Fifth Circuit Looks at "Embedding" From a Fresh Angle, Explores Whether URLs Are CMI

On August 27, 2026, the Fifth Circuit issued its opinion in the interlocutory appeal of Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, answering the always controversial issue of whether "embedding" content is a "display" under the Digital Millennium Copyright Act (DMCA), and a significant question concerning copyright management information (CMI) claims, which often accompany infringement claims.

More specifically, the decision addresses: (1) whether the "server test," created by the Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), is the proper standard for assessing copyright infringement claims premised on a defendant's "in-line linking," or "embedding," of online content; and (2) whether website URLs can constitute CMI under the DMCA.

As discussed below, the Fifth Circuit disavowed the "server test," finding it inappropriate to determine whether embedded content is infringing. Instead, the court adopted an alternative test for assessing embedded content, calling it the "Transmit Requirement." Under this test, a copyright owner cannot state a claim for copyright infringement premised on the presentation of embedded content unless they show either (1) that the transmitted content originated from an unauthorized source (e.g., the defendant's own servers), or (2) that the defendant obtained and transmitted the content without authorization, perhaps by circumventing technological measures meant to protect content. While different from the server test in Perfect 10, the Fifth Circuit acknowledges that the Transmit Requirement is unlikely to produce meaningfully different results. Finally, the Fifth Circuit did not foreclose the possibility that URLs can serve as CMI under the DMCA but remanded for factual development before that status could be recognized.

Factual Summary

The dispute centered on Particle Media's "NewsBreak," a news aggregation website and application compiling local and national news into a single online feed with embedded links for each article. When a user clicked on the embedded link, an "empty frame" popped up on the webpage that is "populated" with the desired article's content for viewing. Particle Media did not store any of this content on its own servers. Instead, the link connected to the URL of the server for the relevant article and received instructions from that server to fill the frame. In other words, Particle Media merely offers a "live view of the linked webpage from the other site, but it is viewed from within the frame of the embedder, NewsBreak."

Emmerich alleged that Particle Media displayed thousands of Emmerich-owned articles on the NewsBreak application over several years, infringing upon Emmerich's exclusive right to the public display of its own content. Emmerich also claimed that its respective URLs for this content constitute "copyright management information" ("CMI"), which is protected from unauthorized alteration or removal under the DMCA. Thus, Emmerich claimed that when Particle Media displayed Emmerich's content using Particle's own URLs via Full-Text View, it removed Emmerich's CMI in violation of the DMCA.

The district court denied Emmerich's claims. Applying the Ninth Circuit's "server test," which holds that "the owner of a computer that does not store and serve the electronic information to a user is not displaying that information" within the meaning of the Copyright Act, the district court determined that because Particle Media did not have a copy of the content stored on its own servers and only linked to Emmerich's server, Particle Media did not infringe on Emmerich's display rights. The district court likewise found that because URLs serve primarily as a functional reference to locate addresses on the internet, they do not contain the markers necessary to constitute CMI. Emmerich's interlocutory appeal followed.

The Fifth Circuit's Decision

The Transmit Requirement

Most notably, the Fifth Circuit found that the Ninth Circuit's server test rests on "weak statutory footing" and instead adopted a new standard applicable to embedding, which it called the "Transmit Requirement." As the Fifth Circuit tells it, the Transmit Requirement is a two-fold test: "first, locating where the transmission originates and, second, determining whether the transmission was permitted." In effect, this creates two possibilities for stating a copyright infringement claim premised on the presentation of content via embedded links: (1) show that the defendant transmitted the content from an unauthorized source (e.g., its own servers), or (2) demonstrate that the defendant obtained and transmitted the content without authorization, perhaps by circumventing technological measures meant to protect content—thereby placing the "onus of protecting their work on the copyright owner or authorized source."

The Fifth Circuit's analysis of the issue went through several steps. We summarize each in turn.

First, the Fifth Circuit grounded the transmit requirement in the text of the Copyright Act. After evaluating the meaning of 17 U.S.C. § 106(5) through its terms and related definitions found in 17 U.S.C. § 101 (including terms found within those definitions), the Fifth Circuit believed that the display right can be distilled as granting copyright owners the exclusive right "[t]o show a fixed work by transmitting it to the public," thereby anchoring its approach to the phrase "transmit." According to the Fifth Circuit, the right thus gives the copyright owner the freedom to (1) choose who is authorized to transmit the work, and (2) dictate who has access to the transmission.

• The Court began by noting the operative language found in 17 U.S.C. § 106(5), which grants the exclusive right "to display the copyrighted work publicly." The Court noted that discerning the proper test in this context thus required an understanding of what "display" and "publicly" meant.
• To do this, the Court first conducted a textual analysis of the term "display" by looking to its definition in 17 U.S.C. § 101, along with the definitions of other associated terms. In doing so, the Fifth Circuit initially found that "display" was draped in "very broad terms that encompasse[d] a great many activities."
• At the same time, the Court noted that "publicly" should be treated as a "limiting factor" against the broad strokes of "display" because of their paired inclusion in 17 U.S.C. § 106(5). On that note, the Fifth Circuit observed that under 17 U.S.C. § 101, "publicly" means "to transmit or otherwise communicate" a copyrighted work "to the public by means of any device or process." Although Congress did not define "otherwise communicate," the Fifth Circuit noted that "transmit" under the Copyright Act 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."
• From this, the Fifth Circuit held that 17 U.S.C. § 106(5) could be distilled as granting copyright owners the exclusive right to "show a fixed work by transmitting it to the public."
• In doing so, the Court rejected Emmerich's dual positions that "transmit" should mean either "to communicate" or "to cause to be seen," explaining that these definitions were insufficiently grounded in the technological reality of embedded content found on websites like web aggregators. For example, the Fifth Circuit quoted from an amicus brief authored by "Copyright Scholars," observing that "[e]mbedding does not itself transmit or host the displayed copy"; it only "directs a user's device to retrieve content from a third-party server that controls the transmission." So, "the host server retains ultimate control over whether and what content is transmitted in response to a request," not the alleged infringer. Thus, the Fifth Circuit expressly held that "pointing or directing a user's browser to request and receive the copyright owner's own copy does not involve transmitting, or communicating, the content 'beyond the place from which [it is] sent.'" (quoting definition of "transmit"). "If the transmission must come from the content owner in order for a user to see any content at all, then no copyright liability exists for the linking site"; "one cannot transmit content it does not have."
• Finally, the Fifth Circuit noted that this distillation was consistent with other sections of the Copyright Act, including the definition of "display." The Fifth Circuit specifically noted that "display," as defined by 17 U.S.C. § 101, meant "to show a copy," and that the ordinary meaning of the term "show" was "to cause or permit to be seen," Show, Webster's Third New International Dictionary (1976). But extending liability to web aggregators like Particle Media, which merely provide coded HTML instructions to request the content from the server hosting it, requires a "long chain [that] divorces the word 'cause' from the word 'display.'"

