Emmerich Nwspr v. Particle Media

Case: 25-60550 Document: 106-1 Page: 1 Date Filed: 08/27/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 25-60550 August 27, 2026 ____________ Lyle W. Cayce Clerk Emmerich Newspapers, Incorporated, Plaintiff—Appellant, versus Particle Media, Incorporated, doing business as Newsbreak, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:23-CV-26 ______________________________ Before King, Higginson, and Duncan, Circuit Judges. Stephen A. Higginson, Circuit Judge: As we understand the operation of the internet exoterically, it consists of websites and links that are, in the truest sense, embedded in our everyday life. But this appeal turns on the esoteric. We must understand the innerworkings of this technology to comprehend how another framework— that of copyright law—can be superimposed on it. Emmerich Newspapers, Inc. (“Emmerich”), a publisher of various local news publications, sued Particle Media, Inc. (“Particle”), asserting claims of copyright infringement. Particle operates NewsBreak, a news Case: 25-60550 Document: 106-1 Page: 2 Date Filed: 08/27/2026 No. 25-60550 aggregator website and application, in which it links to news from various publications, including those Emmerich owns and publishes. This appeal ultimately concerns technical aspects of the internet that enable NewsBreak to operate. Emmerich claimed that Particle “frames” Emmerich articles in a way that infringes upon Emmerich’s exclusive right to the public display of its own content, as provided under the Copyright Act of 1976. Additionally, Emmerich claimed that its URLs, or uniform resource locators, that identify the location of its website on the internet, constitute “copyright management information” (“CMI”), which is protected from unauthorized alteration or removal under the Digital Millenium Copyright Act (“DMCA”). Accordingly, Emmerich claimed that when Particle displayed Emmerich’s content under Particle’s own URLs, it removed Emmerich’s CMI in violation of the DMCA. The district court denied these claims. Applying the Ninth Circuit’s “server test,” the district court determined that because Particle did not have a copy of the content stored on its server and only linked to Emmerich’s server, Particle did not infringe on Emmerich’s display rights. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). Moreover, the district court found that URLs serve primarily as a functional reference to locate addresses on the internet and, therefore, do not contain the markers necessary to constitute CMI. On interlocutory appeal, Emmerich presents two questions of law: (1) whether the server test is the proper standard to apply to copyright infringement claims, in accordance with the text and meaning of the Copyright Act; and (2) whether URLs can constitute CMI, subject to the safeguards of the DMCA. Given the ubiquity of linking on the internet, we recognize the great practical effects that could follow our answers to these questions. We are 2 Case: 25-60550 Document: 106-1 Page: 3 Date Filed: 08/27/2026 No. 25-60550 careful to only answer the questions of law before us, minimally. From careful analysis of the statutory texts, we conclude, first, that Particle’s manner of linking does not run afoul of the Copyright Act, although we anchor on different language than that of the server test. Second, we find that the DMCA does not foreclose URLs from constituting CMI, but given the functional purpose of URLs, for a URL to be CMI, it would need to clearly convey the characteristics required by the statute. For the reasons discussed below, we remand for proceedings consistent with this opinion— incorporating the fullness of facts related to these technologies. I. Background Emmerich owns and publishes over 26 publications both in print and online, serving communities in Mississippi, Arkansas, and Louisiana. Emmerich asserts copyright infringement claims against Particle, a news aggregator based in Mountain View, California. Particle developed a specialized search engine called NewsBreak, which connects users to news from an array of publications on both its free website and its app. In particular, NewsBreak collects local and national news content into a single newsfeed for users. Although the questions presented in this interlocutory appeal are ones of law, we must first provide a backdrop of the underlying technology at issue, as well as the pertinent provisions of the Copyright Act and the DMCA. 3 Case: 25-60550 Document: 106-1 Page: 4 Date Filed: 08/27/2026 No. 25-60550 A. Server and Linking Technology This appeal relates to two core functions that undergird the operation of the internet as we know it: servers and linking. We briefly contextualize the role of these functions in the broader internet ecosystem.1 The internet is, in essence, a network of connections. Starting with the very place a reader is likely seeing this opinion, a webpage (or its component text and images) is stored on a server. Servers, in effect, are