the same as opening up a . . . website to find a full color

image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”).

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sequence of steps does not follow naturally from the original language that

“show” is defining.

The Restatement of Copyright cautioned against anchoring on such

an outstretched sequence as well. American Law Institute,

Restatement of Copyright, Tentative Draft No. 6, at §6.09, Comment g

(2025) (hereinafter “Restatement of Copyright, Comment g”). Namely, it

recognizes that although linking could theoretically constitute a “process

whereby images . . . are received beyond the place from which they are sent,”

17 U.S.C. § 101, it casts doubt on construing “process” so broadly.

Restatement of Copyright, Comment g. The Restatement described it as

“unlikely . . . that Congress would have intended that chain of events” to

render the provider of the link responsible for a display right infringement.8

Id.

To prevent an attenuated chain, we therefore find persuasive the

notion that connecting does not equate to displaying.9 To hold otherwise would

be to extend liability to webpages or search engines that provide links to

another page, as they, too, would be “causing” the display. “The Copyright

Act’s definition of ‘display’ requires a defendant to ‘show a copy’ of a work—

not merely point to one that someone else has shown.” Amicus Br. of

_____________________

The Restatement provides its own analogy—that of a newscaster reading a

website address during a broadcast, perhaps prompting viewers to visit the address, thereby

potentially rendering the broadcaster an infringer by publicly displaying the website. Id. If

“process” is to be construed broadly, under its analogy, the newscaster would potentially

be “publicly displaying the images on the [] website and thereby infringing unless

authorized by the copyright owner.” Id.

In accordance with our focus on where the transmission comes from, the

Restatement also recognizes an embedded link as indistinguishable from a link that, when

clicked, brings the user to a new page. Restatement of Copyright, Comment g.

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Our interpretation also does not create friction with the other courts

that have considered this issue. Our analysis matches the Ninth Circuit’s in

that both seek to limit the broad display right in accordance with the statutory

text.10 We differ only in that we find hinging on “transmit” to be more

faithful to the statutory text—and more constraining—than the Ninth

Circuit’s reliance on the term “fixed” as a limiting principle.

We recognize that there is an apparent tension between how users

may view this technology and what the Copyright Act’s language compels us

to find. Linking, specifically in-line linking, can make content appear as

though it is on the host or third-party webpage. But, in our Article III role,

our obligation is to interpret the constraining language—especially its nested

definitions—as enacted by Congress. Amicus Br. of Copyright Scholars at

12; Perfect 10, 508 F.3d at 1161 (“[T]he Copyright Act, unlike the Trademark

Act, does not protect a copyright holder against acts that cause consumer

confusion.” ).

D. The “Transmit Requirement”

The “transmit requirement” is two-fold: first, locating where the

transmission originates and, second, determining whether the transmission

was permitted. This refinement of server test principles is supported by our

precedent regarding volitional conduct and is vitally congruent with the

natural opt-out structure of the internet. We address each in turn.

_____________________

See Restatement of Copyright, Comment g (describing “[a] key issue” in the

Ninth Circuit’s cases as being “whether defendants have engaged in activity that comes

within the statute’s definition of ‘publicly’ displaying a work,” even though “not all of

those opinions expressly analyze it”).

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1. Volitional Conduct

Our court’s decision in BWP Media USA, although centered on a

different copyright issue, provides parallel reasoning for our purposes.

There, we focused on the question of “whether volitional conduct is required

to prove a claim of direct infringement.” BWP Media USA, 852 F.3d at 438.

The facts at issue in that case involved the third-party site hosting “the forum

on which infringing content was posted, but its connection to the

infringement end[ed] there.” Id. at 442. It was individual users who “posted

the infringing content” on the forum. Id. at 442.

Against this backdrop, we formally “adopt[ed] the volitional-conduct

requirement in direct-copyright-infringement cases.” Id. at 444. Although

we did not define “volition” specifically, we recognized that volition could

be interpreted to “require[] a relationship between the system owner and the

copyrighted work that will permit the owner to prevent infringement of the

work without the necessity of monitoring the behavior of third parties.” Id.

at 440 n.1 (quoting Robert C. Denicola, Volition and Copyright Infringement,

37 Cardozo L. Rev. 1259, 1276 (2016)). Said differently, adopting this

requirement means a party is only liable if their conduct “cause[d] in some

meaningful way an infringement,” and their involvement in the infringement

is more than passive. Id. at 442. We remained cautious, in particular, of

imposing liability on parties “whose role in the infringement is nothing more

than setting up and operating a system that is necessary for the functioning

of the Internet.” Id. (quoting Religious Tech. Ctr. v. Netcom On-Line Commc’n

Servs., Inc., 907 F. Supp. 1361, 1372 (N.D. Cal. 1995)).11

_____________________

Notably, in BWP Media USA, our court considered and distinguished the

Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc., 573 U.S.

