The Fifth Circuit Reframes The Copyright "Server Test" With A "Transmit Requirement"

In Emmerich Newspapers, Inc. v. Particle Media, Inc. (No. 25-60550, Aug. 27, 2026), the Fifth Circuit answered two certified questions out of the Southern District of Mississippi and, in doing so, changed how copyright display-right defenses should be briefed in this circuit.

When a website embeds or in-line links to someone else's article or photo, the content appears seamlessly on that site. But the file itself never leaves the original owner's server. The visitor's browser is simply following instructions to go fetch it from the source. For nearly two decades, the Ninth Circuit's answer to whether that counts as copyright infringement has been the "server test," announced in Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007): a website that does not store a copy of the work on its own server is not “displaying” it, no matter how the page looks to the user. Put simply, whoever hosts the file is on the hook, and the linker is not. Copyright owners have long argued that this