Emmerich Nwspr v. Particle Media

Summary

The Fifth Circuit, on a 28 U.S.C. § 1292(b) interlocutory appeal, addressed two certified questions of law arising from Emmerich Newspapers' copyright claims against the NewsBreak news aggregator. First, the court rejected the Ninth Circuit's 'server test' as the proper standard for evaluating infringement of the exclusive display right under 17 U.S.C. § 106(5), holding instead that the statutory text—particularly the definition of 'transmit'—requires that the alleged infringer have transmitted the copyrighted work itself; because an embedding website merely directs a user's browser to request content from the copyright owner's server, it does not 'display' the work within the meaning of the Act. Second, the court held that URLs are not categorically excluded from constituting copyright management information (CMI) under the DMCA, but whether a particular URL qualifies is a fact-specific inquiry requiring the URL to clearly convey notice of protected information. The court remanded for further proceedings on both claims.