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!).
Assume there is a painting in a public gallery displayed with permission. Someone without permission sets up a camera and broadcasts the painting to billboards all over the world. Isn't the person with the camera an infringer? Not according to the 9th or 5th Circuits. That's where I'm stuck.
ReplyDeleteThe Fifth Circuit version does quite ok at this, because it focuses on the transmitting entity, which is your camera operator. Our brief also suggested that "digital streaming cameras may be able to display by
ReplyDeletetransmission without possessing a copy"