Fifth Circuit Rules Embedding Online Content Isn't Copyright Infringement
The Fifth Circuit ruled embedding online content does not infringe copyright under a new legal test.
Why it matters: This ruling clarifies key legal risks for law firms and tech providers advising on online content use and digital rights management. It shapes copyright practices amid evolving digital technologies.
- Fifth Circuit issued the ruling on August 27, 2026, in Emmerich Newspapers, Inc. v. Particle Media, Inc.
- The court rejected the Ninth Circuit’s 'server test' for copyright infringement via embedding.
- Introduced the 'Transmit Requirement'—requiring content transmission from unauthorized sources to prove infringement.
- The ruling found Particle Media’s embedding did not publicly display content from its own servers, so no infringement occurred.
- URLs were not excluded from qualifying as copyright management information under the DMCA but require further factual assessment.
On August 27, 2026, the Fifth Circuit Court of Appeals issued a significant ruling in Emmerich Newspapers, Inc. v. Particle Media, Inc. addressing whether embedding online content constitutes copyright infringement. Emmerich Newspapers operates more than 26 local news publications across Mississippi, Arkansas, and Louisiana, while Particle Media's NewsBreak app aggregates and displays news content by embedding links.
The court disavowed the previous server test used by the Ninth Circuit. That test focused on whether the embedding party hosted the copyrighted content on their own servers. Instead, the Fifth Circuit introduced the Transmit Requirement. Under this new standard, copyright owners must demonstrate that the embedded content originated from unauthorized sources or that the defendant transmitted the content without permission.
The ruling found that Particle Media's embedding did not constitute a public display under the Copyright Act because the content wasn’t transmitted from Particle Media’s servers. This supports embedding as a lawful way to display online content, an important clarification for digital platforms and legal advisors.
The court also addressed the Digital Millennium Copyright Act (DMCA), concluding that URLs are not categorically excluded from being considered copyright management information (CMI). However, it remanded for further factual development to determine whether specific URLs qualify.
Legal experts note this ruling shifts the framework for assessing copyright infringement claims in the digital era, helping law firms and technology providers navigate embedding and linking content responsibly. While the ruling pertains directly to news content, it may have broader implications as courts continue evaluating digital content use.
By the numbers:
- August 27, 2026 — date of the Fifth Circuit’s ruling
- 26+ — local news publications operated by Emmerich Newspapers
- 1 — new legal test introduced, the 'Transmit Requirement'
Yes, but: The ruling doesn’t explicitly address the impact of the 'Transmit Requirement' on other embedded content types like videos or music, leaving some uncertainty for future cases.
What's next: Further cases will likely explore how the 'Transmit Requirement' applies broadly, especially regarding whether specific URLs qualify as copyright management information under the DMCA.