The United States Court of Appeals for the Fifth Circuit has declined to adopt the “server test,” a legal standard that assesses copyright liability based on the physical location of online content storage. This decision diverges from the Ninth Circuit’s approach, which has traditionally relied on the server test to determine whether embedding content from external servers constitutes copyright infringement.
The case in question involved Particle Media Inc., the operator of the NewsBreak app, which aggregates news content. The plaintiff, Emmerich Newspapers, alleged that NewsBreak infringed upon its copyrights by embedding content from Emmerich’s servers without authorization. The district court initially applied the server test, concluding that because NewsBreak did not host the content on its own servers, it did not infringe upon Emmerich’s display rights. ([ca5.uscourts.gov](https://www.ca5.uscourts.gov/opinions/pub/25/25-60550-CV0.pdf?utm_source=openai))
Upon appeal, the Fifth Circuit rejected the server test, stating that it is “on weak statutory footing.” The court emphasized that the Copyright Act does not necessitate possession of the material for a display right violation to occur. Instead, the focus should be on whether the work is transmitted to the public, regardless of where it is stored. ([ca5.uscourts.gov](https://www.ca5.uscourts.gov/opinions/pub/25/25-60550-CV0.pdf?utm_source=openai))
Despite this departure from the server test, the Fifth Circuit ultimately upheld the lower court’s dismissal of the copyright infringement claims against NewsBreak. The court found that, under the specific circumstances of the case, NewsBreak’s actions did not constitute a violation of Emmerich’s display rights. ([ca5.uscourts.gov](https://www.ca5.uscourts.gov/opinions/pub/25/25-60550-CV0.pdf?utm_source=openai))
This ruling creates a notable split between the Fifth and Ninth Circuits regarding the application of the server test in copyright infringement cases. The Ninth Circuit has previously held that embedding content from external servers does not constitute a display under the Copyright Act, as the content is not stored on the defendant’s server. ([lexology.com](https://www.lexology.com/library/detail.aspx?g=474516ba-e35f-4915-a919-3a22c9992a3c&utm_source=openai))
The Fifth Circuit’s decision may have significant implications for online content providers and aggregators, as it suggests that embedding content from external sources could potentially lead to copyright liability, even if the content is not hosted on the provider’s own servers. This divergence between circuits may prompt the Supreme Court to address the issue to establish a uniform standard for assessing copyright liability in the context of embedded online content.