431 (2014). See BWP Media USA, 852 F.3d at 442. Aereo concerned a public performance

infringement claim against Aereo, which provided paying subscribers with access to

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Such is the case here. When the embedding webpage, such as Particle,

only hosts the platform that receives content when transmitted from the

finding that it is the direct infringer. Id. at 442. Thus, the copyright owner’s

volitional conduct reinforces our interpretation of the display right. For

example, content is only readable on Particle’s page when Emmerich, as the

content.12 Thus, we find that the transmit requirement is also supported by

our volitional conduct precedent.

_____________________

television programs over the internet at roughly the same time as they were being

broadcast. Aereo, 573 U.S. at 436. The Court concluded that the Aereo streams constituted

public performances of the works within the meaning of “transmit” in Section 101, thereby

violating the Copyright Act. Id. at 444–49. However, as the Ninth Circuit has stated, Aereo

did not address “what it means to transmit a copy, because the public performance right

has no such requirement.” Hunley, 73 F.4th at 1074. Moreover, we recognized in BWP

Media USA that Aereo was intricately involved in the transmission process, as was salient

to the Court’s reasoning. See BWP Media USA, 852 F.3d at 442; Aereo, 573 U.S. at 442,

436–37 (describing that, “[b]y means of its technology (antennas, transcoders, and

servers),” Aereo’s system “saves the data in a subscriber-specific folder” on its hard drive

and then “stream[s] the saved copy . . . to the subscriber of the Internet”). Finally, as our

court has also recognized, the Court in Aereo acknowledged that “other cases involving

different kinds of service or technology providers” may require different analyses. Id. at

441 (quoting Aereo, 573 U.S. at 444).

However, if the content was not transmitted from a source authorized to display

it, then secondary liability may be implicated. See Metro–Goldwyn–Mayer Studios, Inc. v.

Grokster, Ltd., 545 U.S. 913, 930 (2005) (describing secondary liability as when “[o]ne

infringes contributorily by intentionally inducing or encouraging direct infringement, and

infringes vicariously by profiting from direct infringement while declining to exercise a

right to stop or limit it” (internal citations omitted)); see also Cox Commc’ns, Inc. v. Sony

Music Ent., 146 S. Ct. 959, 967 (2026) (discussing the applicability of Grokster).

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2. Opt-Out System

Statutorily re-grounded, the transmit requirement approach

recognizes the difficulty in fitting the copyright scheme into the ever-

changing world of the internet.

The internet exists as an opt-out system. It was “designed to be an

open system in the sense that any computer, using a set of standard

communication protocols, can communicate with other networked

computers without explicit permission.” John S. Sieman, Using the Implied

License to Inject Common Sense into Digital Copyright, 85 N.C. L. Rev. 885,

889 (2007); see also Michael P. Goodyear, The Server Test Quandary and

Embedding Permission Culture, 75 Okla. L. Rev. 263, 309 (2023). Yet,

owner of a work only gains statutory copyright protections by registering

their work. See, e.g., 17 U.S. Code § 412. But more relevant for our purposes,

registered copyright owners have control over dissemination of their work; a

content; otherwise, the owner holds certain exclusive rights. See 17 U.S.C.

§ 106 (providing that “[t]he owner of copyright under this title has the

exclusive rights . . . to authorize” enumerated uses of a copyrighted work).

The juxtaposition of imposing an opt-in rights framework on a ubiquitous

opt-out platform generates, understandably, tension when these rights make

their way to the internet. See Jie Lian, Twitters Beware: The Display and

Performance Rights, 21 Yale J.L. & Tech. 227, 236 (2019) (“Such conflict

between the opt-in copyright system and the opt-out Internet may explain

many controversies about embedding in copyright law.”).

However, with the transmit requirement, we ease this inherent

tension by shifting the focus to the statutory requirement that the content be

transmitted by an authorized source, often the copyright owner—and,

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critically, that the source allow the transmission. To understand this, we

draw on the opt-in aspect of copyright: authorizations or licenses. Copyright

owners may grant a nonexclusive license to others. This can either be express

or implied, wherein the copyright holder engages in conduct “from which

[the] other [party] may properly infer that the owner consents to his use.” De

Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236 (1927). In Field v.