the locus centers of the internet. They not only store content, such as webpages or various components of webpages, but also provide this content to computers that request it. Simply, servers function “to serve data to some other computer that has requested it.” Stephan S. Dalal, The Basic Operations of a Webpage, 1 Geo. L. Tech. Rev. 234, 237 (2017). The software behind servers “has three core features: the ability to handle requests by other computers; to store and organize files in a certain way; and to make those files accessible . . . through the internet.” Id. The first of these features is central to this case. To see any webpage, our computers are engaging in a series of steps behind the scenes. Servers that store, also understood as “host,” webpages can be accessed by visiting their specific addresses, or their URLs as we commonly understand them. Thus, when a user wants to visit a certain webpage, she provides the URL to her internet browser, which consequently instructs the browser on where to access the webpage—that is, where to locate the server that hosts that page. See Leader’s Inst., LLC v. Jackson, 2017 WL 5629514, at *10 (N.D. Tex. Nov. 22, 2017). _____________________ 1 This section describes the technology at issue as we understand it, principally from the parties’ and amici’s descriptions, relevant caselaw, and scholarly commentary. 4 Case: 25-60550 Document: 106-1 Page: 5 Date Filed: 08/27/2026 No. 25-60550 But the process is not yet complete. Even after locating the right server, the user’s computer must now request access to the relevant information—here, the webpage—from the server, which occurs through back-end code. Once the user’s computer receives instructions from the server, it must read and interpret them in order for the user to see the webpage. These instructions are often written in a language called HyperText Markup Language (“HTML”). Thus, when the user sees an article, for example, she is only seeing it by way of her computer interpreting the HTML instructions it received from the server that hosts the article. The above depicts a single process that may occur for a user to see a webpage. But the World Wide Web is, in fact, a web, wherein this process occurs constantly to connect users, computers, webpages, and servers alike. These connections occur through hyperlinks, the second function we are concerned with in this appeal. As we commonly recognize, links are often denoted by the blue, underlined URL, but the link itself provides the information needed for one computer to engage with another, in the process described above. Links can be integrated in a number of ways. There is simple hyperlinking, wherein a user clicks the blue, underlined link and is brought to that new webpage, as occurs when selecting a search result from Google. There is also “in-line linking,” which is at issue in this case. In-line linking, also known as embedding, is the “process by which the webpage directs a user’s browser to incorporate content from different computers into a single window.” Perfect 10, 508 F.3d at 1161. As far as its visual appearance, content from in-line links may look different depending on how a webpage is coded on the back-end. For one, it can appear to be framed, where the linked page appears in a pop-up frame from the existing page (“Framed View”). Links can also appear to be incorporated directly into the existing webpage. One form of this type of in-line linking is the “full-text reproduction” of content, whereby the linked webpage is reproduced entirely on the linking webpage 5 Case: 25-60550 Document: 106-1 Page: 6 Date Filed: 08/27/2026 No. 25-60550 (“Full-Text View”). Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:21-CV-32-KHJ-MTP, 2022 WL 3222892, at *1 (S.D. Miss. Aug. 9, 2022) (hereinafter “Emmerich I”). Having described this backdrop, we turn to Particle’s use of Framed View and Full-Text View, alongside the statutes and context at issue in this appeal. B. Framed Linking and the Copyright Act Claim The Copyright Act provides copyright owners with certain “monopoly privileges,” granting them various rights over the use of their works. See Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417, 429 (1984); 17 U.S.C. § 106. This appeal pertains to Section 106(5)’s provision of the right “to display the copyrighted work publicly.” 