5th Circuit puts its own spin on the server test

Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026)

This is being reported as creating a split with the 9th Circuit; I don’t think that’s right in practice. As far as I can tell, the 9th Circuit says that public display is made by the server that transmits the display, while the 5th Circuit says that public display is made by the server that transmits the display. Plenty of good cites to the copyright scholars’ amicus brief that I filed and to the Restatement of Copyright.

The court of appeals also suggested that URLs could constitute CMI, though it recognized that this would often create not just expensive fact-finding but also a separate issue of intentional removal--intentionally removing URLs as a general practice, even if some might be CMI, doesn't seem like it should trigger 1202, similar to the cases holding that stripping metadata from photos isn't actionable even though metadata might sometimes have CMI in it. 

Overall, a good result (and I would have said that even without the repeated citations, promise!).