Does a website infringe the display right under copyright by “framing” a work posted on another website using inline linking?  The Ninth Circuit has long said no, reasoning that the display occurs when the original uploader puts the work on its server and makes it available to the internet (the “server test”).  The District Courts in the Southern District of New York have said yes, that making the work appear as part of another webpage is a display under the Copyright Act.  Until now, no other Court of Appeals has ruled on the issue.

The Fifth Circuit Court of Appeals has now spoken.  Emmerich Newspapers, Incorporated v. Particle Media, Incorporated, 2026 WL 2530247 (5^th Cir. 8/27/26) (“Op.”).  Nominally rejecting the Ninth Circuit server test, the Fifth Circuit nevertheless adopts the view that “display” cannot occur under the Copyright Act without possession of a copy of the displayed work, and that inline linking is legally indistinguishable under the Copyright Act from ordinary linking.

Facts

Emmerich Newspapers, a publisher, sued Particle Media, a news aggregator for infringement of Emmerich’s display right.  Particle Media linked to news posted on the Emmerich website.  Particle’s links included inline linking, also called “framing,” meaning that Particle’s links made stories and pictures posted by Emmerich appear to viewers of Particle’s website within Particle’s website.

Inline linking raises the issue of the display right under the Copyright Act, §106(5).  Inline linking differs from ordinary linking, which shows the viewer only the link and not the linked matter.  While it seems plausible that making a story or photograph or other copyrighted work visible to the viewer of a website would perforce constitute “display” for purposes of the Copyright Act, the Ninth Circuit has taken the position that the display only occurs when the work is first uploaded to the uploader’s server.  Websites that inline link to that work are not viewed as creating an independent “display”:  it is as if the linking websites are acting merely as telescopes enabling the user to see what has already been displayed by the uploader.  This view of the law is called the “server” test, which was adopted by the Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9^th Cir. 2007) and adhered to by the Ninth Circuit since then.

District courts, mostly in the Southern District of New York, have rejected the server test.  Those courts have taken the view that the linking website is displaying the copyrighted work on its own website and thereby infringing the display right under the Copyright Act.  Before the Emmerich decision, however, no Circuit Court had taken a position on the Ninth Circuit server test.

The issue is of substantial commercial importance.  Businesses wish to attract users to their websites.  Ordinary linking accomplishes that object for the linked site:  If the user wants to see the linked content, the user clicks on the link, and is taken to the linked site, replete with everything that the linked site wants the user to see.  Inline linking doesn't take the user to the entire linked site, instead just loading the particular linked portion, thereby depriving the linked site of traffic.

The Circuit Court’s Decision

Recognizing that no other Circuit Court has spoken on the issue except the Ninth Circuit, the Fifth Circuit made a meticulous analysis of the Copyright Act’s definitions of the relevant statutory terms to determine if inline linking, which it also referred to as “embedding,” violates the display right.  The Court found those definitions compelled it to hold in favor of the inline linker.

The Fifth Circuit's analysis went as follows:

First, the definition of “display” in §101 (all section references are to Title 17, U.S. Code) is:  “… to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process...” (emphasis in Court’s opinion) Op. at *6.

Proceeding to the definition of “show,” the Fifth Circuit found no statutory definition and instead applied “its ordinary meaning” which the Fifth Circuit found in a dictionary as, “to cause or permit to be seen.” Op. at *6

The Court then noted the statutory requirement that the “display” be “public,” and quoted the definition of “publicly” in §101:  “’Publicly.  To display a work ‘publicly’ means ‘to transmit or otherwise communicate’ it ‘to the public, by means of any device or process.’” Op. at *7.

To determine whether the inline linker “transmits” the work, the Court moved on to the §101 definition of “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.”’” (brackets in Court’s opinion).  Op. at *7.

The Court concluded that this statutory language “distills to the following:  to show a fixed work by transmitting it to the public.” (The Court did not discuss the “otherwise communicate” language in the definitions of “copy,” “fixed” and “publicly” except to quote without comment defendant’s argument quoting, in turn, the Ninth Circuit, saying that it must “at least involve[ ] sending out some sort of signal via a device or process….” There was no explanation of why the transmission of the defendant’s website, containing the plaintiff’s work, to the viewers did not qualify as “some sort of signal.”) Op. at *7.

