The U.S. Court of Appeals for the Fifth Circuit rejected Emmerich Newspapers' attempt to hold an aggregation site directly liable for copyright infringement because it published links to the newspaper's articles. The court concluded that a site that directs a user's browser to request a copy of content from the copyright owner's servers does not, by itself, transmit the work or communicate it to the public.
The case arose from Emmerich Newspapers v. Particle Media. The Electronic Frontier Foundation (EFF), along with public-interest organizations and trade associations, had filed a brief urging the court to reject the newspaper's theory. Under that theory, when an aggregation site displays links to protected articles, it has effectively displayed those articles and may be directly liable for copying or displaying them.
A New Test with a Similar Practical Result
For roughly two decades, U.S. courts have applied what is known as the “server test” to identify the party responsible for unlawful availability: direct liability usually falls on the party that controls the server hosting the protected work, not on the user or the site that directs others to it. But the Fifth Circuit declined to adopt that test in its previous form and instead used a standard focused on the party responsible for transmitting the content.
Applying that standard, the court held that directing a user's browser to request a copy located on the copyright owner's devices does not amount to transmitting or communicating the content. The court stated in its decision: “Although we take two different paths to reach the result, the server test and the test we announce end up in a similar place: a website cannot transmit a work it does not own.”
Why Does This Matter?
The practical result preserves broad room for one of the most common forms of use on the web: sharing and embedding links to access images, videos, or articles. EFF says that adopting Emmerich's position would have made embedding links a legally risky activity and could have prompted many sites to avoid it, harming the exchange of ideas and knowledge online.
This is an editorial reading of the decision's impact, not an expansion of its holding: the court did not retain the “server test” as the governing rule, but reached a similar result by asking a different question: who actually transmits the content? The decision therefore remains important particularly for how liability is analyzed, not because it eliminated every form of liability associated with links or embedding.
URLs and the DMCA
Emmerich also argued that its URLs constitute “copyright management information” (CMI) under the Digital Millennium Copyright Act (DMCA), and that displaying the articles under a different URL tampers with that information. EFF warned that adopting this reasoning could expose users to significant risks for simple actions such as using URL-shortening services, with the statutory damages potentially reaching $25,000 per violation.
But the court, relying on EFF's argument, held that URLs are first and foremost tools for locating content and do not necessarily provide sufficient information about the nature of the work behind the link. It therefore set a high threshold before treating a URL as copyright management information. The decision provides web users and websites with important protection, while questions concerning the scope of that protection and its application to different situations remain tied to the facts of each case.