17 U.S.C. § 106(5). Emmerich claims that Particle infringed its display rights by showing Emmerich articles on the NewsBreak App. Similar to other news apps, the NewsBreak App links, and shows users content, through Framed View. See Emmerich I, 2022 WL 3222892, at *1. Building on the description above with respect to how linking works between a user’s computer and the webpage she would like to see, framing essentially changes the appearance of how the linked content is shown to the requesting user. From the NewsBreak newsfeed, users see a thumbnail image of an article and can click it to link to that article. Id. Then, as the embedding webpage, NewsBreak creates an empty frame within its own page and fills the frame according to the instructions it receives from the link; that is, the link connects to the address of the server for the relevant article webpage and receives instructions from that server. The frame typically populates with the linked webpage in its entirety. See Leader’s Inst., 2017 WL 5629514, at *10 (describing framing as “the user [] see[ing] the website she has visited framing the content the website instructed the web browser to retrieve from 6 Case: 25-60550 Document: 106-1 Page: 7 Date Filed: 08/27/2026 No. 25-60550 the other computer”). Users therefore see a live view of the linked webpage from the other site, but it is viewed from within the frame of the embedder, NewsBreak. Id. (explaining that the linked information is seen by users “at the same time as information retrieved from the first computer”). According to Particle, that means “what the user sees when clicking on the link in NewsBreak will change if the publisher changes the content.” Although Particle partners with certain publishers, Emmerich is an example of a non-partner publisher. For partners, Particle is permitted to host the partners’ articles on its server, with the partners receiving benefits such as shared ad revenue. But for non-partner publishers, Particle describes the NewsBreak App as showing their articles through an “industry-standard web browser directly from the publisher’s own server.” “The built-in browser . . . opens the link to the publisher’s website and the user then views the content that the publisher’s website and server publicly display.” Particle characterizes this action as “retriev[ing]” a webpage, “just as with other browsers like Chrome or Safari.” In other words, from the NewsBreak App, users could see the live page of an Emmerich article on an Emmerich site. Emmerich’s central issue with Framed View is that users “would not be aware” they were still on NewsBreak’s website without looking to the URL or noticing that NewsBreak ads are still shown. Particle disputes this and argues, for example, that the only NewsBreak elements a user would see in the frame are “a small Newsbreak ‘N’ at the top left of the screen to direct the user back to the NewsBreak news feed or search result list, as well as like, comment, and share buttons and potential ads from the App itself,” which appear outside the in-app browser component but “not to the exclusion of the publisher’s buttons and ads on its webpage.” Such factual disputes, although not before us on appeal, help color the contours of the central Copyright Act issue on interlocutory appeal. Namely, 7 Case: 25-60550 Document: 106-1 Page: 8 Date Filed: 08/27/2026 No. 25-60550 when turning to the statutory text in Part IV—as relevant to the first legal question before us—we consider how this functionality influences whether a framed view of third-party content constitutes an infringement of said third- party’s copyrights. C. URLs and the DMCA Claim In response to the “expansion of the speed and capacity of the Internet,” the DMCA was enacted to reinforce certain protections provided in the Copyright Act. S. Rep. No. 105-190, at 8 (1998). Congress passed the DMCA, in part, to “make it unlawful to intentionally provide false information, or to deliberately alter or delete information provided by a copyright owner which identifies a work, its owner or performer, and the terms and conditions for its use.” H.R. Rep. No. 105-551, Part 1, 105th Cong., 2d Sess. (1998). The DMCA protects a category of data known as “copyright management information” (“CMI”), which cannot be removed or altered by any third party. 17 U.S.C. § 1202. The statute defines what types of information qualifies as CMI, such that it can be deemed information “conveyed in connection with” the copyrighted work. Id. Emmerich asserts that its URLs qualify as CMI because they include “both the title of the work and the name of the copyright owner (i.e., the publisher).” The parties’ URL dispute derives from another scenario in which Particle displayed Emmerich articles in Full-Text View, different from the Framed View described above. In Full-Text view, Emmerich argues that Particle removed Emmerich URLs, displaying them under Particle’s own URLs. According to Emmerich, this removal of URLs is an unauthorized removal of CMI. For reference again, Full-Text View involved the full reproduction of articles. Emmerich I, 2022 WL 3222892, at *1. This occurred only on Android 8 Case: 25-60550 Document: 106-1 Page: 9 Date Filed: 08/27/2026 No. 25-60550 devices and during a period from 2019 to 2021 in which the NewsBreak App purportedly glitched. Id. Particle asserts the glitch was fixed once it was made aware.2 Emmerich describes Full-Text View as showing its article “under NewsBreak’s URL, with all Emmerich’s identifying information removed apart from the article’s headline, accompanying photograph, and full-text news article.” Particle emphasizes that this was a