Second, the Fifth Circuit asserted that the Transmit Requirement is "supported by [its] precedent regarding volitional conduct and is vitally congruent with the natural opt-out structure of the internet." Regarding its precedent, the Fifth Circuit noted that it had formally adopted a volitional-conduct requirement for copyright-infringement cases in BWP Media USA, 852 F.3d 436 (5th Cir. 2017). Volition could be interpreted to "require[] a relationship between the system owner and the copyrighted work that will permit the owner to prevent infringement of the work without the necessity of monitoring the behavior of third parties." Web aggregators like Particle Media, however, "only host[] the platform that receives content when transmitted from the copyright owner," which was not volitional activity. Regarding the natural opt-out structure of the internet, the court found that its Transmit Requirement eases the "inherent tension" between the internet (an opt-out system) and copyright law (an opt-in system). In doing so, the Transmit Requirement shifts "the focus to the statutory requirement that the content be transmitted by an authorized source, often the copyright owner—and, critically, that the source allow the transmission." In footnote 13 of the opinion, the Fifth Circuit admitted that this approach places "the onus of protecting their work on the copyright owner or authorized source."

Finally, the Fifth Circuit acknowledged that its opinion was limited. For one, the decision leaves open the ways in which the "transmit requirement" will develop when applied to true factual circumstances. For example, there remains a "lurking question" as to how the Transmit Requirement would apply if a copyright owner "had no technological capability to reject the transmission request." Next, the applicability of the fair use doctrine is not addressed. And finally, the Court acknowledged that protections for circumventing copyright owners' measures for guarding their own content remain relevant via Section 1201 of the DMCA. With that, the case was remanded to the district court for further proceedings.

URLs Can Be CMI

To address the issue of whether Emmerich can assert that its URL constitutes CMI, the Fifth Circuit broke the issue down into two sub-issues. First, "whether URLs may be considered CMI under the DMCA and, second, if so, whether the intentional removal of that URL constitutes a violation of DMCA Section 1202(b)(1)."

As to the first issue, the Court held that URLs can be considered CMI under the DMCA. To do so, the Court focused its analysis on the text of Section 1202(c), which defines CMI as "any of the following information conveyed in connection" with a display of a work, including:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.

…

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

…

(7) Identifying numbers or symbols referring to such information or links to such information.

URLs, according to the Fifth Circuit, are capable of imparting or communicating CMI within the meaning of Section 1202(b)(1)'s use of "convey." But the Fifth Circuit simultaneously acknowledged that "there are challenges that make this a high bar." First, URLs "first and foremost serve a function" of identifying the location of the work, not conveying its title. Second, URLs are not normally structured to convey CMI; some "may contain a website descriptor close to the title of an article, while others contain more general phrases or even numerical identifiers." Finally, "many websites may be copyrighted under a group registration, making any conveyance of notice more difficult." Domain names, according to the Fifth Circuit, "cannot provide a standalone basis for a URL to be CMI" because of a domain name's functional nature and the fact that it may not identify the copyright owner. But a website descriptor (e.g., "Jonestown-studies-speed-bumps-safety-concerns") may be CMI in some cases. To qualify as CMI, the URL "must connect to an address that displays CMI, such as a page that contained a website's copyright, disclosure, and permissions," and be stable enough to "provide notice of the CMI it is linked to."

Thus, the Court remanded to the district court for consideration of whether Emmerich's URLs contain any of the CMI hallmarks as discussed above, and if so, whether the alteration or removal of them was done in such a way as to violate the DMCA.

Analysis

As the Fifth Circuit summarized, a number of district courts have disagreed with the Ninth Circuit's server test, making the once-common media practice of embedding third-party content riskier. By contrast, Emmerich fashions a new test, but it is one that is likely to lead to similar results as Perfect 10 in most cases, breathing potential life back into the practice of embedding.

While there may not be enough daylight between Perfect 10 and Emmerich to create a circuit split supporting Supreme Court review, it seems likely that other federal circuits will reach different conclusions, leading the Supreme Court to review the issue of whether embedding is a display under the Copyright Act and therefore potentially infringing. As the issue percolates more, online publishers should continue to be careful.

Emmerich's holding on CMI is common-sense but clarifying. But the holding on embedding marks an interesting change of course on an issue that may ultimately rise to the Supreme Court

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Jim Rosenfeld is a partner and Zachary Bass is an associate in DWT's New York office. For more insights, reach out to Jim, Zachary, or another member of our media & entertainment team and sign up for our alerts.