A Mississippi newspaper publisher‘s copyright case has the potential to upend a legal shield for websites that embed and display—but never possess—copyrighted materials, after the Fifth Circuit appeared willing Tuesday to reject the nearly two-decade-old test.
During oral arguments before the US Court of Appeals for the Fifth Circuit, Emmerich Newspapers Inc. argued against the “server test” and said Particle Media Inc.'s NewsBreak app violated the display right of its copyright-protected work.
The appeal stems from a federal district judge’s mixed summary judgment ruling that was followed by an order allowing Emmerich to seek the Fifth Circuit’s view on the validity of the widely adopted but controversial test. The lower court also certified for appeal the question of whether a URL can be considered copyright management information that can’t be removed or altered.
Several third parties—including newspaper industry and photographer trade groups, copyright scholars, library organizations, public interest groups, internet groups and Google LLC—have since filed amicus briefs weighing in on both sides.
Created in the Ninth Circuit’s 2007 Perfect 10 v. Amazon.com decision, the server test has yet to be rejected despite mounting district court scrutiny in recent years.
The three-judge panel Tuesday skeptically probed both sides’ positions on applying pre-internet copyright law to the app, which Particle frames as a search engine.
Judge
“The statute’s trying to give creators an exclusive right to display their product,” Higginson said. “It’s hard to understand how there isn’t an infringement if everything on your site is somebody else’s work product.”
‘Backbone of the Internet’
Particle’s attorney, Stephen J. Carmody of Brunini Law, responded that NewsBreak does the same thing as Google and any other search engine: it displays snippets and headlines with the ability to click through to the news site.
He said the lower court correctly found that Particle didn’t transmit the snippets within the meaning of copyright law because there was nothing tangible for it to copy or transmit. He also said the server test has “been the backbone of the internet for 20 years.”
“The free exchange of information from one browser to another, one website to another. That’s the whole building block of the internet,” Carmody said. “And what they want to do is eliminate that building block. They want you to say, ‘you can do that, but you gotta pay me for it.’”
Higginson asked Emmerich’s attorney, Michael B. Wallace of Wise Carter Child & Caraway PA, whether any “limiting principles” would apply if the court were to find that the server test runs contrary to the Copyright Act’s display right.
“Why wouldn’t your argument statutorily then apply to search engines like Google sending us photos?” the judge asked.
Wallace said that while various parties interact to cause material to be displayed on the internet, courts should apply the “volitional test": who in that “chain of causation” is the driving force that caused the particular violation.
“Did you do something that is what the statute is trying to regulate?” Wallace said. “And in this case, their whole business plan is.”
The parties disputed Wallace’s assertion that nothing in the record supported Particle’s claim that Emmerich could block NewsBreak’s use of the materials. Wallace said it showed that Emmerich struggled with blocking NewsBreak, and regardless, “the idea that my client could have stopped it is no better defense in law than if a burgler says ‘you should have bought a better lock.’”
Higginson asked why, considering Particle’s interpretation of the law, the company bothers to have licensing agreements with others news partners.
Carmody responded that in those scenarios both sides benefit. But Higginson pressed further by saying that Particle’s benefit to paying for a license is that the generally larger outlets won’t block their use of their work.
“So it’s the suckers that don’t have the ability to block that you’re going to grab from, that you’re going to cut deals with,” Higginson said.
Judges Carolyn D. King and Stuart K. Duncan also sat on the panel.
Wilson Carroll PLLC, Barrett Law Group PA, and Cuneo Gilbert Flannery & LaDuca LLP also represent Emmerich.
The case is Emmerich Newspapers, Inc. v. Particle Media, Inc., 5th Cir., No. 25-60550, oral argument held 6/2/26.