glitch, wherein the articles were “self-hosted” on NewsBreak as articles are when the publication is a NewsBreak partner, and the glitch was promptly fixed. But we need not explore this factual issue further and only remain concerned with the nature of URLs as CMI—the second certified legal question before us. II. Procedural History Emmerich first filed suit against Particle in January 2023 and then filed another suit in June of 2023. The two actions were consolidated. Emmerich’s claims were based on infringements regarding over 33,000 of its articles, but it later dismissed its claims as to 27,100 of the articles. Emmerich continued with its claims regarding unlawful displays of its articles in both Framed View and Full-Text View, as well as unlawful removal of its URLs. The parties proceeded to discovery, after which Emmerich moved for summary judgment. The district court initially denied its motion for summary judgment in June 2024. The parties then cross-moved for summary judgment on various claims. A year later, the district court granted in part and denied in part Emmerich’s second motion for summary judgment and _____________________ 2 Moreover, Particle clarified that, starting in 2021, it no longer linked to any articles from Emmerich’s publishers in general. 9 Case: 25-60550 Document: 106-1 Page: 10 Date Filed: 08/27/2026 No. 25-60550 granted in part and denied in part Particle’s motion for partial summary judgment. The district court granted Emmerich’s motion on its claim that articles displayed in Full-Text View violated the Copyright Act, which rested on the previous litigation between the parties in 2022 in another court in the same district. See Emmerich I, 2022 WL 3222892, at *5. It denied Emmerich’s motion and granted Particle’s motion on Framed View: the district court held that Particle’s display of Emmerich’s articles in Framed View did not amount to a display under 17 U.S.C. § 106(5) and therefore did not constitute infringement of Emmerich’s display rights. Separately, the district court held that “URLs are not conveyed in connection with a copyrighted work and therefore, do not constitute CMI,” denying Emmerich’s motion as to this claim and granting Particle’s motion. A few weeks later, Emmerich moved for an interlocutory appeal. Pursuant to 28 U.S.C. § 1292(b) and Rico v. Flores, 481 F.3d 234, 238 (5th Cir. 2007), the district court certified the following two legal questions for appeal: 1. Whether the “server test” is the proper standard for evaluating infringement on the copyright holder’s exclusive display right under 17 U.S.C. § 106(5); and 2. Whether under § 1202 a URL can be considered Copyright Management Information, and, if so, whether a URLs intentional removal constitutes a violation of § 1202(b)(1). The district court stayed proceedings pending resolution of this appeal. Emmerich timely appealed, and another panel of our court granted interlocutory review. Jurisdiction is proper, and no party argues otherwise. The district court had jurisdiction under, inter alia, 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1292(b). 10 Case: 25-60550 Document: 106-1 Page: 11 Date Filed: 08/27/2026 No. 25-60550 III. Standard of Review We review a district court’s grant of summary judgment de novo. BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436, 438 (5th Cir. 2017). Because this case presents an interlocutory appeal from a partial grant of summary judgment, our review is limited to issues of law. See Garcia v. Orta, 47 F.4th 343, 348 (5th Cir. 2022). Here, the central legal issues are interpretation of the Copyright Act and the DMCA. We interpret such statutes de novo. See BWP Media USA, 852 F.3d at 438. In light of the interlocutory posture of this appeal, we review only the two questions that were certified. First, whether the server test comports with the plain language of the Copyright Act and is the proper standard for reviewing display right infringement claims. And, second, whether URLs can constitute CMI, subject to the safeguards of the DMCA. IV. Display Right The Copyright Act grants the owner of a copyright the exclusive right, “[i]n the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.” 17 U.S.C. § 106(5) (emphasis added). Violating this right is an infringement of the copyright, redressable through damages and injunctive relief against the infringer. 17 U.S.C. §§ 501(a), 502(a), 504. Emmerich claimed that Particle’s framing of Emmerich articles infringed its display right. To assess the alleged infringement, the district court relied on the Ninth Circuit’s approach in Perfect 10, Inc. v. Amazon.com, Inc., termed the “server test.” 508 F.3d at 1159. Under this test, “the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information.” Id. The Ninth Circuit clarified that when 11 Case: 25-60550 Document: 106-1 Page: 12 Date Filed: 08/27/2026 No. 25-60550 a third-party site “does not have any ‘material objects . