The Fifth Circuit ruled on August 27, 2026 that it will not follow the “server test,” the longstanding Ninth Circuit approach to determining copyright liability based on where content is stored, even as it left intact a lower court’s dismissal of infringement claims against news aggregator NewsBreak.

Under the server test, established in Perfect 10 Inc. v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007), a website does not “display” content it merely links to or frames unless that content is actually stored on its own servers. A Mississippi federal court relied on this test to hold that NewsBreak’s app did not infringe Emmerich’s display right because the app frames articles from Emmerich Newspapers’ own servers. The Fifth Circuit agreed with the outcome but not the reasoning, saying that the server test stands on weak statutory grounding.

Rather than anchoring the analysis to the term “fixed,” as the Ninth Circuit did, the panel focused on the statutory requirement to publicly transmit a work. Judge Stephen A. Higginson compared NewsBreak to a switchboard operator: just as an operator cannot connect a call without the recipient picking up, NewsBreak cannot transmit Emmerich’s content without Emmerich’s own servers transmitting it first. The court dubbed this the “transmit requirement,” noting that it will often produce results similar to the server test, even though it rests on a different textual hook.

The panel also addressed whether Emmerich’s URLs could qualify as copyright management information protected under the DMCA, concluding that a URL could qualify only if it clearly conveys the specific characteristics the statute requires.

However, the court emphasized the limits of its own ruling. Because the appeal arose from an interlocutory posture, before full factual development, the panel expressed no view on how Emmerich’s claims should ultimately be resolved.

In any case, the decision underscores that the law around linking and embedding somehow remains unsettled, despite this issue having outsized practical stakes given how central these techniques are to the modern internet. With Second Circuit district courts already skeptical of the server test and the Fifth Circuit now charting its own course, publishers and platforms alike should expect this question to keep generating litigation and likely inconsistent answers.