Google Inc., a district court in the District of Nevada applied the concept of

implied license to copyrighted material in the age of the internet, “where the

1116 (D. Nev. 2006). The court specifically found that “[w]eb site publishers

typically communicate their permissions to Internet search engines (such as

Google) using ‘meta-tags.’” Id. In turn, the lack of permission can be

explicitly clear through the use of a “‘no-archive’ meta-tag.” Id.

As follows from the above, the transmit requirement rests on how the

linking technology works: the communication that occurs at a coded level

between webpages and servers can empower servers to block certain requests

in the same way it can permit displays across pages.13

For example, paywalls can operate as one method of prohibiting

viewers from accessing content that requires an account, subscription, or the

_____________________

While this technology will continue to advance, this general approach, with the

onus of protecting their work on the copyright owner or authorized source, has long been

referenced by scholars. For example, Professor Walter Effross suggested a traffic light

solution to “unwelcomed web-linking,” which entailed a website placing a traffic light icon

on its page to indicate if it granted permission to all (green), some (yellow), or no (red) sites

to embed its content externally. Walter A. Effross, Withdrawal of the Reference: Rights,

Rules, and Remedies for Unwelcomed Web-Linking, 49 S.C. L. Rev. 651, 692 (1998). The

equivalent to Effross’s traffic light happens behind-the-scenes here, in the back-end coding

and communication that occurs between websites and servers.

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like to access.14 In the Seventh Circuit’s case, Flava Works, Inc., the

copyrighted content at issue was, in fact, behind a paywall. 689 F.3d at 757,

762. Users of the third-party website could only see the paywalled content

because another user had uploaded a copy of it. Id. The court found

insufficient grounds for an injunction against the third-party website’s

embedding because it was not the source of the uploaded copies—or the

party contravening the paywall. Id.

Additionally, news aggregators such as Particle rely on “web crawler”

technology to index the internet for relevant content.15 This is similar to the

technology behind search engines like Google, for example. And, as with

Google, websites may block their content from being included in these

indices. Field, 412 F. Supp. 2d at 1116. Further, HTML, which is the language

Emmerich uses to relay instructions back to Particle, can also block the

receiving site from embedding material. See Amicus Br. of Copyright

Scholars at 23. Increasingly, these protections are also incorporated into

websites that host but do not own the copyrighted material, such as social

media websites. See id. at 23.

Thus, the transmit requirement approach, which looks for a permitted

transmission, not only captures the statutory meaning, but also incorporates

the interests and capabilities of the parties involved, both copyright owner

and embedder alike.

_____________________

We recognize that in the proceedings below, Emmerich provided that its site was

paywalled. It argued that Particle, therefore, circumvented its paywall in order for the

content to be transmitted. As discussed in the following section, the claim of circumvention

was not a viable one. In any case, we note that whether or not a transmission was truly

permitted is a question that district courts would need to consider in the first instance.

As described by the district court, “NewsBreak uses a ‘web crawler’ which

systematically searches the internet for news content, then scans the pertinent websites,

analyzes them for their content, copies the content verbatim and saves it on its website.”

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3. Limiting Principles

We recognize that the practical effects of this ruling may be

consequential in a number of ways. However, because we resolve this case as

a matter of law, without the benefit of facts to further inform the analysis, we

must also recognize the ways in which our decision is limited, including how

the approach will necessarily adapt outside the confines of a question of law,

and how the statutory safeguards provide limitations.

For one, our decision leaves open the ways in which the “transmit

requirement” approach will develop when applied to true factual

circumstances. The interlocutory appeal before us only asks us how to

interpret the Copyright Act’s display right. Our analysis has rested on two

principles: (1) the transmission of the copy is from an authorized source,

whereas the embedding webpage only makes a transmission request; and (2)

the authorized source could have rejected the request. Yet, there is a lurking

question of how this approach would need to transform if a copyright owner

had no technological capability to reject the transmission request. We only

address the circumstances generally presented in the underlying case here,

wherein such permissions appear to be present, and we therefore do not pass

on the application of this approach beyond these circumstances.