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated’” it cannot be viewed as “communicat[ing] a copy” and thus is not displaying a protected work. Id. at 1160–61 (quoting 17 U.S.C. § 101). The district court concluded that the server test is the proper standard to apply to such infringement claims. Rejecting Emmerich’s arguments in favor of Particle’s, the district court found that the test does not contravene the Copyright Act’s plain text or purpose. Applying the server test, the district court held that Particle’s conduct did not infringe upon Emmerich’s copyright because the NewsBreak App only showed content that was publicly displayed by Emmerich’s servers. No other circuit has disavowed the server test. Our court has not yet addressed the server test, and the question certified on appeal requires us to consider whether it is the appropriate standard for examining infringement upon a copyright owner’s right to display its content under Section 106(5), or whether the statute compels a different understanding. For the reasons discussed below, we find the server test is on weak statutory footing. Put simply, the server test focuses on the definition of display—which requires showing a fixed work. The server test rests on the idea that a work is always fixed on a server. But we shift the focus to the definition of displaying a work publicly—which requires transmitting the work. Although rooted in different statutory text, this shift likely provides similar results as the server test in many ways. To arrive at this statutory conclusion, we first anchor to the defined statutory terms before considering the server test and broader display right jurisprudence. From there, we compare the language that is most central to understanding the display right, finding that a focus on the transmittal of the 12 Case: 25-60550 Document: 106-1 Page: 13 Date Filed: 08/27/2026 No. 25-60550 content, rather than on where the content is fixed, is most faithful to the plain meaning of the text, our court’s relevant precedent, and the modern functioning of the internet. A. Defining the Display Right In a matter of statutory interpretation, we “begin with the language of the statute itself” and “follow the plain and unambiguous meaning of the statutory language.” United States v. Orellana, 405 F.3d 360, 365 (5th Cir. 2005) (internal quotation marks and citation omitted). Emmerich argues that the Copyright Act’s plain language “provides no support for the notion that infringement depends on where the display copy is fixed,” rendering the server test inconsistent with the statute’s plain language. The parties agree that the content at issue falls within the orbit of Section 106, but that “[w]hether it is protected depends on definitions of terms” found in Section 101. Thus, we must consider how the definitions within the statutory language interact. The essential language for interpretation is as follows: “to display the copyrighted work publicly.” 17 U.S.C. § 106(5) (emphasis added). Taking each definition—and nested definitions—in turn, we assemble a complete view of the statute. Display. Turning to the first defined word, to “display” a work “means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” 17 U.S.C. § 101 (emphasis added). As emphasized, to understand the full meaning of “display,” we must incorporate the meaning of “show” and “copy.” 13 Case: 25-60550 Document: 106-1 Page: 14 Date Filed: 08/27/2026 No. 25-60550 Show. The statute provides no definition for “show,” so we consider its ordinary meaning. See Cotropia v. Chapman, 978 F.3d 282, 289 (5th Cir. 2020); Wis. Cent. Ltd v. United States, 585 U.S. 274, 277 (2018). To “show” can be understood as “to cause or permit to be seen.” Show, Webster’s Third New International Dictionary (1976). Copy. As defined in the statute, copies are “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 101 (emphasis added). Additionally, “[t]he term ‘copies’ includes the material object . . . in which the work is first fixed.” Id. (emphasis added). Fixed. As previewed, one of the critical terms to define and interpret is what constitutes a “fixed” work. The statute provides: A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. § 101. Aggregating the above definitions from “display,” the Copyright Act “defines ‘display’ in very broad terms that encompass a great many activities.” R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected Solution to the Controversy Over RAM “Copies,” 2001 Univ. Ill. L. Rev. 83, 87. But our work does not end there: “the copyright owner’s exclusive right is not a right to make all displays but only a right ‘to display the copyrighted work publicly.’” Id. (quoting 17 U.S.C. § 106(5)). Thus, 14 Case: 25-60550 Document: 106-1 Page: 15 Date Filed: 08/27/2026 No. 25-60550 understanding the meaning of “publicly” serves as an essential narrowing and clarifying mechanism. Publicly. To display a work “publicly” means “to transmit or otherwise communicate” it “to the public, by means of any device or process.” 