Is Your Website Content Infringing? Fifth Circuit Rebuffs “Server Test” In Online Embedding Case

For nearly twenty years, the Ninth Circuit’s “server test” was the only appellate standard for determining whether embedded online content infringes a copyright owner’s public display right. The Fifth Circuit has now weighed in, rejecting the “server test” but reaching substantially the same result. In a copyright case between a news publisher and a news aggregator site, the Fifth Circuit concluded that a website embedding copyrighted content from another site does not directly infringe when it merely directs a user’s browser to retrieve that content transmitted by the copyright owner’s server, which retains the ability to permit or reject the request. (Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026)). The court boiled it down to this: “connecting does not equate to displaying.”