Additionally, the Copyright Act provides its own limiting principles

with safeguards that further protect copyright owners’ rights. See Goldman,

302 F. Supp. 3d at 596 (rejecting the server test but finding that its decision

would not have “dire consequences,” because there are “strong defenses to

liability separate from this issue”). One such safeguard is the fair use

doctrine. See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 18–19 (2021). This

doctrine, as codified in the Copyright Act at 17 U.S.C. § 107, provides a

“limited privilege in those other than the owner of a copyright to use the

copyrighted material in a reasonable manner without the owner’s consent”

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where “rigid application of the copyright statute would stifle the very

creativity it is meant to foster.” Bell v. Eagle Mt. Saginaw Indep. Sch. Dist., 27

F.4th 313, 321 (5th Cir. 2022) (cleaned up). Fair use operates as an

affirmative defense, thus the alleged infringers have “the burden of

establishing fair use.” Emmerich I, 2022 WL 3222892, at *3. Illustratively,

Particle’s Full-Text View versus Framed View structure demonstrates this.

As the Emmerich I district court previously held in earlier litigation, Particle’s

Full-Text View of Emmerich’s articles was unlawful because it was not a fair

use, see id. at *5, even though it would not constitute a display right

infringement under the server test (just as the Framed View articles would

not). Thus, when linked according to formats such as Full-Text View or the

like, fair use provides a viable pathway to prevent links that rise to the level

of infringement, regardless of the test.

Finally, there are protections for circumventing copyright owners’

measures for guarding their own content. These protections come from

Section 1201 of the DMCA, which provides that “[n]o person shall

circumvent a technological measure that effectively controls access to a work

protected under this title.” 17 U.S.C. § 1201(a)(1)(A).16 For example, though

ultimately unsuccessful, Emmerich argued below that Particle’s way of

indexing public information to pull into the NewsBreak newsfeed

circumvented its server’s paywall. The district court found that Emmerich

did “not demonstrate[] that Particle’s access was unauthorized,” and

therefore found for Particle on Emmerich’s claims of circumvention.

Nevertheless, this claim provides a viable pathway to hold accountable

_____________________

The DMCA defines “circumvent[ing] a technological measure” as “to

descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass,

remove, deactivate, or impair a technological measure, without the authority of the

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parties that do engage in demonstratable circumvention. Further, in MGE

UPS Systems, Inc. v. GE Consumer & Industrial, Inc., our court clarified that,

under the DMCA, circumvention is concerned with the technological

measure protecting the copyrighted material and “does not concern itself

with the use of those materials after circumvention has occurred.” 622 F.3d

361, 366 (5th Cir. 2010) (quoting Universal City Studios, Inc. v. Corley, 273

F.3d 429, 443 (2d Cir. 2001)). This ultimately comports with the transmit

requirement, which is similarly concerned with and premised upon there

being a technological protection in place for the copyright holder.

* * *

In light of the foregoing discussion, our decision should not be

understood to mean that embedding will always be permissible. We have

focused on the first step of the analysis—whether there was infringement at

all based on where the transmission originates. But even if the answer to that

is in the negative, subsequent fact-specific analyses and accompanying

statutory protections do not lose analytical importance.

V. Copyright Management Information

In its second issue on appeal, Emmerich asserts that its URL

constitutes CMI; therefore, when Particle improperly used Full-Text View

to show Emmerich articles, it removed Emmerich’s URL in violation of the

DMCA. The issue is two-fold: first, whether URLs may be considered CMI

under the DMCA and, second, if so, whether the intentional removal of that

URL constitutes a violation of DMCA Section 1202(b)(1). At the outset, we

note that Emmerich has identified no court that has found URLs to constitute

CMI.

We have previously touched on a related issue, having to do with

whether filenames are CMI. Energy Intel. Grp., Inc. v. Kayne Anderson Cap.

Advisors, L.P., 948 F.3d 261, 277 (5th Cir. 2020). There, we observed that

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“CMI is defined broadly.” Id. As applied to the question of PDF filenames,

we found that nothing in the statute “indicates that a digital file name cannot

be CMI” and concluded that filenames may constitute CMI, but only if they

qualify under any of the delineated types of CMI, as provided by the DMCA

and discussed below. Id.

The district court below held that URLs, as a matter of law, are not

CMI. It found that “URLs fail to provide notice that any of the statutory

information is associated with a particular (copyrighted) work that appears at

the online location indicated in the URL.” Likewise, it observed that URLs

are merely references to “where information can be retrieved, at a given time,

but not necessarily permanently.” Thus, the district court distinguished our

Energy Intelligence Group opinion on filenames, because filenames provide an

“identifying name given to an electronically stored file” that is explicitly

connected to the copyrighted work it stores, whereas URLs are a functional

tool that directs a computer to a certain location.

We first turn to the plain meaning of the DMCA to discern whether

URLs can ever meet the statutory definition of CMI, before considering

whether the removal of URLs would constitute a violation of the statute.