17 U.S.C. § 101. Particle, quoting the Ninth Circuit, notes that “Congress did not define ‘otherwise communicate,’ but it must ‘at least involve[] sending out some sort of signal via a device or process to be received by the public at a place beyond the place from which it is sent.’” See Columbia Pictures Indus., Inc. v. Pro. Real Est. Invs., Inc., 866 F.2d 278, 280, 282 (9th Cir. 1989). Finally, to understand the definition of “publicly,” we must also incorporate the word “transmit.” Transmit. To “transmit” means “to communicate [a performance or display] by any device or process whereby images or sounds are received beyond the place from which they are sent.” 17 U.S.C. § 101. * * * From the definitions above, the statutory language in Section 106(5)—“to display the copyrighted work publicly”—distills to the following: To show a fixed work by transmitting it to the public. With the comprehensive text in mind, we consider whether the server test comports with Section 106(5) or whether the statute compels a different approach. B. The Server Test Following its inception in Perfect 10, the server test has been applied in the Ninth Circuit for nearly two decades. To date, however, other courts— district and circuit alike—have ranged in whether to embrace, distinguish, or criticize the test. Before we analyze the statutory basis for the test, we first 15 Case: 25-60550 Document: 106-1 Page: 16 Date Filed: 08/27/2026 No. 25-60550 discuss the Ninth Circuit’s approach, followed by how it has been treated in subsequent jurisprudence in other federal courts. 1. Perfect 10 In the foundational “server test” case, the publisher of an adult subscription website, Perfect 10, sued Google and Amazon. Perfect 10, 508 F.3d at 1157. Perfect 10 owned the copyright to the images it published, and certain ones were located in a subscriber-only, password-protected area of its website. Id. Although Google did not directly include these protected images in its image search results, “[s]ome website publishers republish[ed] Perfect 10’s images on the Internet without authorization.” Id. The challenge was that Google’s search engine included in its index “the webpages containing these images,” and, by way of that, provided thumbnails of the images in response to user inquiries. Id. If the user clicked on the thumbnail, the user’s browser would “access[] the third-party webpage and in-line link[] to the full- sized infringing image stored” on the third-party’s computer. Id. Thus the user saw the image in Framed View from Google’s webpage, and Perfect 10 sued Google, asserting copyright infringement for this alleged display. Id. The central issue the Ninth Circuit resolved in this case was whether Google can be liable for its linking practices. As developed in Perfect 10, the court fastened to a particular interpretation of “fixed” in the Copyright Act. Id. at 1160. The court held that content is “fixed in a tangible medium of expression” when it is “embodied (i.e., stored) in a computer’s server (or hard disk, or other storage device).” Id. In other words, “the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner inline links to or frames the electronic information.” Id. Terming it the “server test,” the court clarified that linking to content is not an infringement because the content is 16 Case: 25-60550 Document: 106-1 Page: 17 Date Filed: 08/27/2026 No. 25-60550 not fixed through that method—it must be stored on the server in order to be fixed. As applied, the Ninth Circuit found that Google “does not have any ‘material objects . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated’ and thus cannot communicate a copy.” Id. at 1160–61 (quoting 17 U.S.C. § 101). Google only “provide[d] HTML instructions that direct[ed] a user’s browser to a website publisher’s computer that stores the . . . image,” and “HTML instructions [are] not equivalent to showing a copy.” Id. at 1161. In turn, there was no infringement of the display right because Google merely provided coded HTML instructions to request the content from the server hosting it. The Ninth Circuit has reaffirmed the server test since Perfect 10 was decided nearly two decades ago. See, e.g., McGucken v. Valnet, Inc., 2024 WL 5166624, at *1–2 (9th Cir. Dec. 19, 2024), cert. denied, 145 S. Ct. 1965 (2025). That court has applied the server test outside of the search engine context as well. In Hunley v. Instagram, LLC, plaintiffs alleged that Instagram violated their exclusive display right by permitting third-party sites to embed the photographers’ Instagram content. 