Addressing the Ninth Circuit's server test, the Fifth Circuit concluded that the Ninth Circuit was incorrect in construing “fixed” as requiring that the transmitter have possession of a fixation of the work.  Nevertheless, the Fifth Circuit focused on the word “transmit” and concluded:  “although we take different routes to get there, both the server test and the test we announce end up in a similar place:  a website cannot transmit a work that it does not have.” Op.at *10.

The Fifth Circuit applied the statutory definitions to the mechanics of inline linking.  It stated that the process of inline linking only “directs a user's device to retrieve content from a third-party server that controls the transmission.” Quoting from an amicus brief, the Court focused on what it found to be the fact that the uploader’s server “controls the transmission.” It concluded that inline linking or framing a work from another website “does not itself transmit or host the displayed copy.” The linker “merely sent to the user's browser instructions for where the copy resided (typically plaintiff's own website), and from which the instructions for actually displaying the work occurred.” The Court said “importantly, “the host server retains ultimate control over whether and what content is transmitted in response to a request.” Op. at *12.

The Court concluded that the host server, not the inline linker, was “responsible for communicating the copy,” and found that conclusion to be dispositive of the issue:

Therefore, we conclude 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.” (emphasis in original)

Op. at *12.

Again quoting the definitional section of the Copyright Act, §101, the Court went on to say, “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. If not, we must find where the transmission originates.  Simply, one cannot transmit content it does not have.  We call this “the transmit requirement.” Op. at *12.  The fact that the viewer sees the content on the linker’s website and nowhere else did not make the delivery of that view to the viewer a “transmission” in the Court’s view.

The Court went on to equate inline links to ordinary links, saying that “connecting does not equate to displaying.  To hold otherwise would be to extend liability to webpages or search engines that provide links to another page, as they, too, would be “causing” the display.” Op. at *13 (emphasis in original).

The Court rejected the simple perception of a user that the linked work appears as if it were displayed on the inline linker’s website because the Court felt compelled to its mechanics-driven conclusion by the statutory language:

We recognize that there is an apparent tension between how users may view this technology and what the Copyright Act's language compels us to find.  Linking, specifically in-line linking, can make content appear as though it is on the host or third-party webpage.  But, in our Article III role, our obligation is to interpret the constraining language—especially its nested definitions—as enacted by Congress

Op. at *14,

The Court did add one qualification based on its understanding of the mechanics of uploading and the options available to the uploader.  The Court stated that the current technology gives the uploader the option to prevent inline linking to the uploaded work and thereby put the burden of preventing inline linking on the uploader.  The Court said,

Our analysis has rested on two principles:  (1) the transmission of the copy is from an authorized source, whereas the embedding webpage only makes a transmission request; and (2) the authorized source could have rejected the request.  Yet, there is a lurking question of how this approach would need to transform if a copyright owner had no technological capability to reject the transmission request.  (emphasis added)

Op. at *14.

Wrapping up, the Court summarized its holding as follows:

In light of the foregoing discussion, our decision should not be understood to mean that embedding will always be permissible.  We have focused on the first step of the analysis—whether there was infringement at all based on where the transmission originates.  (emphasis added)

Op. at *18.

Significance of Emmerich

With the sole reservation that the Emmerich decision would not control in a technological regime where the uploader could not technologically prevent “embedding,” the Fifth Circuit has held that infringing “display” cannot occur without possession of a copy of the displayed work, a conclusion with the same effect for inline linking as the Ninth Circuit’s server test.  This mechanical construction of the Copyright Act recalls the two cable television decisions that led to Section 111 of the current Copyright Act, Fortnightly and Teleprompter.  Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Teleprompter Corp. v. Columbia Broadcasting, 415 U.S. 394 (1974).  Taken together, those decisions held that the process of capturing over-the-air television signals and delivering them to cable company customers who could never have received those signals because they were too far away from the broadcasting station fell more on the side of receiving signals rather than transmitting them or retransmitting them.  Thus, even though the cable company was performing a service indistinguishable from rebroadcasting television shows outside of their regular and intended transmission areas (and getting paid for it), the Supreme Court found no infringement and left the matter to Congress to adjust if desired.  Congress responded with §111, mandating the payment of royalties for retransmitting those signals.

Could a royalty regime like §111 be constructed for inline linking? While the sheer number of websites that might be inline linked and the possible number of such links is daunting, it seems entirely possible that the combination of the vast data capturing power of modern computing apparatus, combined with the power of artificial intelligence to digest umptybytes of data could provide a solution - if one is desired.