A. Plain Meaning of CMI

The DMCA protects certain information from being altered or

removed without the copyright owner’s authorization. 17 U.S.C. § 1202(c).

_____________________

The district court also held that, because it found no copyright infringement,

there necessarily could be no unauthorized use of CMI as relates to those claims. See Fischer

v. Forrest, 968 F.3d 216, 223 (2d Cir. 2020) (determining that, to state a Section 1202(b)(1)

claim, plaintiffs must allege “(1) the existence of [CMI] on the allegedly infringed work, (2)

the removal or alteration of that information and (3) that the removal was intentional”).

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Under Section 1202(c), CMI is defined as “any of the following information

conveyed in connection” with a display of a work, including:

(1) The title and other information identifying the work,

including the information set forth on a notice of copyright.

...

(3) The name of, and other identifying information about, the

forth in a notice of copyright.

...

(7) Identifying numbers or symbols referring to such

information or links to such information.

17 U.S.C. § 1202(c). Classic examples of CMI include the script in books that

watermarked Getty images, ISBN numbers that function as unique

commercial identifiers for books, and the like. CMI must be “conveyed in

connection with copies . . . or displays of a work, including in digital form.”

Id.

The parties fundamentally disagree as to what the statutory language

requires and how URLs compare. As with the Copyright Act analysis above,

assessing whether information constitutes CMI under the DMCA begins

with the “plain and unambiguous meaning of the statutory language.”

Orellana, 405 F.3d at 365. Thus, we parse each of the three relevant

provisions of the statutory CMI definition to develop an understanding of

whether URLs can qualify as CMI under any provision, as a matter of law.

It bears underscoring that we are only tasked with answering the

narrow legal issue here of whether URLs can ever constitute CMI. While this

interlocutory appeal is certified only as to the question of law here, we use an

example URL from Emmerich for reference throughout the analysis:

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https://www.pressregister.com/jonestown-studies-speedbumps-safety-

concerns. Emmerich describes the components of its URL as follows: (1) the

“domain name” is the text that provides a general link to the domain

homepage (for its publication The Press Register in this example,

“www.pressregister.com”), and (2) if the domain name is followed by a

slash, the full URL now includes a description of the article, or the “website

descriptor” (in this example, “jonestown-studies-speedbumps-safety-

concerns”).

Incorporating this example, we consider whether any of the parts that

makeup the URL could comport with a basis for CMI under § 1202(c).

1. Notice

First, we consider whether URLs meet the overarching statutory

requirement, which is that CMI must be “conveyed in connection with

copies . . . or displays of a work, including in digital form.” 17 U.S.C.

§ 1202(c) (emphasis added). There is no definition for “convey” in the

DMCA, so we look to its ordinary meaning. See Cotropia, 978 F.3d at 289. By

definition, to “convey” means “to impart or communicate by statement,

suggestion, gesture, or appearance.” Convey, Merriam Webster’s

Collegiate Dictionary (1998).

The district court reasoned that “the URLs fail to provide notice that

any of the information set out in § 1202(c)(1)–(8) is associated with a

particular (copyrighted) work that appears at the online location indicated in

the URL,” and therefore, the URLs are not “conveyed in connection with a

copyrighted work.” To reach the concept of an underlying notice

requirement, the district court relied on a number of other district court cases

regarding the purpose of CMI as an external information signal. See, e.g.,

Fashion Nova, LLC v. Blush Mark, Inc., No. CV 22-6127 PSG (RAO), 2023

WL 4307646, at *4 (C.D. Cal. June 30, 2023) (“The central purpose of CMI

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is to inform the public that something is copyrighted and to prevent

infringement.” (internal citation and quotation omitted));

FurnitureDealer.Net, Inc. v. Amazon.com, Inc., No. CV 18-232 (JRT/HB),

2022 WL 891473, at *19 (D. Minn. Mar. 25, 2022) (same); Fischer v. Forrest,

286 F. Supp. 3d 590, 610–11 (S.D.N.Y. 2018) (“CMI exists to inform the

public that a work is copyrighted and by whom.”), aff’d, 968 F.3d 216 (2d

Cir. 2020).

Emmerich takes issue with this approach because the “notice

requirement is reflected nowhere within the text of the DMCA.” We

disagree.

“Conveying” information is external-facing by nature. That is, to

understand if something was conveyed, one would have to consider how the

recipient would understand the information she received. Thus, we must

return to the central question: whether URLs convey CMI or, said differently,

whether URLs impart or communicate CMI. As purely a question of law before

us, without factual nuance, we do not assert that URLs could never provide

this notice. However, there are challenges that make this a high bar.