73 F.4th 1062 (9th Cir. 2023). The court held that “[t]he application of the Server Test depends on the method used for displaying a photo—not the context in which the photo is displayed.” Id. at 1071. The process used in Hunley is the “same process used by Google to show users third-party images: embedding.” Id. Embedding, as described in Section I.A, is the type of linking where the embedding website will follow the HTML instructions it receives from the host website the content is stored on, after which “the browser will retrieve the image, caption, and formatting from the host website and display all these elements alongside content from the embedding website.” Id. at 1064. As the Hunley court described, “[t]he final product will show the external image ‘embedded’ seamlessly into a third-party website.” Id. There, the Ninth Circuit again applied the server 17 Case: 25-60550 Document: 106-1 Page: 18 Date Filed: 08/27/2026 No. 25-60550 test to find that embedding, with no content stored on the alleged infringer’s computer, is not copyright infringement. Id. 2. Subsequent Jurisprudence No circuit has yet adopted the server test outright, but other courts’ internet–copyright jurisprudence provides informative reasoning nonetheless.3 Starting with the First Circuit, in Society of Holy Transfiguration Monastery, Inc. v. Gregory, the court considered, in part, whether an Archbishop violated the Monastery’s display rights to certain translated works by posting “verbatim or near-identical versions” to his own website. 689 F.3d 29, 36–38 (1st Cir. 2012). Deeming the posted translations to be sufficiently similar to the Monastery’s, the court also considered whether the Archbishop’s works were “fixed” and applied an interpretation similar to the Ninth Circuit. Id. at 55. The court recognized that the copies at issue “were embodied or ‘fixed in a tangible medium of expression,’ as they were loaded on the [defendant’s] computer server and posted to his Website.” Id. (first quoting 17 U.S.C. § 101; then citing Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 129 (2d Cir. 2008); and then citing Perfect 10, 508 F.3d at 1160). The court also found the copies met the “transitory duration” requirement under the statutory definitions “as they were _____________________ 3 In addition to the First and Seventh Circuit cases discussed in this section, the D.C. Circuit has considered an analogous case. See IMAPizza, LLC v. At Pizza Ltd., 965 F.3d 871, 877 (D.C. Cir. 2020) (reasoning, in the context of the reproduction right, that the “ephemeral transmission of a picture across the internet” does not constitute a “copy”). The Second Circuit also recently commented on the server test but, because the defendant did not take a position on whether “publication via embedding constitutes the making of a copy under the Copyright Act and thus whether it can give rise to a claim for infringement,” and instead assumed, arguendo that its embedding was actionable, the court did not decide whether to adopt the server test. Richardson v. Townsquare Media, Inc., No. 25-291-CV, 2026 WL 1097502, at *2 n.2 (2d Cir. Apr. 23, 2026). 18 Case: 25-60550 Document: 106-1 Page: 19 Date Filed: 08/27/2026 No. 25-60550 continuously displayed on the Archbishop’s Website.” Id. Accordingly, this constituted a violation of the display right. Id. The Seventh Circuit, in a case that parallels the present appeal in key ways, reached a similar outcome, although its decision turned on the process of transmitting. In Flava Works, Inc. v. Gunter, copyright owner Flava Works produces and distributes adult content to websites that are behind paywalls. 689 F.3d 754, 755–56 (7th Cir. 2012). The alleged infringer was “myVidster, an online service engaged in what is called social bookmarking,” where its users can point others to content of interest, after which myVidster requests the “‘embed code’ from the server that hosts . . . the video,” and then “creates a web page that makes the video appear to be on [its] site.” Id. at 756. The issue specific to Flava Works was that a myVidster user had uploaded a copy of a Flava Works video, which was bookmarked and then myVidster linked to that copy. Id. Flava Works thus sued myVidster for violating, in part, its exclusive public performance right. Specifically, Flava Works asserted that myVidster was responsible for contributory infringement (sometimes referred to as secondary liability), which is “personal conduct that encourages or assists the infringement.” Id. at 757. This is different from direct infringement or liability, as Perfect 10 involved. The Seventh Circuit found no such infringement occurred. Although different than the display right, we find the Flava Works court’s reasoning apt. In particular, the court determined that providing users with links to content “is not transmitting or communicating.” Id. at 761 (cleaned up); see also id. at 757 (“Like a telephone exchange connecting two telephones, [myVidster] is providing a connection between the server that hosts the video and the computer of myVidster’s visitor.”). Put simply, the court determined that “giving web surfers addresses where they can find entertainment” on websites through “embed[ded] code” is no more infringement than the New Yorker’s “listing plays and giving the name and 19 Case: 25-60550 Document: 106-1 Page: 20 Date Filed: 08/27/2026 No. 25-60550 address of the theaters where they are being performed.” Id. (citing Perfect 10,