URLs first and foremost serve a function. As a locational reference

tool, it stands to reason that one would not naturally come to expect a URL

to contain CMI, but instead instructions of where to locate the copyright-

protected work itself. Amici support this as well, noting that “[i]t defies

reason to suggest that most authors, owners, or readers would rely on URLs

to communicate the title of a work, much less its copyright owner.” Br. of

Elec. Frontier Found. et al. as Amici Curiae Supporting Appellee, at 19 (No.

25-60550) (hereinafter “Amicus Br. of Elec. Frontier Found. et al.”).

Second, it follows from the very nature of URLs that they are not

structured to convey CMI. URLs may be formatted in a variety of ways, often

proprietary to the website owner or operator—much in the same way that

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filenames are. See Energy Intel. Grp., 948 F.3d at 277. Some URLs may

contain a website descriptor close to the title of an article, while others

contain more general phrases or even numerical identifiers. With the focus

placed on how the CMI would be perceived—that is, whether one would

understand the URL to be conveying CMI—the very structure of the URL

would have to provide such clarity.

Finally, many websites may be copyrighted under a group registration,

making any conveyance of notice more difficult. As a publication, for

example, Emmerich’s copyright registrations are group registrations that

cover newspapers on a monthly basis, but not specific articles. In turn, a given

URL may not necessarily be connected to the copyright that protects the

article in general.

We return to the statutory provisions under which Emmerich asserts

CMI, keeping in mind that to constitute CMI under any provision, URLs

must be able to convey notice of the protected information it is connected to.

2. Domain Name

Emmerich first points to a basis for CMI under Section 1202(c)(3),

which looks to “[t]he name of, and other identifying information about, the

of copyright.” 17 U.S.C. § 1202(c)(3). It asserts that the domain name in the

URL provides identifying information about the “copyright owner” as set

forth in its notice of copyright as well.

In the example, Emmerich would assert that The Press Register, as the

domain name, is the copyright owner. However, this is made more complex

by the fact that, according to Emmerich, its newspapers (or domains) can

transfer or assign their copyright interests to Emmerich. For example, The

Press Register has done exactly that, assigning its rights to Emmerich. Still,

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Emmerich contends that the “[o]wnership of a copyright can be evinced

from the original copyright holder.”

Particle disagrees with this characterization, maintaining that even if

the domain name matched the copyright owner, it does not trump the fact

that “URLs are purely functional, associated with locations.” Moreover,

Particle emphasizes that the domain name offers little insight precisely

because it may not be the copyright owner, as evidenced here. Indeed,

because of the wide variance in domain names, chain of title will be difficult

to assess and, even if possible to trace, would likely contravene the plain text

of the DMCA, which requires that the CMI relate to the copyright owner—

not the prior owner. 17 U.S.C. §1202(c)(3).

For these reasons, which also diminish the notice the URL can

provide, the domain name cannot provide a standalone basis for a URL to be

CMI.

3. Website Descriptor

Further, we consider whether the URL’s website descriptor always

qualifies as a title under Section 1202(c)(1), which provides that “[t]he title

and other information identifying the work, including the information set

forth on a notice of copyright,” constitutes CMI. 17 U.S.C. §1202(c)(1). In

the Press Register example, Emmerich would assert that “jonestown-studies-

speed-bumps-safety-concerns” is the title of the article, swapping out

hyphens for spaces since URLs do not permit spaces.

This analysis most closely parallels our court’s analysis in Energy

Intelligence Group, where we held that filenames may qualify as titles under

Section 1202(c)(1). 948 F.3d at 277. The district court below drew a

distinction between a filename that is a clear “identifier associated with a

particular work” and a URL, which is a “reference directing a user to place

on the Internet where information can be retrieved, at a given time, but not

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necessarily permanently.” In particular, because the “content at the URL

may be deleted or moved, or the link itself may be deactivated,” the district

court determined that it does not rise to the same level as a filename in what

it conveys.

A key inquiry is whether the website descriptor in the URL is akin to

a filename or not. In Energy Intelligence Group, we concluded that, because

“CMI is defined broadly” and “[n]othing in § 1202 indicates that a digital

file name cannot be CMI,” a “PDF’s file name may be CMI if it is ‘conveyed

in connection with copies’ of the underlying work and contains a ‘title and

other information identifying the work.’” 948 F.3d at 277 (quoting 17 U.S.C.

§ 1202(c)(1)) (emphasis added). Further, we recognized that evidence

presented at trial supported the finding that the naming convention of the

files at issue resulted in “‘information identifying’ each [] newsletter.

Therefore, the PDF file names [] were CMI.” Id.

Emmerich asserts that Energy Intelligence Group is directly on point. In

response, Particle argues that website descriptors are merely part of the

larger URL that computers use to find locations on the internet and that

website descriptors do not necessarily match the title of the copyrighted work

syntactically.

Under the plain meaning of the terms at issue, and in light of the notice

imperative, Particle has the stronger argument. However, because of our

prior determination that filenames may constitute CMI, we similarly do not

foreclose that URLs may be CMI in circumstances not presented here.

For one, dictionary definitions are informative. A filename, which may

be protected CMI, is defined as “an identifying name given to an

electronically stored computer file, conforming to limitations imposed by the

operating system, as in length or restricted choice of characters.” Filename,

Dictionary.com, htps://www.dictionary.com/browse/filename (Aug.

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25, 2026); see also Filename, Cambridge Dict.,

https://dictionary.cambridge.org/us/dictionary/english/filename (last

accessed May 20, 2026) (“filename” is “a name that you give to a document

or file on a computer”). By contrast, a URL is a “compact string of numbers,

letters, and symbols that a computer uses to find a resource on a network and

act upon it.” URL, Encyclopedia Brittanica,

https://www.britannica.com/technology/URL (Aug. 25, 2026). Taken

together, the district court aptly summarized that “a file name describes data

while a URL is akin to a roadmap to data on the Internet.” From the

definitions alone, we conclude that URLs primarily operate as a functional

utility of directing someone to the copyrighted work, as opposed to a

filename, which is information inherent to the copyrighted work itself.

A second reason why Emmerich’s categorical reasoning falls short is

that a URL’s website descriptor does not necessarily equate to the title of the

copyrighted work.18 For one, the descriptor is unlikely to match the title of

the work because of the syntax of URLs. It is also true that, website

descriptors can vary widely, rendering it infeasible to determine that URLs

always constitute CMI on account of the difficulty for such descriptors to

convey notice of a copyrighted work’s title. See, e.g., Amicus Br. of Elec.

Frontier Found. et al. at 20 (noting that “many URLs provide even less

information about the underlying website, files or resources they locate,” for

example, YouTube generates random URLs with no information about the

underlying content). Relatedly, as described in the prior section, Emmerich’s

_____________________

Take, for example, a New York Times article. The title of the article was: “3 Ways

Operas Speak to the Moment, With Success and Failure,” yet as evident in the URL, the

website descriptor is different entirely. Gabrielle Ferrari, 3 Ways Operas Speak to the

Moment, With Success and Failure, N.Y. Times (May 19, 2026),

https://www.nytimes.com/2026/05/19/arts/music/american-opera-projects-

experiments-in-opera-heartbeat-opera.html.

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individual articles are not copyrighted works themselves, but are copyrighted

in the aggregate. Thus, even the article title is not necessarily connected to a

copyrighted work.

Perhaps most different from filenames, the core challenge in

evaluating URL website descriptors is how URLs functions as a whole. For

example, the district court here emphasized that “it is perhaps conceivable

that Emmerich could have named some kind of file (data) using the same

information/characters contained in a URL,” but the distinction was that

“Emmerich has never purported to identify the type of file, i.e., data, to

which it has assigned a URL-file name.” Thus, 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.

Again, we remain concerned solely with the question of law and not

the application to Emmerich’s URLs specifically. Thus, we find that a future

court could conceivably discern that the URL website descriptor as-applied

meets the CMI requirements, similar to PDF filenames. Importantly, though,

this question remains a fact-specific inquiry for district courts to conduct in

the first instance.

4. Links

Finally, Emmerich points to Section 1202(c)(7) as a basis for a CMI

designation, which defines CMI as “[i]dentifying numbers or symbols

referring to such information or links to such information.” 17 U.S.C.

§ 1202(c)(7). It contends that “[t]here is no difference between the District

Court’s view of a URL as an address, and a link.” The district court did not

address the link argument because Emmerich failed to argue that it was an

alternative category of CMI in its motions for summary judgment. With the

broader statutory question before us on appeal, we nonetheless include this

as a basis for consideration.

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Although intuitively a URL seems to be a link, the question remains

whether we must construe “link” as a term of art in a particular way. Caselaw

defining “link” under Section 1202(c)(7) is underdeveloped. Particle

suggests that “the ‘link’ contemplated in § 1202(c)(7) is a link from

copyrighted content to a page displaying CMI,” thus it would be circular to

consider the URL of the page with copyrighted content to be the CMI itself.

We agree with Particle’s interpretation of the statute. To qualify as a

link to CMI, the URL would have to connect to an address that displays CMI,

such as a page that contained a website’s copyright, disclosures, and

permissions. Even still, we recognize that the nature of links is that they can

change if the pages they locate are altered. Particle’s expert testified to this,

noting that “[a] URL by definition changes when the resource such as a news

article is located on a different server or in a different folder. Whenever the

location of any object on the Internet changes, the URL changes, by design,

by function, by definition and by logic.”

However, should the link be more stable, should it connect to a

qualifying page, and should it provide notice of the CMI it is linked to, the

broad language in Section 1202(c)(7) could provide a basis for URLs to

constitute CMI.

* * *

Following suit with our approach in Energy Intelligence Group, we leave

open the possibility that certain URLs could possess the hallmarks of CMI.

But, as described in the foregoing sections, several factors are essential to

confirm before reaching that determination, including: whether the domain

name corresponds with the copyright owner; whether the copyright is over

the website as a whole or specific pages; whether the URL is sufficiently

stable and not subject to change; and, above all, whether the URLs are clearly

being conveyed for the purpose of communicating a copyrighted work.

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B. Removal of URLs

Finding that URLs may constitute CMI, we turn to the DMCA’s

second inquiry: whether the intentional removal of a URL constitutes a

violation of Section 1202(b)(1). The statute provides, “No person shall,

without the authority of the copyright owner or the law—(1) intentionally

remove or alter any copyright management information.” 17 U.S.C.

§ 1202(b). The district court did not reach this analysis because it deemed

URLs did not constitute CMI.

In our parallel precedent, we held that if a filename is deemed to be

CMI, then altering that filename would be an unauthorized alteration of

CMI. Energy Intel. Grp., 948 F.3d at 277. Here, having determined that URLs

may constitute CMI, we leave open the analysis of whether the alteration or

removal of a URL that is CMI would violate the DMCA.

We do so because of the different function of URLs as locational

references. Particle points to the widespread impact of a decision holding that

URLs constitute CMI, asserting that “the internet would become a DMCA

quagmire overnight.” In particular, it argues that “[p]recisely because they

are functional, proxies are used for URLs all the time—either to shorten

them, or to share them with others.” Thus, shortening a URL would be a

DMCA violation, even though the URL is just meant to take a user to the

location of the copyrighted work. Our court, for example, incorporates

permalinks of webpages into opinions to capture the source at the time of its

citation. Emmerich attempts to temper the concern about commonplace

URL shorteners, arguing that they would not create an issue because “[t]he

proxy never takes the reader to a different website where the work appears

under a different URL, as occurred here.” Thoughtful examination of this

issue would require factual development, so we cannot faithfully provide a

definitive answer without such facts. Future cases will need to decide where

Case: 25-60550 Document: 106-1 Page: 49 Date Filed: 08/27/2026

No. 25-60550

the line is with respect to such commonplace practices, including whether

there is a distinction between using a URL shortener that excludes CMI or

removing a URL altogether (e.g., framing the content on another webpage,

under a different URL).

In light of the necessity of a fact-specific inquiry, we recognize that

workability concerns abound. If certain URLs, but not others, are deemed

CMI, further frustrating the lack of notice given externally, we must anchor

on whether any alteration or removal was “intentional” to “remove or alter

[the] copyright management information.” 17 U.S.C. § 1202(b).

Thus, we remand not only for consideration of whether Emmerich’s

URLs contain any of the CMI hallmarks as discussed above, but also, if so,

whether the alteration or removal of them was done in such a way as to violate

the DMCA.

VI. Conclusion

This interlocutory appeal asked two questions: (1) Is the server test

the correct standard for a display infringement claim under the Copyright

Act, and (2) Can a URL ever be CMI? We answer the former in the negative,

and in the latter, we do not foreclose the affirmative. But we do so while

seeking to strike a delicate balance and giving considerable statutory context

to adjudicate that balance. Without the benefit of a completed, post-

judgment appeal, with full factual development before us, our holdings are

necessarily cabined by our interlocutory posture. We express no opinion on

the ultimate resolution of Emmerich’s claims, and we leave open future

challenges to come in this space. Nonetheless, these comprehensive answers

should guide the district court in its next steps and provide a framework for

courts in our circuit confronting these questions.

In accordance with the foregoing, we REMAND for proceedings

consistent with this opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.